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…)

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:

Mediations conducted before June 1, 2020

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.

Hearing policies through May 31, 2020.

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:

• • Full Commission Hearings. Oral arguments for full commission hearings will be conducted through a conference call. The parties will be given a toll-free number and an access code in order to phone into the conference. A court reporter will still continue to record the court proceeding.
  • Non-medical motion hearings held before a deputy commissioner. Any Deputy Commissioner hearings which would have been heard by May 31, 2020 will be rescheduled except for medical motions (under General Statute 97-25(f) or unless the parties are notified about other conditions

• Medical motions before a deputy commissioner. These hearing are generally required to be heard within 30 days from the motion or appeal filing date. Instead, these hearings won’t be postponed. Instead, they will be hard remotely. The parties may be excused from attending the remote hearing by the Deputy Commissioner if the parties and the Deputy Commissioner agree that:

• Lay witnesses aren’t needed

• The parties stipulate to the facts and the exhibits

In the case of hearings without lay witnesses, the parties should obtain the relevant expert medical testimony that is needed to resolve the issues.

• Executive secretary hearings. These informal telephonic hearings, conducted by the “Executive Secretary’s Office will be by conference call.”

COVID-19 Policy Update Regarding Electronic Signatures

The North Carolina Industrial Commission will now accept agreements that are:

• Signed by one or more parties through DocuSign
• Singed by one or more to the parties through a vendor similar to DocuSign that “provides a graphic image of a signature placed on a document using secure software that verifies the identity of the user.”

Requests by the NCIC to workers who work remotely

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

Secured Leave Policy during the COVID-10 crisis

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.

DocuSign and agreements

To encourage social distancing, the NCIC is allowing employees to sign agreements through DocuSign, a legal industry standard. These agreements include:

• Compromise Settlement Agreements
• Form 26As and other Form agreements,
• Consent Agreements

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.”

COVID-19 Response: Industrial Commission Filing Deadline Policy

The NCIC hasn’t agreed to any “automatic, blanket extension of filing deadlines for the following reasons:

1. Parties can take advantage of the NCIC’s Electronic Document Filing Portal (“EDFP”) to electronically file a variety of legal documents such as forms, briefs, and proposed orders. 
2. “The Industrial Commission continues to allow pro se plaintiffs and pro se non-insured employers to file all documents by facsimile, U.S. Mail, private courier service, or hand delivery”
3. “Any party wishing to obtain an extension of a filing deadline for a reason related to COVID-19, or otherwise for good cause, may file a motion for an extension of time as allowed by applicable rules and statutes.”

COVID-19 Response: Telehealth Coverage and Billing

A few Q and As provided by the NCIC about telehealth visits include the following:

• Are Telehealth Visits Allowed by the Industrial Commission in Workers’ Compensation Cases? Nothing in the NCIC rules or the Workers Compensation Act disallows telehealth services
• Can Evaluation & Management Telehealth Visits be Billed under the Industrial Commission’s Workers’ Compensation Fee Schedule? Yes. The same Evaluation and Management codes should be used that are used for in-person visits “except that “02” should be used as the “Place of Service” code.” “For any services with CPT codes that do not have a specific fee schedule amount, the charges would be paid per agreement between the carrier and medical provider.”
• What if a Carrier or Third-Party Administrator Refuses to Authorize a Telehealth Visit? If there is a dispute, the injured employee may file a medical motion with the NCIC to seek an order authorizing the telehealth visit and authorizing payment for the telehealth visit.

COVID-19 (Coronavirus) Response: Industrial Commission Mediation Policy

“Effective immediately and continuing until further notice, the Industrial Commission will liberally grant the following types of motions:

• Motions for an extension of time to complete a mediation to allow all mediation participants to safely appear in person at the mediation; and
• Motions to allow one or more parties to participate in a mediation via telephone or video conference.”

IC Staff Working Remotely; Email Communication Encouraged

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.

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. 

Occupational Illnesses in North Carolina

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.

Occupational illness presumptions

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. 

Showing that the worker contracted the disease through work

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. 

How the Governor’s Order affects workers’ compensation claims

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:

• Healthcare and public health workers
• Workers in essential infrastructure operations
• Workers in stores that sell medicines and groceries
• Workers in the food, beverage, production, and agriculture sectors
• Human service operators
• Financial and insurance institutions
• Charitable and social service organizations
• Home improvement, supply and hardware stores
• Postal workers, delivery workers, shipping workers, and pick-up service workers
• Professional services
• Supply chain workers
• Military and defense contractors

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. 

If COVID-19 is ultimately covered, what benefits can be paid to a North Carolina worker?

Workers who develop an occupational illness are generally entitled to the following work injury benefits:

• Wage loss. Generally, 2/3rds of their average weekly wages based on the worker’s earnings before they contracted the disease
• Medical costs. All reasonable and necessary medical expenses. In the case of COVID-19 victims, these expenses can include weeks and weeks in an intensive care unit of a hospital. Medical costs can also include medications, emergency services, and other expenses. Additional medical expenses may be due depending on how long it takes a person to recovery and whether there’s any permanent damage to the workers’ body.
• Death benefits. If a worker tragically dies due to the disease, and many people are tragically dying, then the dependents of the worker (usually the spouse and dependent children) should be eligible for the following benefits (if COVID-19 is covered):
  • Up to $10,000 to cover the costs of the burial and funeral
  • Payment of the average weekly wages for at least 500 weeks until the dependent dies or until a minor dependent reaches the age of 18. Some minor dependants may be entitled to fewer than 500 weeks if they reach majority in less time than 500 weeks.

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.

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. 

Virginia and North Carolina Workers Compensation Attorney Joe Miller here explains why with some possible exceptions, it is unlikely that you would be able to pursue a compensable claim based on your contraction of the COVID-19 or Coronavirus at work. The possible exception might be someone whose sole job is to treat patients who are known to be infected with the virus, or test people for infection with the Coronavirus. Even then, it would be challenging.

In addition to the findings previously discussed, the Virginia Joint Legislative Audit and Review Commission also found the following:

• The cost of Virginia workers’ compensation claims. Compared to other states, insurers for Virginia workers paid comparatively high amounts so workers could treat their injuries or disease. The JLARC states that medical fee schedules which govern the amount of payment for medical services have helped somewhat, but “at least some reimbursement rates in Virginia’s medical fee schedules appear to be high compared with other states.”

• Disease presumptions – firefighting and cancer. Disease presumptions are a way of helping workers prove the causal connection between their work and their illness. “A key premise of disease presumptions is that a plausible connection exists between a presumptive disease and the workers’ occupation, but evidence to prove a connection is difficult or impossible to obtain.

In the area of firefighting and various types of cancer, JLARC reviewed a study of available scientific evidence examining the causal connection between firefighting and 10 different cancer presumptions. The study was done by epidemiologists at Johns Hopkins University’s Bloomberg School of Public Health. The study did find some mixed results. Still, it did find enough of a causal connection to “support a plausible connection between firefighting and the cancers currently included as presumptive diseases in the Code of Virginia.”

It also found plausible connections between firefighting and colon cancer, testicular cancer, and brain cancer – three cancer types that Virginia is considering adding to the state law. The causal connection that is the weakest (but still plausible) is between firefighting and colon cancer.

• Unreasonable burden on certain types of cancer claims. The JLARC found, on review of firefighter claims between 2009 and 2018, that they were not able to show their exposure to a specific carcinogen caused their cancer or were not able to meet the “presumptions’ disability requirement.” The two statutory requirements, according to the JLARC are “unreasonably burdensome and possibly counter to legislative intent.”

The reason it is unreasonably burdensome to document carcinogen exposure, according to researchers at John Hopkins University, is that is cost prohibitive and because of the inability of current technology to prove the exposure. “Additionally, requiring a firefighter to identify a single carcinogen that is known to cause his or her type of cancer appears counter to the purpose of the presumption, which is to relieve firefighters of the need to prove that their occupation caused the disease.”

The JLARC raised the following concerns about the disability requirement:
There are times when a “firefighter’s cancer was not presumed to be caused by work simply because the worker did not have a period of wage loss. Whether a firefighter loses wages because of his or her disease does not appear to be relevant to whether his or her employment caused the disease.

The JLARC found that the requirement that firefighters work 12 or more years under the state cancer presumption statute was not clear and “does not align with research on cancer among firefighters.” Researchers at John Hopkins University found cases were exposure for less than 12 years could create an increased caner risk. The 12-year requirement is also longer than that for many other states.

• Heart disease presumption. The JLARC found that employers had a difficult but not impossible task to rebut the presumption that cardiovascular disease should be presumed under certain conditions. Virginia has a tougher rebuttal requirement for heart disease than some other states. Still, the JLARC found that workers’ compensation “is intended to favor injured workers, and presumptions are not supposed to be easy to rebut.” In 23 percent of heart disease cases decided from 2009 to 2019, the employer was able to successfully rebut the cardiovascular presumption – in those cases decided by the Virginia Workers’ Compensation Commission

The risk of heart disease increases the more years a worker does his/her job. There is credible scientific evidence that the risk of heart disease among public safety workers does increase as the years of service increase. Other states have a years of service requirement that public workers must meet in order to benefit from a cardiovascular disease presumption. Virginia dose not have a statutory requirement for years of service. JLARC states that a specific years of service requirement would:

• • Be in line with current epidemiological research
  • Mean that Virginia’s laws are consistent with the way many other states address the issue
  • Help “ensure that ensure that employers and workers’ compensation insurers do not pay for the costs of non-work-related diseases.”

The JLARC doesn’t currently recommend an alternative benefit program for public workers such as firefighters – which is what some states, since 2017, have done to help public safety workers get the wage benefits, medical payments, and rehabilitation expenses they deserve. 

JLARC believes that improvements to the current Virginia workers’ compensation system would be beneficial.  The report includes numerous recommendations for how to make the state workers’ compensation system address its shortcomings. JLARC recommends implementing these recommendation before considering any broader changes.

These recommendations include legislative action, executive action, and implement specific policy options. 

As a firm who represents injured workers, including first responders, we sincerely hope that the legislature in Richmond sees fit to make the recommended changes so that police and firefighters are not prevented from making claims for heart disease, cancer and other occupational diseases set forth in the law.  

Virginia workers’ compensation lawyer Joe Miller Esq. helps workers who suffer an injury due to a workplace accident. He also fights for workers who develop an occupational disease due to their workplace environment. He fights to obtain payments for long-term medical care when needed due to injuries or a disease. He also seeks to classify a worker who qualifies as having a permanent disability. He demands payment for all allowable lost wages (the percentage authorized by statute). To discuss how to prove your claim and how to verify your medical needs and wage rights, please call attorney Joe Miller, at 888-694-1671 or fill out my online contact form to schedule an appointment. 

Here’s a list of many of the worker’s compensation terms used in North Carolina and Virginia work Injury cases. The definitions may vary Depending on the state and the Issues at Hand.

• Accommodation. This is something to be wary of. When an employee has been released to light duty and the employer “accommodates” the employee’s light duty restrictions imposed by his or her doctor, the employee’s radar should be up. Accommodation is often a pathway to the light duty getting fired for cause for some trumped up minor infraction. While one cannot refuse a reasonable accommodation, injured workers returning to “made up” jobs at their workplace should be very careful how they behave when returning to work. 

• Adjuster. The agent for the insurance carrier who reviews your claim and negotiates settlements. Employees should let an experienced workers’ compensation lawyer negotiate their work injury claim with the adjuster. 
• Authorized treating physician. (ATP) The doctor who is the primary healthcare provider for the injured worker and has been authorized by the workers compensation insurance company to treat the injured worker. 
• Carrier. The insurance company that pays and administers the workers’ compensation claim on behalf of the employer for the benefit of the employee.
• Claimant. In Virginia, the employee who was hurt or suffered an occupational illness and is requesting medical and wage benefits. 
• CMS. The Center for Medicare and Medicaid Services. They usually need to be consulted and the Medicare Set Aside must be approved by them if the employee and employer are going to enter into a settlement if the claimant is on Medicare or is likely to be on Medicare soon.
• Compensable. This means that the worker was an employee and that his/her injuries were due to workplace employment. Workers need to show their claim has merit, is compensable, before any medical bills or wage losses will be paid.
• Contested claim. This is when the employer denies liability for some reason such as that the worker is not an employee, the injuries were not due to work, or for some other reason.
• Date of injury. This is the date the workplace accident occurred. Employees generally must notify their employer on the date the workplace accident occurred that they have suffered an injury. Any questions of law are based on the date of injury.
• First report of injury. This is a form that the employee completes and submits to the state workers’ compensation commission notifying the commission that a worker was injured. A first report of injury is not the same as a legal claim. Employees should not assume that their claim will be proceed if an injury report is filed – even if the carrier makes payment. Employees need to file a proper legal claim with the help of an experienced workers’ compensation lawyer

• Functional capacity exam (FCE). A test that examines a worker’s physical abilities to perform certain tasks – to assess the type of work the employee can and can’t do. A separate portion of the test may also assist the authorized treating physician in providing a permanent  impairment rating for any injured body parts such as the extremities. 
• Impairment rating. After a worker reaches the point of maximum medical improvement, he/she should be examined to determine whether he/she has a partial or permanent impairment in particular body parts that are capable of being rated via the FCE and the authorized treating physician’s opinion. In Virginia this typically includes the extremities but excludes the back and neck. In North Carolina, the back and neck are ratable. 
• Indemnity. Refers to the portion of workers comp benefits that constitute the weekly checks paid by the workers compensation carrier to the injured worker while he or she is physically unable to work, or must work at reduced capacity in a lower-paying job due to his or her injuries.  
• Independent Medical Exam (IME). Essentially this is a second opinion usually ordered by the defense, to determine whether the treating physician’s assessment of the employee’s health and ability to return to work are accurate, or if any recommended treatment such as surgery is appropriate. In Virginia, an employee can go to his or her doctor of choice for a second opinion provided he or she pays for it; however, there is no formal procedure available in Virginia to obtain a second opinion or IME.  Virginia. In North Carolina, there is, in fact, such a procedure in place. In North Carolina an IME can be obtained at the workers compensation insurance company’s expense. The IME can be used by the employee to help show that that the employee should be entitled to additional treatment or that he or she is incapable of returning to work. 
• Light duty. Many workers can’t return to their old job because their doctor places physical limitations on what they can do – such as that the worker shouldn’t lift more than 20 pounds during work. Light duty is less strenuous work. The worker may do light duty work as a transition while he/she is healing to their old type of work. Light duty may ultimately be the only type of work an employee can do due to his/her injuries. 
• Marketing Your Residual Capacity to Work. If you are not under a current, ongoing Award in a Virginia Case, and if you have been put on light duty by your treating physician, then you need to do this, which is looking for work after light duty. Also, pretty much any North Carolina injured worker should look for work if he or she has been placed on light duty. If you are unable to find work within your restrictions, then this is one of the methods by which you may prove that you are entitled to ongoing temporary total disability benefits. 
• Misclassification. Often, employers will try to classify a worker as an independent contractor so that the worker won’t be eligible for workers’ compensation benefits. A misclassification occurs when the independent contractor should be classified as an employee and thus is eligible for work injury benefits.
• Maximum medical improvement (MMI). This is the stage when the treating physician determines that additional medical treatment won’t improve the employee’s health. It does not mean medical treatments should end since many workers need health treatments such as physical therapy to ensure their health doesn’t worsen. After an employee reaches MMI, he/she can be assessed for a partial or permanent disability. Workers generally should not consider settling their case until their health has reached the MMI state.
• Medicare Set Aside. (MSA)This is a set of figures used to cover the cost of future medical expenses factoring in the amount that Medicare will pay for the worker’s medical bills due to his/her eligibility for Medicare. If the injured worker currently qualifies for Medicare, it is a necessary part of the settlement to have any such amounts approved by Medicare first. Even if the injured worker is not currently eligible, if there is any anticipation of application to Social Security Disability, then it would be wise for the injured worker to set aside monies in a separately maintained account to cover work-related injury treatment as part of any settlement. 
• Nurse case manager. (NCM) A health professions hired by the employer to, in theory, helps the employee manage and keep his/her appointments. Often, the employer is mainly interested in having the nurse case manager find a reason to encourage the treating physician to return the employee back to full duty, thereby terminating benefits. Some unscrupulous NCM’s will also pull dirty tricks like giving last minute notifications of appointments, or sending letters that will not arrive in time regarding appointments so a case may be made for noncompliance with treatment requirements—another path to termination of benefits. 
• Permanent and total disability.  If found, this will entitle the injured worker not only to the maximum of 500 weeks, but lifetime weekly compensation benefits beyond the 500 weeks due to complete and total loss of any capacity to work. In Virginia and North Carolina, it is defined by a set of very specific injuries in order to be qualified for permanent and total disability. Typically one may not apply for permanent and total disability until the injured worker approaches the end of the 500 week maximum of his or her receipt of benefits. 
• Permanent partial disability or impairment (PPD or PPI). This is the assessment of how severe workers’ injuries are after he/she has reached MMI and what statutory work loss benefits should be paid. Usually expressed as a rating. 
• Temporary Partial Disability. (TPD) An injured worker would be entitled to TPD if he or she has physical restrictions due to the work injury, and is able to return to work at a lower-paying job then the pre-injury job. In such case, the injured worker is entitled to 2/3rds of the difference between the pre-injury and light job wage. 
• Temporary total disability (TTD). This is essentially the period when the worker is unable to work in any capacity and is receiving medical care and weekly checks from the workers compensation insurance company.  While a worker is on temporary total disability, he/she usually receives 2/3rds of his/her lost wages up to a statutory caps/limits of 500 weeks. This type of disability is classified as a temporary total disability (TTD) if the worker can’t do any work; however, in Virginia, an injured worker under an ongoing Award who is on light duty and is not being accommodated by the employer would also be entitled to TTD. Usually the same holds true in North Carolina under an accepted claim; however, a light duty employee should always be marketing his or her residual capacity to some extent in North Carolina, even on an accepted claim. 
• Settlement. Also known as a full and final settlement sometimes referred to as a “clincher” in North Carolina. A resolution of the employee’s overall claim usually occurs only after the worker has reached the MMI stage. Typically, the worker will receive a lump-sum payment to cover future medical bills and any future indemnity benefits that the worker would likely be entitled to if the claim was not settled. Adjustments may be made to the total amount due to reflect that the worker is getting the funds now and should be able to earn interest on the settlement amount.  (Present Value). 

The main thing to remember insofar as settlements in workers compensation are concerned is that all settlements are voluntary on the part of the workers compensation insurance company. Unlike Court cases, where a verdict can be obtained, in most cases, if the workers compensation insurance company does not want to settle, then they do not have to settle. If the carrier is paying what it has been Ordered to pay by the Commission, then that is all it is required to do. A skilled workers compensation lawyer can often help employees get the best settlement for their types of injuries and medical situation, but there are never any guarantees. Any attorney who says he or she can guarantee a settlement is lying. 

North Carolina and Virginia work injury attorney Joe Miller Esq. understands the legal issues, understands how to negotiate with insurance companies, and understands how to review your medical conditions. He’s been a strong advocate for injured employees for more than 30 years. He’ll help you file and pursue your workers’ compensation claim. To schedule an appointment with attorney Joe Miller, call 888-694-1671 or fill out our online contact form

Retail employees generally include people who sell clothing, food, appliances, home goods, cars, and other vehicles. Retail workers include employees who work for department stores, restaurant chains, supermarkets, small boutique stores, stores in shopping malls, and any place where goods are sold. 

Many retail workers are on their feet for a good portion of the day – which can place strains on their back, neck and spine. Some of the tasks that retail workers perform that can cause a direct injury include

• Stocking shelves and moving stock in general. Workers need to be able to lift, carry, and remove goods from the shelves. Often, they need the help of small ladders and other devices. The shelves need to be constantly replenished. The goods also need to be checked for expiration dates so that stale products aren’t sold to customers. 
• Marketing the products. Retail workers are often required to create and put up signs and office displays to promote their products to customers.
• Customer assistance. This can include helping the customer select the right car or product. It can include showing the customer where the products are in the store. It includes explaining and assisting with the self-service parts of the store.
• Checking out products. The cashiers need to constantly pick up and move the goods and check them for their prices. Baggers and clerks need to place the items sold in bags and boxes so the customer can take the products to the car. Some retail workers also help customers take the items they purchased to their car

Additional retail duties can include price checks, opening and closing the store, cleaning up messes, and removing and replacing items that fell from the shelves.

How retail workers may injure themselves

There are many tasks that retail workers perform that can cause injuries that are severe enough that the worker needs to take significant time off from work to treat. Some of the ways retail workers may injure themselves are:

• Slips, trips, and falls. Workers can easily fall if the surfaces are wet, tiles are broken, carpets are torn, merchandise has fallen, the parking lots aren’t properly maintained, or for other reasons. Retail workers are often focused on helping customers and not on constantly examining the floors and surfaces they walk on.
• Lifting heavy objects. Many commercial products come in heavy boxes which have to be moved to the correct aisle and then lifted into place. Stock workers and other retail employees often need to work with carts and other devices to move the products into place. If the objects are especially heavy such as washing machines and dryers, the workers may even need to use a forklift. It’s easy for a worker to wrench his or her back or pull a muscle while lifting and moving the merchandise.
• Machine and tool related injuries. Retail workers who work with power tools, kitchen cutting products, tools to open and remove merchandise, tools to ensure car engines are in working order, hot stoves, and other equipment can and do suffer injuries while using these machines. The injuries normally correspond to the risks associated with the machines.
• Exposure to chemicals. Retail workers who sell gasoline, cleaning products, gardening products, and other products may suffer injuries due to the exposure to the chemicals in the products. The exposure can cause skin rashes and burning of the skin. Workers who breathe in the chemicals may suffer lung and other respiratory diseases.
• Repetitive stress injuries. Many retail workers perform the same mechanical tasks day in and day out. Waitresses carry trays, often on their arms. Cashiers use the same motions to ring up checks every day. Many retail workers in this day and age enter customer information and product information into a computer on a daily basis. Repetitive motion injuries can cause carpal tunnel syndrome, bursitis, and other disorders that require that the employee take time off from work.
• Forklift and pallet jack injuries. Workers often use these devices to move large boxes and machines. The use of these devices can cause serious injuries when they pin or crush the worker or another employee. If the devices fall or fail to operate properly, they can also cause serious injuries.
• Cuts and bruises. Handling any sharp object such as a box cutter can require stitches and other types of medical care.
• Job-related stress. Daily dealing with irate customers, being forced to meet sales quotas, caustic co-workers and other workplace demands can cause psychological harm to an employee requiring the worker to treat with a psychologist or another mental health professional; however, these kinds of effects are from one’s job are not compensable under workers compensation. That being said, if one is suffering from harassment to such a degree that it constitutes a hostile work environment, depending on the facts of your situation, an employment or labor attorney may be able to assist you. 
• Loud noises. Some retail jobs take place in places where machines are used that make a lot of noise or where music and other devices can affect a worker’s hearing; however, gradually incurred hearing loss is not compensable in Virginia. Only traumatic hearing loss from an accident is compensable. 
• Being on one’s feet for a long period of time. Employers should generally give their retail workers sufficient rest breaks so they can get off their feet. Standing for too long can cause back, neck, and spinal pain. It can lead to heart attacks and heart disease. It can cause foot pain which can require time off from work. 

The important thing for retail workers to understand is that there is no requirement to prove fault in a workers’ compensation case. The main requirements are that the retail worker is an employee and that the workplace accident happened during work or due to work. In a retail environment, there is unlikely to be anything that would be compensable that would be classed as an occupational disease. It would likely have to be the result of an injury by accident. 

Once a retail worker proves his/her right to benefits with the help of a skilled workers’ compensation lawyer, the worker can demand:

• Payment of all reasonable and necessary medical expenses
• Payment of lost wages (typically at the rate of 2/3rds of his or her average weekly wage rate) while unable to work for up to 500 weeks;
• Payment of permanent partial impairment loss in a permanently damaged body part once the injured worker reaches maximum medical impairment.

North Carolina and Virginia workers’ compensation Lawyer Joe Miller Esq. has helped thousands of workers get a just recovery. He workers with your doctors to understand your medical condition. He fights the insurance companies when they try to deny your claim or cut off your benefits. To discuss your work injury claim, call attorney Joe Miller at 888-694-1671 or fill out my online contact form

Truck drivers are prone to many different types of injuries due to being on the road for long stretches of time and the heaviness of the semi, rig, or whatever commercial truck they’re driving. Often drivers are asked to help out with loading and unloading trucks. Many drivers are involved in truck driving accidents. According to the Insurance Institute for Highway Safety, 4,136 people died in trucking accidents in 2018. 

The Federal Motor Carrier Safety Administration regulates the hours truck drivers can be on the road because of concerns that tired drivers are likely to get into a truck accident. Drivers who carry any type of cargo must follow the following regulations:

• Drivers can drive a maximum of 11 hours after 10 hours of not driving

• Truck drivers “may not drive beyond the 14th consecutive hour after coming on duty, following 10 consecutive hours off duty. Off-duty time does not extend the 14-hour period.”
• Drivers must take rest breaks of at least 30 minutes if they have driven 8 hours or more since their last off-duty or sleeper berth period.
• Truck drivers cannot drive more than 60 hours during 7 consecutive days and cannot drive more than 70 hours during 8 consecutive days. “A driver may restart a 7/8 consecutive day period after taking 34 or more consecutive hours off duty.”
• “Drivers using the sleeper berth provision must take at least 8 consecutive hours in the sleeper berth, plus a separate 2 consecutive hours either in the sleeper berth, off duty, or any combination of the two.”

Causes of truck driver workplace injuries

Truck drivers need to do more than just drive long distances. Some other truck safety concerns include:

• They should follow the traffic laws for each state that they drive in. Accidents on the highway can occur if the driver or any other driver speeds, drives while distracted, takes a turn too fast, fails to merge properly, runs through a stop sign or red light, or for many other traffic violations. Truck accidents can:
  • Cause a truck to rollover
  • Cause a truck to jackknife
  • Cause a truck to veer off the highway
  • Result in a truck colliding with other vehicles
  • Result in an accident for many other reasons
• Load their cargo securely or work with the companies shipping the goods to load the cargo securely. This can include lifting, pulling, carrying, and moving cargo which can easily cause injuries. Workers also need to exert energy and force to properly tie down their cargo.
• Unload the cargo safely. Just as loading cargo can cause workplace injuries, unloading the cargo can cause all types of muscle pulls, aches, and pains. Workers who load and unload cargo can also fall or can be pinned by equipment such as forklifts while helping out with the loads
• Truck drivers may also be asked to use ropes, chains, and blocks to secure the loads and to place tarps and covers over the loads. During these tasks truck drivers can easily strain and pull muscles, develop cuts and bruises, wrench their backs, and fall.
• Inspections. Trucks need to be inspected before each delivery for any signs of trouble such as brakes that won’t work, windshield wipers that need replacement, tires than need replacement or need to be pumped with air, and many other tasks. These inspections can easily cause a variety of truck-related injuries. Normally, workers need to conduct similar inspections after they’ve delivered their loads.

Trucks with heavy loads or shifting loads can be especially hard to control

Truck drivers are most prone to musculoskeletal disorders of the back, neck, and shoulders. They are prone to falls which can cause broken bones and soft tissue injuries. Some falls can result in spinal cord damage or a traumatic brain injury. Truck drivers who are hurt in a motor vehicle accident can die, suffer permanent disabling injuries, including but not limited to severe burns, as well as other injuries that can take a long time to heal. Truck drivers who work with forklifts, especially the Moffett types that are carried on the back of a flat-bed truck, run the risk of a loss of limb and many other serious injuries.

Workers’ compensation benefits for truck drivers

Truck drivers who are injured on the job are entitled to medical payments for any necessary surgeries, doctor visits, physical and occupational therapy, psychological care if needed, the cost of medications, and the expense of any medical devices.

Injured workers in North Carolina and in Virginia are generally entitled to 2/3rds of their lost wages until they are released to return to work by their doctor. This can happen either before or after an injured worker reaches Maximum Medical Improvement (MMI). Workers who reach MMI who have not returned to work will be evaluated to:

• See if they can return to work with any restrictions – such as doing returning to work but not lifting more than 10 or 20 pounds, or refraining from ladder climbing. This is typically accomplished through a Functional Capacity Examination. (FCE). 
• Determine if they have a permanent partial impairment. If so, the worker is assigned an impairment rating related to the body part or parts that were injured. If the employee returns to work, the rating is used to determine if the employee may be entitled to additional money based on the percentage rating of impairment for those body parts. 

Employee versus Independent contractor

A common issue in truck driving cases is whether the driver was an employee or an independent contractor. Generally, only employees are entitled to workers’ compensation benefits. As a general rule, the test in determining the status of a worker is whether the company or person that hired the worker had control over how and when the driver performs his/her duties. Drivers who only work for one company, are paid a W-2, are required to wear a company uniform, and drive trucks owned by the hiring company or person are usually going to be classified as an employee and not as an independent contractor.

On the other hand, truckers who own their own trucks and haul loads for numerous companies are generally going to be considered to be Independent Contractors. 

Virginia and North Carolina Workers’ Compensation Attorney Joe Miller Esq. works with truck drivers and all types of workers to help them get just recoveries. He’s helped thousands of North Carolina and Virginia workers get the full benefits they deserve. He works with your doctors and independent physicians to determine the severity of your injuries and when and if you can return to work. To schedule an appointment, call lawyer Joe Miller at 888-694-1671 or complete my online contact form

As North Carolina and Virginia get ready for lower temperatures, it helps to consider some of the causes of cold weather injuries. While many conditions are more severe in northern states; southern climates do experience snow, ice, frost, and winter chills. The effects of cold weather are most prominent among anyone who works outdoors – such as construction workers and agricultural workers. Other workers who are in danger of cold weather injuries include:

• Workers who build and maintain roads
• Airport personnel
• Dock workers
• Workers who work in food storage, processing, and packing
• Window cleaners
• Public safety workers such as police, firefighters, and emergency technicians
• Postal workers
• Trash collectors and sanitation workers

The good news for anyone who works in cold weather or is affected by cold weather is that that as long as the accident occurred during work, the employee should be able to file a work injury claim – without the need to prove an employer was at fault for not salting the ice, providing warning signs, or taking other precautions.

Causes of cold weather injuries

Some of the many different types of winter workplace injuries that occur during cold weather are:

• Slips and falls because snow and ice was not cleared from sidewalks, parking lots, and other outdoor sites
• Slips and falls because workers and visitors track melting snow water and dirt into the entranceways of the workplace building
• Vehicle accidents due to cold weather. Ice, especially black ice which isn’t readily visible, can easily cause a driver to lose control of his/her vehicle. Truck drivers who are injured while delivering goods, construction workers who use vehicles at construction sites, and salespeople who are on the road – all can claim workers’ compensation benefits if they are hurt in a car or truck accident while on company time.

Employers should take extra precautions to:

• Ensure their workers are properly dressed for the cold
• Ensure that vehicles are inspected so they don’t break down on the roads
• If necessary, make sure vehicles are equipped with appropriate snow tires
• Ensure that machines and equipment are in working order if they are to be used outdoors or in cold conditions
• Make sure they review weather forecasts and plan accordingly

Hypothermia, Trench foot, and Frostbite

Hypothermia is a major risk for workers who work outside or who work inside where there isn’t a proper amount of insulation or heat. Often, it’s the inside workers who are at most risk for hypothermia because outside workers take steps to prepare for working in the cold starting with making sure they are properly dressed. 

Hypothermia is the falling of the body’s temperature below 95 degrees, 3.6 degrees below the body’s normal temperature of 98.6 degrees. Hypothermia, if not treated promptly, can be threaten a worker’s life. The disorder can cause cardiac failure and breathing difficulties. Survivors may suffer gangrene and frostbite – especially in their fingers and toes.

Some of the symptoms of hypothermia include:

• Shivering
• A pulse that is weak
• Speech that is slurred
• A lack of coordination
• A poor pulse rate
• A lack of energy
• Tiredness and fatigue

Some of the key risk factors for hypothermia in workers include:

• Being in the cold for long stretches of time
• Getting wet
• Inadequate clothing
• Poor heating systems

Wind is an extreme risk factor for hypothermia because it lowers the effective temperature and can remove the warm air at the skin level. Areas that aren’t properly protected are especially vulnerable to losing heat. Contact with ice and other cold surfaces can also increase the risk of hypothermia.

Other risk factors for hypothermia include drinking alcohol, the use of drugs, some medications, the age of the worker, and how tired the worker is. Workers who are exposed to cold should dress in layers, keep dry, and pay special attention to keeping their head, hands, and face warm. Employers should allow for extra break times in cold weather. Employers should also rotate their work force more often so no worker is in the cold for too long.

Trench foot. This condition occurs when the foot is wet. To stop any heat loss, the foot’s blood vessels constrict, which can cause circulation to be shut down. If not treated correctly and in a timely manner, the constrictions can cause tissue to die. Some of the symptoms of trench foot include blisters, redness of the skin, swelling, and numbness.

Frostbite. The disorder occurs when the skin and the tissues underneath the skin begin to freeze. Usually, frostbite occurs in the toes and the fingers – so that the body can keep the vital organs working. Any worker whose skin turns white or gray, whose skin becomes hard, or who develops blisters or numbness should be treated by medical professionals immediately.

Workers who suffer hypothermia, trench foot, frostbite due to direct exposure to the cold or suffer broken bones and other injuries due to workplace accidents have the right to file a work injury claim. The claim should include:

• Payment of all medical bills including doctor visits, hospital stays, and medications
• Compensation, primarily at the 2/3rds rate of their lost wages for the time they can’t work
• If any part of the body requires amputation, the worker may be entitled to statutory benefits for a permanent disability.

North Carolina and Virginia workers’ compensation Lawyer Joe Miller Esq. has been fighting for injured employees for more than a quarter of a century. He’ll fight the efforts of the insurance company to deny or limit your claim. He’ll contest every attempt to force you back to work before you’re ready. His priority is helping you get all the medical benefits and lost wages the state laws permit. To review your rights and to speak with a strong advocate, call attorney Joe Miller at 888-694-1671 or complete my online contact form