Posted on Tuesday, February 16th, 2021 at 10:51 am
Virginia and North Carolina Workers Compensation Attorney Joe Miller here breaks down, in simple, easy-to-understand terms, the basics of Medicare Set-Asides (MSA’s)–What is it and why do you need one in your workers comp settlement? You just received some kind of authorization for a company you have never heard of that you are being asked to sign. The Authorization gives this company the authority to obtain all of your medical records and submit them to something called CMS. What the heck is going on? Joe Miller explains all in this comprehensive explainer video on MSA’s.
Posted on Wednesday, February 3rd, 2021 at 3:55 pm
Virginia and North Carolina Workers Compensation Attorney Joe Miller explains why it is so critical to your case to obtain a current work note or disability slip after each and every appointment with your primary, authorized treating physician. Failure to present valid work notes at your hearing could mean you will be unable to prove you are entitled to weekly checks.
Posted on Tuesday, December 8th, 2020 at 1:32 pm
We’ve written before about some of the types of accidents workers have when the weather gets cold – Worker’s Compensation and Winter Safety | Joe Miller Law, Ltd. (joemillerinjurylaw.com). Some of the major types of cold-weather accidents and injuries for workers include. Probably the most common type of injury is a slip and fall due to ice, melting water, and slippery surfaces. Cold weather cause potholes and pavement cracks which can also make falls likely.
Common cold weather injuries include frostbite, hypothermia, and back injuries. People who work outside such as construction workers, agricultural workers, and roadway maintenance crews are most at risk of suffering from the cold.
Unfortunately, the notion of a worker’s compensation claim for injury such as frostbite or hypothermia is not as easy as a normal type of “accident” such as a slip or fall. This is because usually, frostbite and injuries like it occur over a span of time, sometimes days, and not in a particular moment. Generally, with very few exceptions, workers compensation law in both Virginia and North Carolina do not permit recovery for repetitive trauma injuries. In other words, if you cannot pin down your injury to a very specific period of time as well as conditions and assignments, you will have no case.
A review of the case law tends to indicate that in, for instance, a frostbite situation, if the frostbite is brought on over several days or months in the cold weather, it may be difficult to bring a workers’ compensation claim for an injury by accident. If, however, the frostbite occurs as a result of a very limited, say, four or five hour uninterrupted exposure to extreme cold due to a set of tasks that the injured worker is required to perform, that may satisfy the requirement that the injury occur during a specific, identifiable period of time. Of course, this must be backed up with a qualified physician’s opinion.
All that being said, there may be another option that is revealed by a review of the case law. Frostbite, hypothermia and other such cold-induced conditions could also be considered to be an occupational disease. To bring such a case, one would have to show, through clear and convincing evidence, that the unique conditions of work brought about the injury. Again, one needs to be prepared with a very clear physicians’ opinion that the specific injuries were a result of exposure to extreme cold at work.
Many cold weather injuries are preventable with proper planning, training, and safety protocols. Some of these common strategies include:
Workers have two priorities if a cold-weather injury such as frostbite or hypothermia is suspected: The first is to get immediate help. If the employer has in-house health care, they can help there. Otherwise, it’s advisable to call 911 or contact your emergency room. Workers may be in shock. The worker may not be aware of the extent of their injuries. Emergency medical personnel should be able to advise the worker and a supervisor whether the worker can be moved safely to the hospital or if emergency on-site care is needed.
The second priority is that workers who are physically able to need to notify their employer (usually a supervisor or manager) that they can’t work anymore due to the cold. If you can’t tell your employer immediately, you should inform your employer as soon as possible after you receive emergency medical treatment.
As mentioned above, unless one suffered an accident such as slipping on ice, workers who suffer injuries due to cold weather conditions such as frostbite or hypothermia may find it more difficult to prove their claim. If they cannot prove that the frostbite or hypothermia was a result of a very defined and specific period of time of no more than a few hours of exposure to extreme cold, the only other option would be to attempt to prove their case through the means of occupational disease, which is more difficult.
Assuming the injured worker could prove his or her claim, the worker would have the right to file for workers’ compensation. Many injuries can take weeks or months to heal. During the time period where the worker is unable to work, the worker is entitled to:
Workers and employers should also advise and prepare their workers for cold weather by:
Some ways to keep warm (and things to avoid) include:
Many workers such as truck workers and delivery workers are entitled to workers’ compensation benefits if they are injured as a result of an accident while making deliveries. Salespeople and other workers may be entitled to work injury benefits too – if they have a vehicle accident AND if the accident occurs during the scope of their employment. With some exceptions, commuting back and forth to work is not considered within the scope of employment.
A few common safety tips for cold weather driving include:
According to Business Insurance:
“Construction and utility, postal carriers, delivery personnel and employees in other similar positions may be negatively affected by improper protective clothing and training in the bitter cold, which could lead to hypothermia and/or frostbite, noted Ms. Roth.”
Employers who fail to take necessary precautions may be subject to OSHA violations.
North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. understands the many reasons why workplace accidents occur. It is not necessary to prove your employer was at fault in order to receive workers’ compensation benefits. The focus on considering safety measures in cold weather or any weather is to try to avoid the accident from happening. For help with any work injury claim, contact a seasoned North Carolina and Virginia workers’ compensation attorney. You can reach attorney Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to schedule an appointment. You can use complete our New Electronic Case Review. It’s a new way we’re offering workers to contact us remotely, particularly if they are awake after normal business hours.
Posted on Thursday, November 12th, 2020 at 12:10 pm
Different federal agencies and different states use the AMA guidelines (either directly or indirectly) to assess a worker’s permanent partial impairment. In the context of a workers’ compensation case, a permanent partial impairment rating will typically be a measure of any permanent damage or restriction that is objectively measured in a specific body part, such as the upper extremities, lower extremities, hands, or feet. In North Carolina (not in Virginia) this can also include permanent impairment to the spine. These partial impairment ratings are expressed in terms of a percentage of permanent impairment.
The United States Department of Labor has guidelines for evaluating medical evidence necessary to show a “ratable permanent impairment” for certain federal workers. Generally, workers who have a ratable permanent impairment are entitled to additional pay after they have reached the point of maximum medical improvement.
States, such as North Carolina and Virginia, generally use comparable guidelines in determining how much, if any, additional compensation injured or ill workers should receive due to a workplace injury or disease. In Virginia, the guidelines are not specifically mentioned by statute, but are often utilized by doctors and rehabilitation professionals to assign permanent impairment ratings to the injured body parts of claimants. Others use their own guidelines. For example, North Carolina has its own rating guide for impairment.
Before we go further, one important note about impairment ratings generally: If we have an accepted claim or a claimant who is under an Award in Virginia, and the injured worker is injured to the extent that he or she cannot return to job he/she held prior to their injury, and the employer is unable to accommodate the employee’s physical restrictions, then really, except in rare circumstances, the impairment rating is not a very important item to consider.
Why? Because first, if it is an accepted or awarded claim, and one cannot return to his or her pre-injury job, and the employer is not able to accommodate, then the employee will continue to receive TTD for potentially up to 500 weeks. So long as an injured worker is receiving TTD, then the law says he or she cannot simultaneously receive payments for permanent partial impairment (PPI) and TTD. In other words, one cannot ADD to the 500- week maximum with PPI payments.
Those PPI payments would only be available if, and when the injured worker returned to work at any job.
In addition, in the scenario of an accepted claim, we are often looking at a potential settlement of the claim. The value of the indemnity or “weekly TTD checks” portion of the claim in a case where one cannot return to the pre-injury job is usually far higher than any payment that one would be entitled to for PPI.
Accordingly, the only time PPI usually becomes more important is the scenario where the injured worker has returned to work in some capacity. Once that happens, we are going to factor those available payments into any potential settlement. In the above scenario, where the injured worker continues to receive TTD, and we are looking at a potential 500-weeks maximum of payout, we do not care as much about the ratings in any settlement scenario.
North Carolina distinguishes between an evaluation of permanent physical impairment and permanent disability. It references the AMA guidelines as follows:
The Disability Committee of the American Medical Association (AMA) has pointed out that the evaluation of permanent disability is twofold:
“Physical impairment is a purely medical condition. Permanent physical impairment is any anatomical or functional abnormality or loss after maximum medical rehabilitation has been achieved and which abnormality or loss the physician considers stable or non-progressive at the time the evaluation is made.”
In workers’ compensation cases in North Carolina there are four types of disability:
North Carolina’s rating guide for impairment is just meant to be a guide for physicians in their rating exams – since many injuries involve intangible factors such as “pain, weakness, and dexterity.” The doctor’s job is to assign a percentage to the impairment. The doctor should use hie/her independent judgement based on experience, a clinical examination, test results, and other factors to set the percentage. The North Carolina industrial Commission then uses this percentage, among other factors, to determine what award, if any, should be paid to the worker.
That being said, usually, ratings are determined within the context of rigorous testing of the injured worker at a physical therapy facility by a qualified professional known as a functional capacity examination (FCE). The doctor will usually rely on the results of the FCE to determine permanent partial impairment.
The Department of Labor guidelines reference the 5th edition of the AMA impairment guidelines. The 5th edition defines an impairment as “a loss, loss of use or derangement of any body part, organ system or organ function.” In addition, the 5th edition states:
“Impairment percentages or ratings developed by medical specialists are consensus-derived estimates that reflect the severity of the medical condition and the degree to which the impairment decreases an individual’s ability to perform common Activities of Daily Living (ADL), excluding work.” (Emphasis in original).
The AMA guidelines rate various organs and bodily functions by category – such as respiratory, cardiac, nervous system, endocrine, etc.
According to Insurance Journals, the AMA guidelines for the 5th edition (2000) were updated by a 6th edition (2007). Research from McMaster University in Ontario and the Netherlands showed that the 6th edition “resulted in significantly lower impairment ratings than the 5th edition,” according to research from McMaster University in Ontario and the Netherlands. Their findings, which were published in the Journal of Occupational and Environmental Medicine, stated that the difference in the impairment ratings is that the focus on impairment ratings shifted from pain and range of motion – to direct measures of function. “For example, in an earlier guide they may have measured whether a person could lift their arm above their head without discomfort, but now they look at whether the person could put a box on a shelf.”
“The results showed the median whole person impairment rating was seven per cent for 131 claimants assessed with the fifth edition of the AMA guides, and four per cent for 118 claimants assessed with the sixth edition.”
The study made another startling finding- that the state workers’ compensation boards throughout North America are not consistent with which AMA guides they use.
According to Lexis, as of July 1, 2019, the count of States Utilizing various guidelines broke out as follows:
AMA Guides, 6th Edition 14 states
AMA Guides, 5th Edition 10 states
AMA Guides, 4th Edition 6 states
AMA Guides, 3rd Edition Revised, 2 states
State-specific guide used instead 16 states (although 15 states say AMA Guides may be consulted)
Disability is defined as follows:
Impairment is defined as follows:
North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. is a premier workers’ compensation lawyer. He’s helped thousands of injured employees obtain strong recoveries. He works with your doctors and independent doctors to properly assess your disability and your impairment rating. He’ll fight to ensure you are required to work only if you are physically able to work. To speak with an experienced North Carolina and Virginia workers’ compensation attorney, call attorney Joe Miller, Esq., at 888-667-8295. or fill out my online contact form , or utilize our new online case evaluation form.
Posted on Friday, October 30th, 2020 at 8:52 am
Carpal tunnel syndrome is painful and is likely to cause workers to lose time from their job. If your median nerve isn’t working you’ll have a lot of complications such as:
According to the Mayo Clinic, your physician will conduct a series of tests and questions to determine if you have carpal tunnel syndrome. These tests and questions include:
Imaging tests may also eliminate other problems such as diabetes.
It’s best to start treatments of carpal tunnel syndrome as quickly as possible. Early self-help treatments include:
In milder cases, where your condition is less than 10 months old, splinting may help. If, however, your hands feel numb, you should treat with a doctor as soon as possible. As a general rule, you should see a doctor, even if you have a mild case, so he/she can diagnose the condition and recommend initial therapy.
Splinting the wrist helps keep the wrist still while you sleep. Patients use the wrist splint at night though it can help with daytime aches and pains.
Some stretching exercises may help. Some patients seek chiropractic care and/or acupuncture
Some nonsurgical therapy treatments include:
The Mayo Clinic indicates that there are two types of carpal tunnel syndrome surgery:
There are risks to surgery that your surgeon should explain to you before any operation. These risks include:
The healing process, after surgery usually takes a few months. During this time, “the ligament tissues gradually grow back together while allowing more room for the nerve.” Employees, who are entitled workers’ compensation, should receive temporary disability during the healing process. The employer’s insurance carrier should pay for the surgery.
In some cases, your symptoms may not completely disappear after surgery.
Often, employees can show that they developed carpal tunnel syndrome due to their work. Still, that doesn’t mean you’re automatically qualified for workers’ compensation in either North Carolina or Virginia. Generally, injuries must either be due to a workplace accident or an occupational illness or disease.
In Virginia, Carpal Tunnel Syndrome is specifically not recognized as a statutory occupational disease the same way as something like asbestosis; however, it is probably the most commonly claimed “ordinary disease of life” that injured workers claim is due to have occurred due to exposure to specific work conditions.
It is definitely not a given that a claim for carpal tunnel will be found compensable. In Virginia, any “ordinary disease of life” much meet the higher standard of “clear and convincing” evidence. This means that there must be very clear proof that the unique work conditions are such that they have caused the CTS, and also that the CTS is not due to factors outside of work. It must be “characteristic of the employment and was caused by conditions peculiar to such employment.”
Employers will typically argue that your carpal tunnel syndrome is due to other conditions – such as a second job or activities you do at home. They’ll also argue that you had a pre-existing carpal tunnel condition caused by other activities or conditions that pre-dated your work history with the employer.
North Carolina is similar in its proof requirements. CTS would fall under the “catch all” occupational disease claim found at N.C.G.S. 97-53(13) which does generally allow a carpal tunnel syndrome claim to be filed if it is due to a repetitive stress injury – if it can be shown that the CTS is proven “to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.”
If you are able to prove your claim, while you’re out of work due to the CTS, you should be entitled to temporary disability benefits at 2/3rds of your average weekly wage and of course coverage for any and all treatment related to your CTS. If your hand doesn’t completely recover, and you end up with some kind of permanent impairment, you may be entitled to permanent partial disability (PPD) benefits.
North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq has helped thousands of injured workers obtain just recoveries. He understands the unique coverage and treatment issues involved with carpal tunnel syndrome claims. To talk with a seasoned work injury lawyer, call North Carolina and Virginia attorney Joe Miller, Esq., at 888-667-8295. or use my online contact form or our new online case evaluation form to find out if you may have a claim.
Posted on Wednesday, October 28th, 2020 at 8:50 am
Carpal tunnel syndrome is an injury due to stress. It happens when pressure on the median nerve and tendons that travel through the carpal tunnel (a passage in your arm). You feel the injury as you flex your fingers. The carpal tunnel can cause pain, numbness and tingling, even with minor swelling.
According to the Mayo Clinic, symptoms include:
The feeling may extend from your wrist up your arm. The symptoms can appear while you’re driving or just reading a publication. They may cause you to wake from your sleep. Many people try to shake out the feelings. The numbness feeling may last a long time.
Pressure on the median nerve causes carpal tunnel syndrome. The median nerve “provides sensation to the palm side of your thumb and fingers, except the little finger. It also provides nerve signals to move the muscles around the base of your thumb (motor function).”
Carpal tunnel syndrome can be due to anything that irritates or squeezes the median nerve. A fractured wrist can also cause the carpal tunnel to narrow. Rheumatoid arthritis is another cause of carpal tunnel syndrome. Often, there is no one singular cause. A combination of factors may cause he disorder.
Many factors increase the risk of carpal tunnel syndrome though they may not cause the disorder. These risk factors include:
Of particular note, is that workplace conditions are a known risk factor. Examples include:
“Several studies have evaluated whether there is an association between computer use and carpal tunnel syndrome. Some evidence suggests that it is mouse use, and not the use of a keyboard, that may be the problem. However, there has not been enough quality and consistent evidence to support extensive computer use as a risk factor for carpal tunnel syndrome, although it may cause a different form of hand pain.”
Some of the ways to reduce stress on your wrists and hands include:
You should also avoid working where it’s cold. If you can’t control the cold/heat, try using fingerless gloves. They may help.
Some that we’ve mentioned include computer work or keyboard work, assembly line work, and using a cash register. Other risky jobs include:
North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. has helped thousands of injured workers obtain their full work injury benefits. He’ll fight to show your carpal tunnel syndrome is compensable under state workers’ compensation laws. He’ll work to show how much medical care and time off you need.To speak with an experienced work injury attorney, call North Carolina and Virginia lawyer Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to make an appointment or feel free to utilize our new online case evaluation form.
Posted on Wednesday, July 22nd, 2020 at 9:53 am
Workers have the right to file for workers’ compensation if they are an employee, if they are hurt on the job, and if the injuries they suffer stop them from working. Workers may also be entitled to work injury benefits if they suffer an occupational illness due to their job. There is no requirement to prove the employer was at fault. The claims process is normally easier than in a personal injury case. Still, there are many mistakes employees can make that can hurt their case. Just one key mistake can affect your entire claim or your ability to get all the compensation you deserve. (more…)
Posted on Monday, May 18th, 2020 at 8:55 am
The COVID-19 healthcare crisis is causing a lot of changes to the way that workers’ compensation in North Carolina are handled Some of the many changes the North Carolina Industrial Commission is making include the following:
Chief Justice Beasley ordered on April 2, 2020 that all mediations of workers’ compensation cases in North Carolina will be conducted remotely. Alternatively, the mediations will be scheduled for a date on or after the first of June 2020. All parties must consent to a remote mediation – or the mediation will be rescheduled to the later date.
Chief Justice Beasley also announced the following changes to the workers’ compensation process – in order to protect the health and public safety of North Carolina residents:
In the case of hearings without lay witnesses, the parties should obtain the relevant expert medical testimony that is needed to resolve the issues.
The North Carolina Industrial Commission will now accept agreements that are:
The NCIC is requesting that the lawyers (for the employees and employers) who are working remotely either advise their legal assistants when NCIC orders have been sent or provide the Executive Secretary’s Office with the emails of both the lawyer and the legal assistant
The NCIC will consider motions by lawyers who have to reschedule vacations, non-emergency medical procedures, and other plans – for which secure leave was already filed.
There is one important caveat/condition. The employee must sign through DocuSign. The lawyer for the employee cannot “sign via DocuSign on behalf of an employee.”
The NCIC hasn’t agreed to any “automatic, blanket extension of filing deadlines for the following reasons:
A few Q and As provided by the NCIC about telehealth visits include the following:
“Effective immediately and continuing until further notice, the Industrial Commission will liberally grant the following types of motions:
The NCIC is encouraging its staff to work remotely as much as possible. The NCIC is encouraging parties to contact the NCIC by email instead of by phone because many staff employees are working remotely where they can easily access their email and because, with email, employees can respond when they are ready. Also, many voicemail messages to office phones don’t get forwarded to personal phones.
The NCIC provides a list of email addresses for staff members.
North Virginia workers’ compensation attorney Joe Miller Esq. has been fighting for injured workers and workers with occupational illnesses for more than 25 years. He is keeping current with the new requirements for handling cases during the COVID-19 pandemic. Cases are still be being heard. So, if you can’t work due to workplace conditions or a workplace accident, please phone Joe Miller, Esq., at 888-694-1671. or use my online contact form to speak with an experienced work injury lawyer.
Posted on Friday, May 15th, 2020 at 8:42 am
The COVID-19 pandemic is affecting every type of worker. Some work such as healthcare and delivery service work has been deemed essential by the Governor of North Carolina. Other work has been categorized as non-essential. Governor Cooper has issued a new Executive Order essentially placing North Carolina into Phase 1 of Re-opening, while still engaging in social distancing, testing, and possibly contact tracing.
Meanwhile, the pandemic is spreading through the state and the world. It is affecting nursing home residents and the elderly more than any other groups. Nurses, doctors, EMT personnel, ambulance service workers, and other health care professionals are at high risk for contracting the virus because they work with so many patients who already have the disease and because the disease is easily transported. Workers who deliver products to our homes are also at risk every time they touch a doorknob, pick up a package, or come into contact with other people.
I recently covered this issue in a couple of short, informal cell phone videos I did for Virginia Workers’ Compensation benefits, namely, if a healthcare worker gets ill from COVID-19 on the job, does he or she have a valid workers compensation case?
The answer, unfortunately for Virginia Workers, is while technically they may have a case, the real answer is that the level of proof required for an “ordinary disease of life” such as becoming ill from COVID-19 is so high that it will result in all cases being denied by insurance companies. So while a sick healthcare worker may be gasping for air on a ventilator, unable to work and facing thousands in healthcare costs, assuming he survives, the worker’s compensation insurance company will be denying payment for the claim, saying the sick worker has contracted an “ordinary disease of life,” cannot prove it came from work, and has therefore no case.
And of course, this is an outrageous situation, and that is why I did another video urging all citizens to call and email their State Representatives to get legislation passed that will protect our most cherished heroes—our healthcare workers who are battling this terrible virus.
So is the situation any better in North Carolina? Workers in North Carolina are entitled to work injury benefits (partial pay and medical bills among other benefits) if they are injured while doing their job. Workers are also entitled to benefits if they meet the statutory definition of an occupational illness.
Whether a worker who develops COVID-19 can request North Carolina workers’ compensation benefits is currently an open question, but unfortunately, it does Eligibility may depend largely on whether the worker was an “essential” worker and on other factors.
The North Carolina statute provides in North Carolina General Statute Section 97-53 that many specific diseases are considered occupational diseases. A few of these specific examples include anthrax, various types of poisoning (brass, zinc, lead, and manganese to name a few), bursitis due to intermittent pressure in the employment, and other illnesses listed in the statute.
If an injured worker contracts one of the specific diseases listed in the statute, then the injured worker is generally going to be able to obtain work injury benefits when a disease or illness is specifically listed such as lead poisoning. If a disease is listed, then there is a presumption (which can be rebutted) that the worker developed the occupational disease through work.
One possible avenue for recovery for workers’ compensation benefits for any worker who develops COVID-19 would be for the Legislature in Raleigh to consider adding COVID-19 to its list of specific diseases, or simply to create a special presumption that any healthcare worker who becomes ill from COVID-19, has a compensable claim.
But under the current law, COVID-19 is not specifically listed in the statute; however, the statute also has a broad definition that may cover COVID-19:
Item 13. “Any disease, other than hearing loss covered in another subdivision of this section, which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.”
This definition in my opinion is slightly more liberal than Virginia; however, because it would still term COVID-19 an “ordinary disease of life,” the burden would remain on the worker to show not only that he or she was at increased risk of contracting the disease for the type of work performed but that the exposure at work was far higher than that of the general public. This may prove particularly challenging in light of the fact that we are in a pandemic, meaning that almost everyone runs the risk of exposure to the virus.
For COVID-19, coronavirus cases, under the current statutory scheme, the employee would need to focus on showing that the there was a greatly increased risk of contracting the disease for the type of work the employee did – as compared to the risk to the general public. Since everyone is at risk for contracting the disease, the focus will need to be on showing the worker’s job created a significantly increased danger.
The problem is, of course, that just like Virginia, as a practical matter, this places an immediate burden on the employee and most likely guarantees that virtually anyone bringing a COVID-19 Workers Compensation case is going to be denied by the insurance company and have to head to hearing. This is certainly not something that anyone struggling to breathe on a ventilator is going to be able to deal with.
Moreover, you need look no further than the marketing efforts of defense firms in North Carolina to see how difficult this will prove to be for workers who contract COVID-19 illness.
At least one well-known North Carolina Defense Firm has already laid out its legal strategy for defending any COVID-19 Claim, online, stating “In a pandemic, regardless of the employee’s employment, it seems unlikely that an employee will be able to establish, through lay evidence, where COVID-19 was contracted, or that the employee will be able to rule out, through lay evidence, where COVID-19 was not contracted.” This means they will force employees to prove that the disease was not contracted in just about every location except work, essentially an almost impossible task.
One of the ways experienced North Carolina occupational illness lawyers may use to help provide the worker’s job included and increased risk is through the Governor’s Order which identifies some jobs as “essential”. Any work that is essential means workers are also going to likely have more contact with people, packages, and items that may be contagious.
Some of the jobs identified by Governor Roy Cooer as essential, in his March 27, 2020 Executive Order are:
That being said, in my opinion, under the current statutory scheme, the only workers who have a shot at prevailing would be healthcare workers whose jobs put them at extremely high risk insofar as exposure to COVID-19, such as those testing people for COVID-19, those treating positive COVID patients, and possibly workers in nursing care facilities which are known to have very high rates of infection.
Still, the current statutory scheme will likely guarantee that the claim be denied, although the employer will have the option—if they are feeling generous—of paying some parts of the claim on a non-prejudicial basis, meaning they can choose to deny it later.
Is that unfair? Of course it is! How can we possibly treat our heroes this way?
But there is GOOD NEWS!
The North Carolina General Assembly is Considering a Proposed Bill to Fix the very unfair Situation
The good news is that the North Carolina Legislature has followed a number of other states and currently has under consideration House Bill 1057, which would provide a presumption that not only first responders and other healthcare workers, but anyone considered “essential” by the Governor’s Order, due to a pandemic disease would be entitled to workers compensation benefits. The presumption is rebuttable only by clear and convincing evidence.
At this writing, the bill is not yet in its final form, but hopefully, the Legislature in Raleigh will act with speed and pass this very important law. See the current version of House Bill 1057.
Workers who develop an occupational illness are generally entitled to the following work injury benefits:
Just one day and one night in an ICU unit can run tens of thousands of dollars. The amount of the payment for medical costs may be adjusted depending on whether the employee has other health insurance benefits.
North Virginia workers’ compensation lawyer Joe Miller Esq. is keeping current with the changes to state work injury laws due to COVID-19. He is working (often, remotely) to speak with clients and to process work injury claims. He has helped thousands of injured workers and workers with occupational illnesses get the just benefits they deserve. For any questions about COVID-19, please phone Joe Miller, Esq., at 888-694-1671 or fill out my online contact form to speak with an experienced work injury lawyer.
Posted on Thursday, March 26th, 2020 at 11:10 am
Clearly many folks are concerned right now about the effect on their weekly compensation checks of any potential layoff of themselves and their fellow employees at work or company closures due to the severe economic downturn and mandatory closures related to the Coronavirus.
This is a very important question right now and also this particular question regarding layoffs happens to be an evolving and very active area of VA Workers Comp law.
The short answer is if you are currently under an ongoing, finalized Award for benefits, meaning an Award for weekly checks for either Temporary Total or Temporary Partial Disability, then NO, you will not lose your benefits; however, if you are NOT under an Award yet and your position is permanently eliminated or the layoffs are clearly permanent with no chance of re-hiring, then you will likely have a very difficult time of trying to obtain comp check benefits from the date of such layoff forward. You may only be able to claim benefits up until the date of the layoff. It’s not impossible to prove ongoing benefits in a permanent layoff situation, but you will be required to rise to a very high level of proof to show that your inability to obtain a job is due to your disability and not just to your job being eliminated permanently.
That being said, if the layoff is only temporary—as many will likely be in our current situation—then if you are not under an Award and on light duty, you would still be able to claim benefits; however, you would need to engage in active marketing of your residual capacity to work in order to prove your inability to find a job. And of course, you will likely end up at a Workers Comp Commission Hearing to prove you engaged in adequate marketing.
Of course, those held out of work 100% by their doctors due to their work injuries and have the physician’s work notes to prove it would not need to prove marketing.
If this all seems confusing, I encourage you to first see my video on the importance of being under an Open or Ongoing Award for benefits in Virginia. It’s important to understand what an Award accomplishes for you in Virginia.
So why is someone under an ongoing or Open Award in a better position compared to someone who is not in a layoff situation?
It’s because when you’re under an ongoing Award, that Award is a proclamation or Order by the Virginia Workers Compensation Commission that you are entitled to the weekly benefits stated in that Order on an ongoing basis, until proven otherwise by the defense. In other words, you have met your burden and you have won your case. Many times, the Award occurs due to an Award agreement, but the result is the same—once that Award has been entered by the Commission and the 30 day appeal period has passed, the Order is Final and you have won.
When you have an ongoing or Open Award for weekly benefits, it becomes the defense’s burden to prove you’ve been returned to full duty and that you are capable of performing your pre-injury work if they want to get out of paying you those weekly benefits. There are a few other ways for them to stop the Award, such as failure to comply with medical treatment or vocational rehabilitation, but they’re not relevant to our discussion right now.
If the defense cannot prove you are capable of a return to full duty, then you are going to remain under your ongoing Award and they still have to pay you your ongoing, weekly benefits even during the layoff and even if the layoff is permanent.
Now what about folks who are not under an Award yet, but are trying to prove one?
The case law is clear that for folks who are not yet under an Award, the difficulty of proving you are entitled to benefits really depends on whether the layoff is temporary or permanent.
This is because an injured worker who is not yet under an Award has no Order from the Commission regarding anything. Nothing has yet been proven, so the burden of proof remains on the injured worker to show he or she is entitled to benefits.
In a temporary layoff situation, if you are on light duty, assuming your employer does not accept you back at light duty status, so long as you are able to prove sufficient marketing of your residual capacity to work (i.e. looking for work elsewhere within your physical restrictions) during the temporary layoff, you should be able to prove you’re entitled to benefits. Of course, you will likely have to go to Hearing to prove that.
Again, if you are in a temporary layoff, and your authorized treating physician has you out 100% due to your injuries, then since you currently have no residual capacity to work per your doctor, you do not have to market or look for work. You would only need to prove your total incapacity with your doctor’s work notes and office notes.
Unfortunately, for those of you whose positions are eliminated and are fully and permanently laid off along with your coworkers, if you are on light duty and not yet under an Award, you will unfortunately find it much more difficult to be able to claim ongoing weekly workers comp benefits. The case law in such circumstance requires a higher level of proof to show that your economic loss is due to your injury and not the elimination of your job.
The Commissioners and Judges have reasoned in the case law that since you don’t yet have an Award, and your job has been eliminated, the burden is on you to prove economic loss due to your work injuries. And since the burden is on you for proof and since the reason you don’t have a job is because your job was permanently eliminated, then you need to prove your economic loss is actually related to your work injuries and not just the fact that your job does not exist any longer. In such cases, just doing the marketing/looking for light duty work as usual is probably not enough. There needs to be proof that not only can you not find a job, but the reason you cannot find a job is because of your work restrictions as set forth by your treating doctor. If you don’t have such proof, then the Commission will find that the loss is not related to your work injury. They will find that it is related to the fact that your job no longer exists.
Such proof may be through the hiring of an expert such as a vocational rehabilitation expert, and/or through some kind of testimony or other evidence from one or more of the potential employers where you applied that you could not be hired because your work restrictions could not be accommodated.
We think that the decision by the Court of Appeals back in 2016 which raised the standard of proof for permanently laid off employees was wrong and a harsh result, and in fact there were strong dissents by Judges on the case, but unfortunately those Judges were outvoted and that is the law in Virginia.
The only good news is that in many of the Full Commission decisions that have followed this 2016 Court of Appeals Case, the Commission has gone to great lengths to say it does not apply to the situation at hand. Clearly, the Full Commission also feels the Court of Appeals went too far and takes every opportunity to try to limit the harsh effects of that decision.
Also, just to be 100% clear, it is very important to distinguish between an Open or Ongoing Award and a Closed Award. A Closed Award is for some past period of weekly payments that has now ended because you have returned to work. Although such an Award contains a lifetime medical benefit and is also evidence that your claim is compensable (meaning there is no longer a defense that you did not have a legitimate, on-the-job injury) in terms of attempting to get your checks started again because you have been laid off, it’s almost like have no Award at all. In other words, if you’re on light duty, you would have to prove it’s a temporary layoff and you would have to prove marketing just like the folks with no Award at all. And just like those folks, you would not be able to prove any entitlement to ongoing checks if your layoff became permanent.
We hope this article has been helpful.
From all of us here at Joe Miller Law/The Work Injury Center, please stay safe, please follow the CDC COVID-19 Guidelines for prevention, and God Willing we will all get through this safely together.
Attorney Joe Miller has been representing injured workers in Virginia and North Carolina for over 32 years. If you have any questions about a worker’s compensation injury incurred by you or a loved one, please do not hesitate to reach out to us at 888-694-1671 or fill out our online contact form
Please do not wait to contact us, as there are time deadlines for filing your claim. If you fail to meet those deadlines, your right to benefits will be forever lost.