Even if an injured worker has returned to work, he or she may qualify for additional weeks of workers’ compensation pay if they lose function of a key body part. The benefits will be adjusted according to the injury impairment rating. The rating is given as a percentage rating by the injured worker’s authorized treating doctor.

There are different classifications of work injury disability in North Carolina. The main four are:

• Temporary total disability. (TTD) Many workers are able to return to work after treatment with the doctors, therapists, and other health providers, but for now, are either held out of work completely by their doctors, or can prove that they are unable to find work within their physical restrictions;  
• Total and permanent disability. Some workers are never able to return work at all on a permanent basis due to their injuries and are entitled to ongoing compensation for life.

• Temporary partial disability. (TPD) In the middle, are the workers who can return to work with restrictions at a lower-paying job. They get 2/3rds of the difference between the lower-paying and pre-injury job
• Extended compensation. A new category passed in 2011, once an injured worker reaches 425 weeks of compensation, if he or she can prove that the employee has sustained a total loss of wage-earning capacity, the employee may receive compensation beyond the 500-week limit; however, this Award can be challenged if the worker if the defendants can prove the worker is no longer disabled.

North Carolina generally pays these workers 2/3rds of their average weekly wage during the time they aren’t working. When workers return to their job with restrictions, they are paid a portion of their average weekly wages which is apportioned based on how much money they are earning at the lower- paying job.

There is one more type of condition that can result in additional wage loss payments (generally 2/3rds of the average weekly wage), even if the injured worker has returned to work. This condition is called a permanent partial impairment. Also called PPI or PPD payments.

The North Carolina Industrial Commission defines this category as follows: “Permanent disability is not a purely medical condition. A patient is ‘permanently disabled’ if ‘under a permanent disability’ when his actual or presumed ability to engage in gainful activity is reduced or absent because of ‘impairment’ and no fundamental or marked change in the future can be expected.”

Essentially, a doctor reviews the various parts of the worker’s body to see if there are any parts (such as the motion of an ankle) that the worker can’t use. The doctor then determines what percentage of that bodily function has been damaged and assigns a percentage (called an impairment rating) to the damage part of the body.

For example, if worker’s foot motion is limited due to the workplace injury, the doctor will assign the following percentages:

Limitation of motion of ankle

• Motion between 90 degrees and 120 degrees = 10%
• Motion between 100 degrees and 115 degrees = 25%
• Motion between 105 degrees and 110 degrees = 50%

The impairment rating evaluation by the doctor is not made until the employee has reached what is called – Maximum Medical Improvement (MMI). Workers do have the right to treat with all physicians and therapists to try to get healthy enough to return to work. There comes a time, though, when additional medical treatment won’t improve the worker’s condition. While the worker may still be entitled to medical benefits if the treatments prevent his/her condition from worsening, the worker’s right to additional wage loss benefits is re-evaluated. The re-evaluation requires a physical examination by a physician who typically refers the injured worker for an extensive workup with a physical therapist facility.

As mentioned, the physician reviews which body part or medically related part is not functioning. The physician than assigns a rating. Generally, today, physicians no longer perform the impairment rating. Rather, specialized physical therapists perform detailed testing on the injured body parts during an extensive test called a Functional Capacity Exam, or FCE.  These physical therapists do the impairment rating use guidelines established by the American Medical Association.  After the testing is performed, the results will be sent to the doctor and the doctor will decide if he or she is willing to sign off on the testing results. Most of the time, they do.

That being said, FCE’s and the AMA guidelines are just that – guidelines. The doctor can assign the impairment rating on his/her own – based on “the examining doctor’s independent opinion based on his own knowledge, experience and clinical examination.”

Usually, the employer’s insurance company will choose the FCE facility that does the initial impairment rating/FCE Testing. The employee, in North Carolina, does have the right to get a second opinion on the rating at an doctor of his or her choosing– paid for by the employer, not the employee.

The amount of pay due a worker with an impairment is based on the following three factors:

• The number of weeks the state has preset as a maximum for that specific type of injury. These numbers are set forth in Section 97-31 of the North Carolina Workers’ Compensation Act.
• That number is multiplied by the impairment rating percentage
• The resulting number is then multiplied by the workers average weekly wage figure (adjusted by 2/3rds)

In the reduced range of motion of the ankle example:

• Workers who lose the entire use of their ankle/foot are entitled to work loss benefits for up to 144 weeks.
• If a worker’s impairment rating is 25%, then the number of weeks is cut to 25% of 144 weeks = 36 weeks.
• The worker then receives 2/3rds of his/her average weekly wage for 36 weeks. So– if the average weekly wage were $1000.00, then 2/3rds of that figure would be $666.67. That is the compensation rate of $666.67 x 36 weeks, which gives us a payment to the injured worker of $24,000.00 for his or her permanent partial impairment to that body part.

Note that these payments ARE NOT in addition to the maximum of 500 weeks of benefits and one cannot receive these payments for. Unless the worker has been determined to be totally disabled per the rules or entitled to extended compensation, 500 weeks is the limit.

The permanent partial impairment benefit therefore really only becomes important where the injured worker has returned to work at the same pay as pre-injury. Then, with the help of an experienced North Carolina workers’ compensation lawyer, the worker may be entitled to a lump sum payment instead of having to wait the 24 weeks to get his/her physical impairment benefit.

Section 97-31 covers the loss of hearing or the loss of vision (one eye or both) in addition to the loss of use or the amputation of any limbs, hands, feet, finger or toes. Additional payments can also be made for disfigurement or scarring. The loss of use of important bodily organs is also covered.

Workers need to be careful. They should review their disability payment rights and overall workers’ compensation rights with an experienced lawyer.   Once the worker accepts a permanent partial disability, they can continue to receive medical benefits – provided the medical benefits are helping the worker. This could further form the basis of a potential settlement with the insurance company—even if the injured worker has returned to work.

Joe Miller Esq., understands when workers should claim the impairment disability benefits. We work to verify the injury and the impairment rating. We recommend settlement when it is in the worker’s best interest. We’ve been fighting for injured workers for over 31 years. For help with all phases of your workers’ compensation claim, call attorney Joe Miller at 1-(888) 667-8295 or complete my contact form to schedule an appointment.

Families of anyone killed due to a workplace scaffolding accident are entitled to death benefits. Survivors of scaffolding falls are entitled to full medical care and wage loss benefits, otherwise known as temporary total disability checks.

Scaffolding is a necessary requirement at many types of construction sites. Scaffolding is generally temporary. Stable scaffolding helps workers rise above the ground to do their job. Unstable scaffolding can easily cause death. Falls from scaffolding can also cause many types of injuries that leave the worker permanently disabled – such as spinal cord injuries which leave a worker partially or completely paralyzed. In the best of cases, workers with spinal cord injuries often live with chronic pain.

If a worker falls on his/her head, the worker can suffer a traumatic brain injury which affects the workers physical, emotional, and cognitive abilities. Workers with a severe brain injury often never return to work. Even workers with mild traumatic brain injury need to treat with neurosurgeons, neurologists, their family doctors, speech pathologists, physical therapists, psychologists and many other types of doctors.

Falls from a scaffold can cause broken arms which usually have to be set and placed in a cast. It takes months before broken bones heal. Other types of injuries include internal organ damage, muscle and ligament damages, severe cuts and lacerations.

OSHA scaffolding statistics

According to the Occupational Safety Health Administration (OSHA) nearly 2/3rds of workers who work in the construction industry work on scaffolding. That percentage translates to about 2.3 million workers. According to the Bureau of Labor, nearly 60 people tragically die from scaffolding falls each year. Nearly 4,500 are injured due to scaffolding each year. One Bureau of Statistics study shows that 72% of scaffolding accidents are due either the “planking or support giving way, or to the employee slipping or being struck by a falling object.”

Types of scaffolding

The two basic types of scaffolds, according to OSHA, are:

• Suspended scaffolds. Here, at least one platform is suspended by ropes or other types of overhead support that is not rigid.
• Supported scaffolds. Here, at least one platform is supported by rigid supports such as poles, frames, legs, and outrigger.

Other types of scaffolding that are usually classified as “supported scaffold” are scissor lifts and aerial lifts. Other types of scaffolding, according to OSHA,  include “catenary scaffolds, step and trestle ladder scaffolds, and multi-level suspended scaffold.”

Types of workers who work on scaffolds

There are three types of people who work on scaffolding. These are:

• The workers who assemble and disassemble the scaffolding. These workers should be trained by someone who can identify predictable hazards and who has the authority to take steps to correct these hazards.
• Scaffolds should be designed by people with proper degrees, such as engineering degrees, and professional experience. Minimum scaffolding design requirements include understanding:
  • The type of scaffolding necessary for a job
  • The maximum load level
  • How to assure a good foundation
  • How to avoid electrical hazards
  • Users of the scaffolding should be trained on the safety do’s and don’ts.

Employers should review OSHA guidelines or contact OSHA directly before allowing any worker to use the scaffolding.

Common safety tips for workers who use scaffolding

Workers should consult with any manufacturing manuals on proper setup and use before beginning any scaffolding work. Some of the many other practical tips for scaffolding work include:

• Workers should avoid multitasking. When working on scaffolding, it’s best to work on one task at a time.
• Workers should walk carefully, testing the stability of the scaffolding every step of the way.
• Any loose objects or tools not needed for the job should be removed before the scaffolding work starts
• The entire length of the scaffolding should be inspected
• A key consideration is the weather. Construction companies and contractors should avoid having their workers work on scaffolding if the weather is rainy, it’s snowing, or if it’s too hot. Wind is an especially dangerous problem. Heavy winds are an extremely dangerous. Generally, the manufacturer and OSHA have strict guidelines that require that workers not be on scaffolding when the wind reaches a high level.
• Fall protection devices should be set up around the scaffolding.  Fall protection includes wearing helmets and setting up padding or other materials to help cushion any fall. Workers should wear harnesses.
• Proper storage of scaffolding as it’s being torn down or constructed is also important. Heavy scaffolding that is stored incorrectly can fall on workers and cause serious injury.

Workers compensation benefits for workers injured or killed due to scaffolding accidents

There are different types of benefits available depending on the severity of the injuries.

In death cases, the employer’s insurance company should pay up to $10,000 for the funeral and burial expenses. The dependent family members (generally the spouse and minor children) can claim two-thirds (2/3rds) of the worker’s average weekly wages for a maximum of 500 weeks. In a case of North Carolina death benefits,  minor children may be entitled for more than 500 weeks – up to the time they turn 18 years of age. Also in North Carolina, if the widow or widower of the deceased is disabled, she/he is entitled to benefits for the rest of their life or until they remarry.

When workers survive the fall, they are entitled to have all their medical expenses paid that are necessary to their recovery – for the rest of their lives.

Employees are also generally entitled to 2/3rds of their average weekly wages up until the time they return to work or up to 500 weeks. Workers with a total and permanent disability receive the 2/3rds average weekly wage for the rest of their lives.  If the worker has a permanent partial impairment in relation to a compensable, ratable body part, then an additional analysis is made to determine the length of the 2/3rds average weekly wage benefits.

Additional adjustments and conditions may apply depending on whether your claim is in North Carolina or in Virginia.

At the Virginia Law office and North Carolina office of attorney Joe Miller Esq., we’ve helped thousands of workers including numerous construction workers get the full workers’ compensation benefits they deserve. There is no need to prove fault in North Carolina or Virginia workers’ compensation cases. To speak with an attorney experienced at fighting the insurance companies for employers, call lawyer Joe Miller at 1-(888) 667-8295 or complete my contact form to make an appointment.

Sometimes, we like to look at the broad trends in the workers’ compensation arena. These trends can help anticipate new changes to the North Carolina and Virginia worker’s compensation laws. They can help us understand what limits and expansions of benefits might apply – particularly for medical and vocational benefits. Trends help understand why workers get injured, what can be done to reduce the risk of injury, and what medical benefits may help the worker. Trends can also address the administrative end so that claims are filed faster and decisions are made on a quicker basis.

According to Managed OutSource Solutions Medical Record Review, these are some of the new trends and concerns for 2019:

• Many states have adopted Medicaid Expansion. Medicaid expansion may help low-wage workers get medical treatment when workers’ compensation is untimely or when an accident isn’t covered by state workers’ compensation insurance.

• As prescription drug costs continue to increase, new strategies are being developed to address the high cost of these drugs.
• With each new election cycle, state administrations may change power. There may be changes in Governorships, state House seats, and state Senator seats. These officials help decide who the next workers’ compensation Commissioners will be. We saw this not long ago in North Carolina, which has turned decidedly Republican. As a result, the workers compensation system in North Carolina as well as the personal injury laws underwent a massive change toward less rights for injured workers in 2011. And in 2019, the Industrial Commission, as a result of republican appointments, has become far more conservative and company-oriented than in previous years.  But there are sometimes benefits to change. Many states, including Virginia, now have statutes to help first responders (police, firefighters, and emergency medical technicians) get their workers’ compensation benefits faster and to cover injuries such as post-traumatic stress disorder and heart disease. Some states are making payments to the spouses of first responders a priority in the case of the tragic death of a first responder.
• A possible new trend is to focus more on the emotional and psychological scars of any workplace injury. New treatment plans may be compensable. Doctors may be encouraged to help workers get evaluations and treatments for this side of their pain. Workers may be more encouraged to seek treatment with psychologists and mental health professionals.
• There will be more reviews of the American Medical Association (AMA) impairment guidelines. Doctors use these AMA guidelines to determine a worker’s level of physical impairment in a specific body part. The relationship between physical impairment and loss of earning capacity due to that impairment might become part of the analysis of an employee’s work injury claim and his/her permanent partial impairment rating, especially if there is a permanent and total disability.
• Another trend will focus on such issues as safe housing, transportation access and other socioeconomic factors. For example, the review states that “Many insurers are already addressing these concerns by providing meal replacement delivery services after surgery and also caregiver services for food preparation and companionship.”
• The use of telemedicine as a way of improving the patient’s health and providing access to more physician service will be explored. Telemedicine may be especially useful for workers who can’t get a ride to see their physicians. Telemedicine also gives employees a chance to speak with specialists who aren’t local to where the worker lives.
• As claims adjusters are retiring, new claims adjusters will need be trained
• Employers are now offering more leave of absence programs and more enticements for workers as the economy begins to rebound. Employers, according to the Review, claim that leave of absence programs are more than just an enticement. They help companies keep employees.
• Newer workers are more likely to be injured because they don’t have the training and experience to handle complex tools, machines, and business requirements.

Insurance industry trends

Heffernan Insurance Brokers provides the following trend review for California. Some of their trends should be taken with a grain of salt as insurance companies favor the employers who hire them. Insurance companies are not the worker’s friend when there are disputes.

Many of these trends may become trends for North Carolina and Virginia:

• “Evidence based-medicine” is helping workers get improved treatments, better medications, and better access to doctors
• Some companies, such as Starbucks, are using self-reporting system that let employees self-report when they first have an accident rather than going through the company manager. The process involves more technology including a workers’ compensation call center, direct-deposit of workers’ pay, and other benefits.
• Employers are recognizing they can help their employees through early intervention. Musculoskeletal ailments, according to the Bureau of Labor Statistics account for nearly 13% of all worker injury and illness claims. These disorders include back injuries, muscle strains, tendinitis, and carpal tunnel syndrome. Early medical care can help the worker get the care he/she needs and return to work sooner.
• Like the Managed Outsource Solution study, Heffernan believes that telemedicine will be a major workers’ health trend. In addition to providing physical care, telemedicine is being used to provide psychological care. Workers with mental health problems find that speaking with a counselor or doctor directly through the Internet is more comfortable than driving to an office, seeing other patients, and having to work with office personnel. Telemedicine is available for desktops and smartphones.
• Onsite triage programs. One California company uses an onsite triage program to make a quick diagnosis of a worker’s injuries and then arranges for a ride-hailing service to get the worker to the hospital as quickly as possible.
• Robotics. Robotics are helping workers’ compensation insurance companies and doctors reduce costs while providing physical therapy, clerical help, and other services to the worker

Workers’ compensation lawyer Joe Miller Esq. has been fighting for injured workers for more than 30 years. We’ve helped thousands of injured workers get the wage loss benefits and medical compensation they deserve. We work to keep abreast of industry trends so we can better understand how workplace accidents happen and what medical options are possible. At the core, we are strong advocates for anyone who is injured at work for any reason. To speak with a strong experienced advocate, please  call attorney Joe Miller at 1-(888) 667-8295 or fill out my contact form to make an appointment. Initial consultations are free.

New technology is helping workers avoid work-related injuries in many ways. Companies should always be on the lookout for ways to improve worker safety. They should understand and follow the latest guidelines and regulations from the Occupational Safety and Health Administration (OSHA). They should keep current with latest safety standards.

Businesses should know that providing workers with the best tools possible, the best equipment possible, and the best education possible can help reduce how often work injuries occur. The best way to avoid a work injury claim is to avoid the accident in the first place. When accidents at work do happen, workers should speak with experienced workers’ compensation lawyers to get the best advice possible.

The positives

Most new technology has some computer component and some data component. The wearable technology gathers the data by reading relevant responses from the worker who wears the technology. This new type of technology is often good at measuring things such as fatigue, work-related stress, ergonomic issues, proximity to danger, and other factors.

The overall goal of the technology is two-fold. The first is to improve the safety for the individual worker. The second is to improve the safety of the whole workplace organization.

According to Businessinsurance.com, these are some example of the desired benefits of wearable technology:

• “Caterpillar Inc. demonstrated a solution it created to reduce accidents involving collisions between heavy machinery and construction personnel. Using a small beacon that fits inside a hardhat and a receiver mounted in the cab of a vehicle or machine, the solution can detect when a worker is dangerously close to the equipment and alert the driver with an alarm.”
• Two analysts explained how new technology could be used in construction sites, one of the leading industry sectors for workplace accident claims. The new technology would give supervisors the ability to warn workers, through visual and audible alarms to the device they’re wearing – to stay away from certain unsafe areas. The technology was “a worker positioning system using wireless beacons placed around the room and safety vests outfitted with transmitters that allowed software to track their movements throughout the aisles and among audience members in real time.”
• The analysts touted other wearable devices that could alert supervisors to accidents. Quicker response times could prevent harm to other workers and help the injured worker get more timely help. Workers could be notified when an evacuation of a dangerous site was necessary.

Wearable technology benefits typically, according to the BusinessInsruance.com article, the following three goals:

• Collect data about the worker on certain activities such as bending and then comparing it to a benchmark or threshold. The hard part is determining the benchmarks and thresholds.
• Change the worker’s individual behavior. Much of the analysis of this type of benefit has shown that it doesn’t help workers that much. In fact, in one study at the University of Pittsburgh, PA, an experiment was done to determine if wearable devices that monitored diet and physical activity helped or hurt with weight loss. The study actually found that the people who didn’t wear the devices lost more weight than those with the devices. The analysts in the article concluded that behavior is affected more by “organizational culture and systems that try to reinforce desired behaviors and discourage deviations.
• Make changes to organizational behavior, “such as changing workflows or processes to make work safer or more efficient.”

The negatives

There are concerns with wearable technology. Most wearable technology focuses on collecting data about a worker’s performance. Some of the concerns raised by those who oppose these technologies include:

• A lack of privacy. The collection of large amounts of data can affect the psyche and well-being of the workers. The information gathered may be used against the worker in various ways such as in the evaluation of the worker’s job performance. The worker’s privacy is impacted.
• An improper focus. Focusing on the data often means missing many other parts of job performance. Doing a job well depends on experience, ambition, creativity, imagination, an ability to be a team player, and many other factors. Focusing on just physical and emotional responses can miss some of these crucial factors. Often, there are much better, more efficient, and more creative ways to improve worker safety and worker job performance.
• Digital breaches. Some transfer of information might violate various laws such as the Health Insurance Portability and Accountability Act (HIPAA) which regulates access to medical health records.
• A waste of time. All of the data collection isn’t worth the time to collect it if there’s no ability in the technology to assess and evaluate the data.

Wearable technologies should focus on things that can’t normally be evaluated by the human eye or human experience. How much bending a worker is doing can usually be assessed by just looking at the worker. Technology can be useful, for example, in determining (through a glove with sensors) how much “force a worker uses” while gripping.

General guidelines

Education matters. Workers should be told more than just how to use the technology. They should understand how the technology is being used to make for a safer and better work environment.

Employers tend to like wearable devices because the devices may help reduce their premiums while also helping to avoid workplace accidents. Employees may like them if they really help keep them safer.

At the Virginia Law office and North Carolina office of lawyer Joe Miller Esq., we’ve helped thousands of injured workers get justice. We fight to get employees all the benefits they deserve including payment of all their medical bills and their lost wages. We understand that holding employers accountable for workplace injuries is one way to force employers to focus more on workplace safety. For help with your Virginia or North Carolina workers’ compensation claim, call attorney Joe Miller at 1-(888) 667-8295 or complete my contact form to schedule a free appointment. Initial consultations are free.

Workers can file for workers’ compensation in both Virginia and North Carolina if they are an employee. They cannot file for workers compensation injury benefits if they are an independent contractor. The main factor in determining whether a worker is an employee or an independent contractor is how much control the employer has over the worker’s performance. More control means an employee status. Less control means an independent contractor status.

Independent contractors, if an accident occurs, can generally only file a personal injury complaint. Unlike workers comp claims, in a personal injury complaint, the plaintiff must prove that the party at fault was careless or negligent. In workers’ compensation cases, the worker does not have to prove any type of fault. The employee is entitled to workers’ compensation if the accident was work-related.

The difference between an employee status and an independent contractor status is often a fine line. Employers often try to assert a worker was an independent contractor so they don’t have to pay the worker his/her wages and medical bills. Fortunately, for workers, the employee does not have the final say on the work-relationship status. The workers’ compensation Commissioners decide the status – and thus the eligibility to file a claim.

Many times, it is easy to determine whether the worker is an employee or independent contractor. If a retail store hires a full-time employee who also gets vacation pay, health insurance, and retirement benefits – and the employee reports to the same store and the same office manager and has set hours – then the worker is most likely an employee. If the retail store hires someone to come into the store and fix a broken tile in one hour – and that’s all the worker does – that suggests an independent contractor status.

The key factors in deciding the work relationship

Again, as noted above, the main factor in determining whether a worker is an employee or an independent contractor is how much control the employer has over the worker’s performance. More control means an employee status. Less control means an independent contractor status. The Internal Revenue Service uses the following key factors to decide the work-relationship question. Workers’ compensation Commissioners look to a very similar set of factors to decide whether the worker is an employee or an independent contractor.

• Behavior. Behavior refers to the way the employer guides and manages the worker’s performance.
  • Employee behavior. Workers who do their job under the direction of a manager or supervisor and according to a handbook of company rules during set hours are likely to be considered employees. Workers who wear company uniforms, use company tools and company equipment, and who work exclusively at the company site are generally labeled as employees.
  • Independent contractor behavior. Independent contractors generally inform the employer how they are going to do their job. Often the employer hires the independent contractor because he/she has some unique and special expertise. Independent contractors usually use their own equipment. They do their work with minimal guidance from the employer. The employer will have a set of requirements but the work is done using the independent contractor’s methods. Independent contractors are more likely to decide which tasks get done in which order and have no set hours. They come and go from the worksite as they please.
• Financial. Financial considerations focus on how the worker is paid. It should be noted that these factors are not decisive.
  • Employee finances. Employees are more likely to be paid on a regular basis – such as by hour, by week, biweekly, or bimonthly. They are usually paid with a W-2 form. Pay raises are usually made after a performance review and after a set time has expired – usually a year. Employees are usually reimbursed for company expenses such as the purchase of tools or for paying for computer charges.
  • Independent contractors. These workers are more likely to paid in-full when the job is complete or in installments. Installments are often, ½ when the job is ½ done and the other ½ on full on completion. Independent contractors are usually paid with a 1099 and not a W-2. Independent contractors usually buy their own supplies and tools. They are not reimbursed by the company. Instead, the independent contractor adjusts the initial offer to reflect his/her expenses. Independent contractors generally don’t undergo a performance review. If the employer is satisfied with the job the independent contractor did, then the employer will likely hire the independent contractor again – if the need arises. If the employer wasn’t happy with the job performance, the employer will normally hire a different contractor or vendor.
  • The reason the 1099 form is generally not decisive is that many employers think they can get around the workers compensation laws or not have to pay payroll taxes by simply deciding to call all their employees independent contractors and pay them via a 1099. And then when you examine the actual relationship, you find out that in every other respect, the workers are, in fact, treated as employees and not as independent contractors. So just because someone is paid via 1099 is not determinative of whether or not that person is an employee or independent contractor.
• The Work relationship. This factor looks at standard long-term benefits
  • Employee work-relationship. Employees are usually offered what other employees are offered based on their skill level and time of service. Workers who are given a pension, matching IRA benefits, vacation pay, sick leave, health insurance, and other yearly or long-term benefits are usually considered to be employees. Employees generally don’t advertise for other work. They generally don’t work for other employers.
  • Independent contractors. These workers generally get little or no benefits. They are self-employed and must pay for their own health insurance, take vacation on their time, and set up their own pension and retirement plans. Independent contractors usually need to establish working relationships with many different employers. They usually have an expense account for advertising and marketing – so they can get new work.

The employee versus independent contractor question can often arise when workers are seasonal or temporary workers. Many times, these workers are employees because they work solely at the control and direction of the employer.

If an employer suggests that a worker is an independent contractor, that worker should speak with an experienced workers’ compensation lawyer. The difference between the two types of work relationships can mean the difference between getting workers’ compensation benefits and being denied benefits.

Unfortunately, we come across this issue quite a bit, and we have prevailed in cases where the employer attempts to save money by mischaracterizing the employment relationship to get out of paying payroll taxes, insurance, workers compensation, and other benefits.

Please also see our previous article on Independent Contractors vs. Employees for additional information.

At the North Carolina and Virginia Law office of Joe Miller Esq., we’ve been fighting for injured workers for more than 30 years. We aggressively fight to have workers evaluated as employees instead of independent contractors. We understand and defend against the common arguments that employers try to make to deny you coverage by saying you don’t really work for us an employee. To speak with an experienced workers’ compensation lawyer, call 1-(888) 667-8295 or complete my contact form to schedule a free appointment.

Most workers who are hurt on the job make arrangements to go their nearest emergency room – or someone makes the arrangements for them. The ER facility takes your history and may conduct some initial diagnostic tests such as taking an X-Ray. They then make an initial diagnosis. In serious cases, they’ll then advise you whether they think you should be admitted – or not. If you are admitted, then your local hospital generally performs whatever procedures are necessary.

After the visit to the ER, or if you never went to the ER, the next normal step is to see the physicians who can help you. These doctors include family doctors, orthopedists, pain management doctors, neurologists, psychiatrists, psychologists, cardiologists, and many other types of doctors. You may also need to treat with physical therapists, vocational therapists, and other health care providers. Some workers also find that working with a chiropractor can help.

Unfortunately, in a worker’s compensation case, you typically don’t get to make the initial choice as to which health providers you see. You can’t choose your own doctors and therapists. Instead, in Virginia, unless you have a catastrophic injury that requires immediate surgery—in which case whatever surgeon is on call at the hospital typically becomes your treating physician—the workers comp insurance company will give you a list of 3 of their preferred doctors for each type of doctor or health provider you want to see. This is known as a “panel” of doctors. For example, the employer may give you several pain management doctors and give you the right to choose one of the several doctors listed.

Employees should understand that most, if not all, of the doctors on the list were chosen by the employer for a reason. The employer wants doctors who will get you back to work as soon as possible. While company doctors are duty-bound to help employees, company doctors tend to certify patients as ready to return to work (or to work with restrictions) much more readily than non-company doctors. These doctors will be looking to see if you have any pre-existing injuries that might disqualify you from work injury benefits. They will be aware if you state that the you’re not really hurting that much. They’re less likely to recommend long-term or expensive treatments than everyday doctors.

That being said, on most of these panels, it is our experience that there is at least one doctor who is “less bad” or even helpful, as compared with the other two on the panel.

In North Carolina, there is no such ability to choose even from a panel. The insurance company gets to choose which doctor the employee sees. That being said, as will be further explained, North Carolina has a mechanism in place to request either a change in treating doctors or an Independent Medical Examination to be paid for by the defense. Virginia has no such provision.

When it comes to the initial visit to doctor, therapists, and others – particularly in North Carolina—there isn’t much the employee can do.

How to make the switch to a doctor you prefer

Most workers feel more comfortable working with a doctor of their own choosing. The lines of communication are usually better. Workers understand that the doctors they choose will be looking out only for their interests and not the interests of the company or organization that hired you.

There are several ways that a switch can be made

1. You have the right, under North Carolina’s workers’ compensation laws, to get a second opinion. Injured employees can make a written request to have a doctor in the same specialty or area of care examine you – at the expense of the employer. The request is first made to the employer. If the employer denies the request, you can appeal to the state industrial commission. There are a few things to keep in mind if you get a second opinion through the employer. The original treating doctors can review the report and contest the findings. The employer and the employer’s insurance company also have the right to review the second doctor’s report.
2. You can, normally with the help of an experienced North Carolina work injury lawyer, request permission to switch doctors or to switch health care providers. If the doctor who gives you a second opinion thinks that you need treatment or care that the first original doctor is not providing, then you can make a formal request to switch to the new doctor. The North Carolina Industrial Commission will have to approve the switch. An experienced North Carolina lawyer will explain what situations will likely result in an approval of the switch. He’ll fight to show the switch is necessary. Generally, the switch has a greater chance of success if some or all of the following factors apply:
   1. Sufficient time has elapsed to show the treatments from the original doctor aren’t working
   2. You can show some inherent bias against you from the first doctor
   3. The original doctor isn’t using reasonably available treatments
   4. Other factors depending on your health condition

There are some situations where the employer will be required to pay for a doctor who wasn’t pre-approved or for a hospital that wasn’t pre-approved. The main situation/exception is in response to an emergency. Emergencies include the initial injury. They can also include an emergency that appears during your treatment phases – such as an allergic reaction to a medication that requires immediate attention.

How an experienced workers’ compensation can help increase the likelihood of seeing a different doctor

Insurance carriers and defense lawyers will normally fight any request to switch doctors or health care providers. An experienced lawyer will help you in several ways. A skilled North Carolina workers’ compensation lawyer normally works with many different work injury doctors. He’ll help you make an appointment with a doctor who has trained for your type of injury. A good work injury attorney will understand what objections the insurance company will likely make and what objections or responses the original treating doctor will make.

The law on second opinions and switching health providers can be found at N.C.G.S. §97-25. Medical treatment and supplies. Some key considerations in the law, in addition to the above summary, are:

• The employer must respond to your request for a second opinion within 14 days of your written request.
• “If in an emergency on account of the employer’s failure to provide medical compensation, a physician other than provided by the employer is called to treat the injured employee, the reasonable cost of such service shall be paid by the employer if so ordered by the Industrial Commission.”

Virginia—No Independent Medical Exams for injured workers…. But….

Unlike North Carolina, Virginia has no provision with regard to the payment by the insurance company for an Independent Medical Exam if the worker is being mistreated by the current treating doctor; however, Virginia is less restrictive in terms of choosing a doctor and paying for it on one’s own. In other words, if the injured worker has private health insurance, and he or she is dissatisfied with the care of the authorized treating physician, then the worker can go to whatever doctor he or she wants to, provided that individual is able to pay, either through private health insurance or with his or her own funds. If that new physician should have a clear and reasonable opinion that the authorized treating doctor is incorrect, or engaging in inappropriate treatment for the injured worker, then the Virginia Workers Comp Commission may very well side with the physician chosen by the injured worker.

In North Carolina, unless the injured worker takes advantage of the laws that permit either a change of treating physician or an authorized Independent Medical Examination, then the Industrial Commission has said it will ignore the opinions of any unauthorized treating physicians. In other words, seeking privately paid treatment would likely do little to change the course of one’s case in North Carolina.

Experience matters. North Carolina and Virginia lawyer Joe Miller is a strong advocate with a track record of success. He’s helped many clients get second opinions and has helped many clients switch physicians. To make an appointment now, please call 1-(888) 667-8295 or fill out my contact form

A compromise and release (C&R) is a way to settle your worker’s compensation claim. In Virginia, these are commonly called Full and Final Settlements, whereas in North Carolina, these are commonly called Clincher Agreements. These kinds of settlements are generally used for workers who are disabled from their pre-injury job and will likely need future, long-term medical care. There can be settlements even when the worker returns to his/her former job – based on the understanding that the worker will need continual funds for medical treatments.

These full settlements mean that the entirety of the case—both the future indemnity (some portion of the value of the future compensation checks the worker would likely receive), and the future medical value of the claim (some portion of the value of the future work injury care that the injured worker will likely receive for the remainder of his or her life) are completely resolved. In exchange for a lump sum which represents these two sides of the injured worker’s case, once the final settlement Order is entered by the Commission, then all of the ongoing benefits for both weekly checks and medical stop, permanently.  

General considerations

There are many considerations that you will need to review with an experienced North Carolina or Virginia work injury lawyer depending on where your claim is:

• Have you reached maximum medical improvement? Workers should usually not consider any lump sum settlement until they know the seriousness of their injuries. Typically, workers should continue treating with their doctors until it’s clear additional medical care won’t improve the worker’s health.  Once the worker has reached his/her maximum possible health, then a compromise and release may be advisable. Also, workers who reach MMI may still need to treat with doctors so their condition doesn’t get worse, or to simply assist with ongoing pain management.
• What is the level of your permanent work restrictions? There is a continuum of SEDENTARY, LIGHT, MEDIUM, HEAVY or some combination thereof. Usually these restrictions are determined via a Functional Capacity Exam (FCE). Then within the FCE, there are sometimes some additional specific restrictions as to the injury itself. (e.g., no overhead work).
• What is your lifelong job skill set prior to your work injury? For instance, if you have spent your entire life in manual labor, and you are now permanently restricted to sedentary (desk or sit-down work), it may be very difficult for anyone to find you a job. This will make it more likely that you will finish out the entirety of your Award and that you should receive a larger portion of your potential future payout in lump sum. On the other hand, if you have numerous skills outside of manual labor and you are highly educated, and you have physical injuries, your physical injuries will likely have less effect on your future job prospects. In that circumstance, the settlement value of your claim would be lower.
• What is your pre-injury average weekly wage? (AWW) It’s important to know this as your wage determines the amount of your comp checks each week (2/3rds of your AWW) and hence, the higher the AWW, the higher the comp checks, and also the higher the settlement value.
• How old are you? We all know that typically, severe injuries take longer to heal or may not heal if an injury occurs at age 57 vs. age 27. In addition, it is much harder to begin a new career with restrictions at an older age than it is when a worker is young.  
• What type of work injury do you have? Is it a partial disability or a full disability? If it’s a partial disability, you may be able to work at another job but for lesser pay. Full disability generally means you won’t be able to work again at your pre-injury job, and you are either 100% disabled, or restricted to such a degree that you have not been able to find a job within our physical restrictions.
• Does your injury qualify for additional compensation above and beyond being unable to work? Some injuries such as loss of vision, serious disfigurement, or an amputation may qualify for additional benefits. Your attorney will help you obtain a proper medical evaluation so you can claim this additional pay.
• Are you eligible for Medicare or will you be eligible soon? If so, then you will likely have to enter into a Medicare Set Aside agreement so it’s clear what workers’ comp will pay for your medical bills and what Medicare will pay.

Additional questions include:

• What are the tax consequences of a settlement?

• How do you determine what medical expenses you will have for the rest of your life?
• How is the amount of your claim adjusted because you are getting the money in a lump sum instead of payouts through the rest of your life?

Some of the answers to these questions are general. Most depend on the individual facts of your case.

When a settlement is truly a compromise rather than just paying a lump sum for certain benefits later.

The employee and employer may have different ideas on how much medical treatment you will need in the future. The amount that will be included in the settlement needs to be artfully negotiated so that the worker gets the best amount. Experienced work injury lawyers understand the legal arguments. They also work very carefully with your doctors to fully understand what treatments, medications, and other health care costs you’ll have. In some cases, it can be fairly clear that the worker will need to see a physical therapist several times a month. In other cases, where the health effects of the work injuries may deteriorate over time (such as when he/she has a disease), it can be harder to determine what care is needed. In other situations, the injury may be so severe that it is clear that as the worker ages, home healthcare or attendant care will be required, with potential significant future costs.

At the end of the day, unless dealing with a Medicare situation, the portion of the claim and any settlement that deals with future medical care comes down to the comfort level and a frank discussion between the injured worker and his or her attorney. How likely is it that the injured worker will require future surgery? How likely is it that the injured worker will return to employment and obtain health insurance to cover the cost of such surgeries? Are the contemplated future medical costs based in reality or are they just “worst case scenario” medical costs?

There are several reasons for entering into a compromise and settlement

• First, it means you control the funds instead of the employer. If there’s a settlement, you can decide which doctors you will see – you don’t have to see the company doctors. You get to pay the doctors directly which means you don’t have to argue about the bills with your employer or the insurance company.
• Second, you’re not on the defensive. You don’t have to worry about the employer constantly trying to say that you can return to work or that you’re not looking for work if you can work with restrictions.
• Third, it means you won’t need to work with a nurse case manager. While the manger can be useful, at times, the case manager is often trying to find a way to terminate your benefits by showing you’re not complying with the medical advice you’re given. It also means more privacy. In a settlement, it’s just you and your health care providers.
• You won’t have to work with the Vocational Counselor anymore. Let’s face it, although vocational rehabilitation is supposed to find you another job within your restrictions, the real game is to impair your case by tripping you up when you forget to come to meetings or follow up on some stupid job lead that you have no interest in. Then they drop the hammer and try to cut you off of benefits. Settlement gets you out from under those folks.
• It also means that you can invest the funds if you get a lump sum payment. With a long-term payout, you don’t have access to the funds now. With a compromise and release, you can use the lump sum to make wise choices such as paying off a mortgage or starting a business.
• It means your family has an inheritance if something should happen to you. If you were to die during receipt of your workers comp funds from an unrelated cause, in most cases, all payments would cease. By getting a lump sum, now that money is in your account, available for your use, or to pass on to your loved ones in case something should happen to you.

It is also important to understand that full settlement means just that—it settles all aspects of your case. It is possible to use the C&R to just settle just settle the wage issues (indemnity-only settlements),  but leave the medical payments open. The second scenario is useful, for example, when someone’s future healthcare costs are so extremely high or at this point unknown that it makes a full settlement impractical. In such cases, settling the indemnity side alone—providing a lump sum to the injured worker—while leaving the medical portion open, may make sense.

Then again, many insurance carriers simply refuse to engage in such settlements and insist on an “all or nothing” approach. Either the entire claim is resolved, or not at all.

There may be additional factors

Injured workers need to review what other benefits they may be entitled to with time or due to a disability. Some workers may be entitled to Social Security Disability. (SSDI) Workers may also be entitled to Social Security retirement income when they reach age 62. They may also be entitled to Medicare, Medicaid, or other government benefits.

Experienced lawyers will also review the workers’ family situation. Who can the employee rely on for support? The education and ability to earn another type of income needs to be considered. The severity of the injuries needs review. The more doctors and healthcare providers the patient requires, the harder it becomes to make an evaluation of how much money is needed for long-term health problems. If a worker has mental health difficulties, it can be extremely difficult to know how much psychiatric and psychological help the worker needs.

At the North Carolina and Virginia Law office of Joe Miller Esq., we have helped thousands of workers get just recoveries for workplace accidents and illnesses. We’ve been fighting for clients for more than 25 year. We’ll explain when you should consider a settlement and what the terms of the settlement should be. For help now, 1-(888) 667-8295 or complete my contact form to schedule a free appointment.

Workers’ compensation is a no-fault system. Any employee who suffers injuries due to a workplace accident is entitled to demand work loss benefits regardless of whether there is any fault on the part of the company. These benefits typically include 2/3rds of the worker’s average weekly wages for the length of time he/she cannot work. It also includes payment of all reasonably necessary medical bills including surgeries, doctor visits, time with therapists, medications, and the cost of medical devices.

Insurance-based statistics

According to the Insurance Information Institute, the workers’ compensation industry had the following interesting statistics for the years 2008-20017.

The industries with the most worker’s compensation claims between 2008-2017 were:

1. Laborers 64,410 claims
2. Truck drivers (tractor-trailer and heavy trucks) 47,860 claims
3. Janitors and cleaners 35,580 claims
4. Nursing assistants 34,210 workers compensation claims
5. General maintenance and repair workers 30,580 work injury claims
6. Retail salespersons 25,200 work injury claims
7. Registered nurses 24,540 worker claims
8. Store clerk and order fillers 23,990 workers’ compensation claims
9. Construction laborers 23, 290 work injury claims
10. Light truck and delivery service drivers 22, 830 work injury claims

There are some surprises in these numbers for the average work. The first is that construction work is only ninth on the list. Construction workers can be electrocuted, suffer serious burns, can fall from scaffolds and other heights, can be hit by vehicles such as trucks and cranes, can be struck by equipment, and often suffer back and neck injuries due to heavy lifting.

It may seem surprising that the nursing sector is so dangerous. Nurses can easily be infected. They must constantly move and manipulate patients and beds. Some patients may not be able to control their hostility. We represent and have represented numerous nurses and certified nursing assistants (CNA’s) who have been injured when heavy patients suddenly shift their weight and an injury occurs. We have also represented and continue to represent several nurses and other health care workers, particularly in the mental health field, who have been violently attacked by patients and suffered severe injuries.

Leading writers of workers’ compensation insurance policies

The top writers of insurance coverage for workplace injuries were the following companies. Employers are either required to have insurance for worker’s compensation claimants or they are required to self-pay if a workplace accident occurs.

1. Travelers Companies Inc.
2. Hartford Financial Services
3. AmTrust Financial Services
4. Zurich Insurance Group
5. Berkshire Hathaway Inc.
6. Liberty Mutual
7. Chubb
8. State Insurance Fund Workers’ Comp (NY)
9. American International Group
10. Old Republic International Corp.

Leading Causes of Workplace Fatalities

The U.S. Department of Labor keeps statistics for workplace deaths. In 2015, logging caused the most workplace deaths – 132.7 deaths per 100,000 full-time employees. The next occupations as to highest workplace death rates were:

• Fishing workers
• Aircraft pilots and flight engineers
• Roofers

On average 3.4 of out of every 100,000 workers died due to a workplace accident or illness.

When a worker dies in a workplace accident or due to an occupational illness, the family (typically the spouse and children, i.e. the dependents of the deceased) is entitled to some benefits. These benefits generally are:

• The reasonable cost of the funeral and burial up to a preset amount.
• A lump sum payment based on the remainder of the Award pertaining to the deceased worker.

The leading causes of work-related deaths for 2015-2016 were as follows:

1. Transportation deaths including vehicle crashes 2015. 2,054 2016. 2,083
2. Just vehicle crashes 2015. 1,264 2016. 1,252
3. Slips and falls 2015. 800 2016. 849
4. Assaults and acts of violence 2015. 703 2016. 866
5. Contact with equipment and objects 2015. 722 2016. 761
6. Exposure to harmful substances and environments 2015. 424 2016. 518
7. Fires and explosions 2015. 121 2016. 88

In addition, there were 417 homicides in 2015 and 500 homicides in 2016 that were work-related. The source for this set of data comes from the U.S. Department of Labor, Bureau of Labor Statistics, Census of Fatal Occupational Injuries.

Employer-based statistics

According to employer.com:

• Data from the US Bureau of Labor Statistics confirm the staggering number of workplace accidents. In 2012, for example, there were 3 million nonfatal claims for workers compensation – about 3.5 of every 1,000 full-time workers filed a work injury claim. Statistically, about 19 in 20 of these workers’ compensation claims were for workplace accidents. The other five percent were for occupational illnesses.
• As might be expected, police work was the most dangerous type of work. The risk of a workplace accident for police officers was, on average, five times more than for other job categories.

Workers’ compensation and fraud

There are two types of fraud. Fraud committed by employees and fraud committed by employers

Employee fraud

The main types of employee fraud were the following:

• Workers who claimed they were hurt on the job when they were actually hurt away from the job.
• Building up a minor work injury into one that is far more severe than it is – allowing the worker to collect more wage loss benefits and stay home from work for a longer period of time.
• Faking injuries altogether. For example, claiming a soft-tissue injury of the neck or back even though the worker isn’t hurt.

Employer fraud

Employers also do things that are fraudulent or dishonest to falsely deny a valid worker’s compensation claim. Common examples include:

• Claiming that a worker actually worked in a less hazardous job in order to pay the worker lower wage loss benefits.
• Trying to claim that a worker was an independent contractor and not an employee. Employees are generally entitled to file a worker’s compensation claim for wage loss and medical expenses. Independent contractors are not entitled to file workers’ compensation claims. That being said, the employer does not have the final say as to a worker’s status. Whether a worker qualifies as an employee or an independent contractor depends on a variety of factors such as who has the right to control how the worker does his/her job and when the job is done. Unfortunately, we see this “misclassification” defense frequently. It is clearly fraudulent and done by employers for many reasons. One is they obviously do not want to pay for workers compensation insurance, but in addition, by classifying workers as independent contractors, they can avoid payroll taxes and paying for health insurance as well.

Additional workers’ compensation findings

According to the Social Security Administration, in 2013 the total amount of worker’s comp benefits nationwide was $63.6 billion. This total was based on the following:

• Payments for medical benefits – $31.5 billion
• Payments for wage loss compensation – $32.0 billion. This sum includes payments to workers who are disabled and to the survivors of deceased workers.

The amount employers pay for workers’ compensation varies depending on the following factors, among others,

• The risk of injury
• The industrial classification
• The experience rating

At the North Carolina and Virginia Law office of workers’ compensation lawyer Joe Miller Esq., we fight to get injured workers all the compensation they deserve. We are strong advocates for injured employees. Our office has helped thousands of injured and ill workers get the compensation they deserve. To speak with an experienced attorney, call 1-(888) 667-8295 or complete my contact form to schedule an appointment.

Some claimants, mostly older workers, are entitled to Medicare in addition to workers’ compensation. We all know that once you qualify for social security retirement, at age 65, you also qualify for Medicare. In addition, if you become entitled to Social Security Disability Benefits or SSDI, you will automatically become Medicare Eligible at 24 months from the date that Medicare deemed you to be completely disabled from all work. Since both Medicare and workers’ compensation can pay for medical expenses, a question arises – who should pay for your medical bills related to your work injuries? The workers comp insurance company or the U.S. Government? If both paid, the healthcare providers would either be paid twice, or you might get a windfall by pocketing the money for future treatment – so there needs to be some procedure to prioritize and allocate the medical bills. Generally, the employer’s workers’ compensation is the primary carrier and Medicare is the secondary payer.

The problem arises mostly when the worker and the employer are thinking about a long-term settlement (commonly called a full and final settlement or Clincher) and the worker is either already Medicare Qualified or is on SSDI currently, or otherwise expects to apply within the next 30 months.  The method used to protect Medicare from overpaying is called a Medicare Set-Aside (MSA) account.

How does the Medicare Set Aside (MSA) work?

The easiest way to think about a Medicare Set Aside is that it is a way of protecting the Medicare program from paying for something that private insurance has agreed to pay. In other words, it prevents “double dipping” by the injured worker receiving a sum of money for future medical care from the workers comp insurance company, and then turning around and using Medicare to pay for that very same medical care. (and pocketing the insurance money). That would not be fair to the Medicare system and would cost the taxpayers undue funds. So, what we are required to do is protect and consider Medicare’s interests by “setting aside” the money that is designated in any settlement to pay for future medical care related to the injured employee’s work injuries.

The Medicare Secondary Payer Act, 42 U.S.C. §1395y provides that other insurers, such as workers’ compensation, will pay for an injured person’s medical expenses in an accepted claim.  The compromise and release provides that a specific sum will be used for the employee’s medical bills. The Act then provides that when this specific set aside amount is used up, then Medicare will start paying for the reasonably necessary medical treatments. The Medicare-Set Aside estimate that is usually in the form of a detailed report and if the worker is currently Medicare eligible, the report must be submitted to the Centers for Medicare & Medicaid Services (CMS) prior to final settlement so they can review the patient’s needs and the amount of the set-aside.

The workers’ compensation medical set aside, according to Atlas Settlement Group, Inc. should be submitted to CMS as follows:

• If the injured claimant is currently on Medicare and the amount of the settlement is more than $25,000 or
• The injured claimant reasonably expects to file for Medicare within 30 months of the compromise and release settlement – and the amount expected to be paid for future medical expenses and lost wages during the lifetime of the settlement is expected to be $250,000 or more.

There is a reasonable expectation of enrollment if any of the following applies:

• • The claimant has applied for Social Security disability
  • The claimant is 62.5-years-of-age
  • Other conditions that may apply

How is the MSA handled?

Generally, the funds for the medical set aside agreement are placed in an interest-bearing account.

Sometimes the amount of the account is paid to the injured worker by the insurance company in one lump sum and is administered by the injured worker. Other times, particularly when there is a large amount to distribute, the payment occurs with seed money for the first year, and then annual distributions over time from the insurance company or from an annuity purchased by the workers comp insurance company. Payments should be made from the account only for reasonable medical expenses that Medicare would otherwise cover that are related to the work injuries.  These medical expenses include hospital stays, doctor visits, treatments with different types of therapists, psychiatric help, medical devices, and medications. The person administering the MSA, if the account is self-administered, is required to provide CMS with a yearly accounting of distributions to the health providers. This is done on a simple form that Medicare provides once the MSA is approved. Again, this formal accounting is only required if the injured worker is a current Medicare recipient or is otherwise qualified to receive Medicare at the time of settlement. A final audit is prepared if and when all the available funds have been spent.

Sometimes, a medical management company is hired by the workers compensation insurance company to administer and monitor the MSA funds and in those cases that company would be responsible for the annual reporting.

Of course, it is possible that all the funds in the MSA will never be spent, and in that instance, whatever is in the account remains the estate of the injured worker upon his or her passing.

According to NCCI, the time to process CMS reviews is decreasing. In 2015, the CMS took, on average, about 70 days to review the average MSA. Large MSAs take more time to review than MSAs for smaller amounts.

CMS often responds to an MSA request in a settlement by stating that more money than is recited in the proposed report needs to be set aside. CMS needs to balance what the worker needs with what it thinks it should pay. When claims are large, more than $200,000, CMS on average requests that an additional six percent be set aside. When claims are small, under $25,000, CMS on average is requesting a 51% increase in the set aside amount. The main reason for CMS increases, at every amount, are that that more money is needed top pay for future drug costs which are constantly on the rise.

In general, the amount that workers’ compensation medical set asides need to budget for Medicare Part A and part B is fairly stable from year to year. NCCI claims that the amount for Part D prescription drug services is beginning to stabilize too.

Other NCCI findings

When there are large MSA compromises, more than $100,000, there is usually a corresponding severe injury. Severe injuries include brain injuries, back injuries that involve surgeries, burns, and the amputation of a body part. Workers with these injuries often need long-term treatment with pain management doctors for their chronic pain and treatment with emotional health doctors and counselors for their depression. These treatments often include high prescription medication costs.

Nearly 64% of workers’ compensation who need a Medicare set aside are already on Social Security Disability. 29% of claimants are eligible for Medicare because of their age. About 7% of claimants will become eligible for Medicare in the next two and half years.

Claimants generally need to wait until they have reached maximum medical improvement (MMI) before they consider a compromise and release – and the accompanying MSA. There’s no point in settling a work injury claim until you fully understand your medical condition and how much medical care you will need. Most MSA submissions take place about four years after the workplace accident happened. It’s not unheard of for an MSA to be prepared 10-15 years after the accident. Submission of MSAs in the same years as the accident are rare, although they do occur.

MSAs in general are about 42% of the compromise and settlement amount. The breakdown is typically in the following range for a compromise and release:

• 22% for Part D, prescription drug coverage.
• 20% for Parts A and B – the hospital stays, visits to the doctors, and other related services.
• 58% for such things as medical costs not covered by Medicare, legal fees, and indemnity coverage.

More than half of the workers who submit MSAs use an experienced workers’ compensation lawyer. An experienced lawyer understands the need to work with your doctors to understand and verify your medical records and future needs. The lawyer will be sure to help you understand what you are looking at on the Medicare set aside, and also what future medical needs might not be covered by Medicare, (and hence need to be claimed as a separate future expense) such as long-term home care or attendant care, and how much it could cost. A skilled attorney understands what arguments the employer’s lawyer or insurance company will make to try to say everything should be part of the MSA. He’ll also explain tax consequences and other legal and practical matters.

Understanding CMS review trends helps understand what claims will be approved and which ones will need modification. The sooner a claim is approved, the sooner the payments from the compromise and release can be made. The payments include the wage loss payment and any permanent disability benefits – in addition to the medical expenses.

In cases where the claim is self-administered by the employee, we always recommend that the employee obtain a separate debit card for the account and use that card whenever he or she pays any work-injury-related healthcare costs. That way, at the end of each year, the worker has a bank statement that outlines all of the related costs and makes it very simple to do the annual report to Medicare.

Non-Obligatory MSA’s.  Oftentimes, workers engage in compromise settlements that do not meet the CMS threshold of review as set forth above. That means that the injured worker is not a current Medicare recipient and the settlement is not over $250,000.00. The problem is that the injured worker is not 100% sure about his or her future. The worker may be considering applying for SSDI within the next 30 months. Also, something could happen, such as a car accident or other unforeseen injury that completely incapacitates the injured worker. In those cases, if no attempt is made to consider Medicare’s interests, then the injured worker may run into problems when he or she qualifies for Medicare and attempts to utilize Medicare to pay for work-injury-related treatment. This could be the case, even though at the time of settlement, the worker was not a Medicare Recipient.

So in these “non-obligatory” cases, we often recommend that an “informal” Medicare Set-Aside be made, whereby some amount of funds is recited in the settlement documents to be set aside by the injured worker to protect Medicare’s potential future interests. There is typically no formal MSA report in these circumstances and of course, nothing needs to be submitted to CMS for approval. We merely come up with a very rough estimate of the amount of future funds that may be necessary to pay for the future medical care of the injured worker.  The injured worker is then advised to set up his or her own separate account for these funds and even call it an MSA account. Although there are no yearly accountings necessary in these cases, we also recommend the same thing as in a normal MSA, namely, that the injured worker obtain a separate debit card to make it easier to track expenses and utilize the funds in the MSA for nothing except healthcare for the work-related injuries.

That way should the injured worker bump up against any issues in the years following settlement whereby he or she should be forced to make use of Medicare, the injured worker will have ample evidence that Medicare’s interests were taken into account.

At the North Carolina and Virginia Law office of Joe Miller Esq., our experienced workers’ compensation lawyers understand when the right time is to consider an overall settlement. We fight to get you the correct sum for your medical needs and lost wages. For help now, call 1-(888) 667-8295 or complete my contact form to schedule a free appointment.

Attorney Joe Miller explains why in a Virginia Workers Compensation Case or North Carolina Workers Compensation Case, only the authorized treating physician (ATP) can provide you with work restrictions: