Posted on Tuesday, November 5th, 2019 at 10:22 am
It’s tempting for many North Carolina and Virginia workers to think that their employer and the employer’s insurance company are on their side – especially when they’re paying you 2/3rds of your lost wages and paying for your medical bills. While this may seem nice, it can hurt your case in many ways. The best course of action is to consult with an experienced work injury lawyer who will protect your rights by filing a formal workers’ compensation claim on your behalf. The bottom line is that if you are not under an Award in Virginia or you do not have an Accepted Claim in North Carolina, your benefits are in serious jeopardy.
In Virginia, a claim is formally started by way of a Claim Form. In North Carolina, this is done via a Form 18.
Some of the reasons workers need to file a formal claim, instead of relying on the informal kindness of their employer are:
A Form 60 is Filed by the Carrier if they are accepting the claim.
A Form 63 is filed by the Carrier is they are conditionally accepting the claim (i.e. they need to investigate a few things first)
A Form 61 is filed by the Carrier if they are denying the claim.
Employees should understand that there is no expense to file a claim but, as mentioned, there are time limits – generally one day less than two years from the date of the accident. These limits can be extended in some cases if the employee is receiving benefits, but a competent worker’s comp attorney should be consulted to see if you are being protected appropriately. When in doubt, FILE.
Virginia and North Workers’ Compensation Attorney Joe Miller Esq. has the experience and skills to help you get your full benefits and help you fight attempts by the employer to terminate or reduce your benefits. He has helped thousands of workers get strong recoveries and has been representing injured and ill workers for more than a quarter of a century. To speak with a persuasive workers’ compensation attorney, call lawyer Joe Miller at 888-667-8295. or use my contact form to schedule an appointment.
Posted on Saturday, November 2nd, 2019 at 10:20 am
Injured works and ill workers in North Carolina and Virginia are entitled to have all their reasonable and necessary medical expenses paid. This includes more than just paying hospitals for surgeries and hospital visits, doctors for their reviews and treatments, and therapists for their continual care. It includes more than the cost for medical devices and prescriptions.
Workers also have the right to have the insurance company for the employer pay for the cost to get to the hospitals and their doctors. This is especially fair because the employer chooses the doctors patients can treat with and the choice is what’s best for the employer, not what’s best or convenient for the employee.
In both North Carolina and Virginia, the mileage and transportation costs include the cost to pay for cabs and rideshare services, public transportation, parking lot fees, and tolls. For employees who drive their car to the medical provider’s offices, they are entitled to a mileage allowance.
Reimbursement costs don’t include the cost of gasoline to get to these medical offices and they don’t cover trips to the pharmacy. Pharmacy costs generally aren’t covered because many workers and doctors can use mail pharmacy services.
According to the North Carolina Industrial Commission rules, mileage reimbursement is allowed for trips 20 miles or more (round trip – so 10 miles each way) as follows:
In North Carolina, this is done through a Form 25T. If employees travel 20 miles or more round trip for medical treatment in workers’ compensation cases, they are entitled to collect for mileage at the rate of 25 cents a mile for travel prior to June 1, 2000;
The IRS sets the reimbursement rates so the amount workers can be reimbursed is the same in Virginia as it is for North Carolina. As of this writing, it is .555 cents per mile. In Virginia, there is no prescribed form to recover mileage, but it should be done clearly and legibly, with each date of service listed as well as the mileage roundtrip for each date.
In addition to transportation expenses, in North Carolina: “Employees are entitled to lodging and meal expenses, at the rate established for state employees by the North Carolina Director of Budget, when it is medically necessary that the employee stay overnight at a location away from the employee’s usual place of residence.”
Your North Carolina and Virginia workers’ compensation lawyer will help you obtain and fill out the correct reimbursement forms. It’s critical that you document all your travel expenses. This means getting receipts where you can and keeping a travel and mileage journal.
Posted on Wednesday, October 30th, 2019 at 10:19 am
Many older workers who are injured on the job or suffer an occupational illness are entitled to both Medicare and Worker’s Compensation benefits.
There are two general issues involving Medicare. The first involves the regular medical submissions from doctors and other health providers while the employee is getting treatments so they can return to work – or know if they can’t return to work. These payments are paid until the worker reaches maximum medial improvement – the point at which future medical treatments won’t help the worker’s health improve.
The second issue involves the settlement of the claim after the worker has reached maximum medical improvement. In a settlement, funds need to be allocated ahead of time, often before the worker is eligible for Medicare, to account for what Medicare will pay and what workers’ compensation will pay. This is discussed in several places on this website and is known as a Medicare Set-Aside (MSA).
Workers’ compensation is managed by the state where you work. Medicare is a federal program. Generally, the bills for work injuries are submitted to the insurance company for your employer. If they refuse to the pay the bill with 120 days, then Medicare should pay the bill – conditionally. This means Medicare pays the bill – but reserves the right to be reimbursed if it is agreed that the workers’ comp carrier should have paid the bill or there is a ruling that they should have paid the bill.
The medical bill should be something that Medicare covers. Complicating matters is that Medicare normally only pays 80% of hospital and physician services. Supplemental insurance pays the other 20% if the worker has supplemental insurance. The issues get more complex if the worker has reached the age of Medicare eligibility before he/she has reached maximum medical improvement.
A Workers’ Compensation Medicare Set-Aside Agreement is used to pay future bills in a settlement. Typically, before any long-term settlement is reached, the lawyer for the employer will contact a company who specializes in estimating the future medical costs of the injured worker in relation to their work injuries. That company will usually then prepare a detailed Medicare Set-Aside report which sets forth, in great detail, the estimated amounts of the injured worker’s future treatment for his or her work injuries.
If the injured worker is a current Medicare recipient, the employer’s attorney must then submit that report to Medicare’s CMS Office to get approval for any funds that are set aside to pay Medicare in the future. This is money that is set aside is first used to pay the future medical expenses in relation to the employee’s work injuries. Once approved by CMS, the settlement can then proceed.
Only when the set-aside amount is used up can the worker request that Medicare pay for any other future medical bills. To ensure that Medicare isn’t paying more than it should, if the worker is a current Medicare recipient, he or she must obtain the OK from Medicare for set-aside amount. Sometimes the set-Aside arrangement will be lump sum, other times it will be an initial seed amount, followed by yearly payments for a set number of years to the worker. In addition, sometimes the Medicare money is “self-administered” by the employee, and other times, it is administered by a Medical Management Company.
If the injured worker is not a current Medicare recipient, but the settlement is over a certain amount and the worker has applied for Social Security Disability (SSDI), it is recommended that a Medicare Set Aside be done privately by the employee as part of settlement, and that the amounts set aside be recited in the settlement agreement. This is to make sure Medicare’s interests are protected, because a worker who is deemed disabled by the Social Security Administration will automatically qualify for Medicare at 24 months from his or her date of disability. Although such arrangements for non-Medicare recipients do not have to be reviewed in advance by Medicare, they are advisable to avoid any problems down the road.
The bottom line is that the law wants to prevent “double-dipping.” Medicare does not want to see a worker receiving a settlement which includes money for future medicals for his or her injuries, and then see that same worker turn around and hit up Medicare for those same bills.
Experienced workers’ compensation lawyers know how to review Medicare-Set Aside plans to help determine what your future medical needs such as continued therapy, medication, or diagnostic procedures a will be. Once a settlement is made, the employee can’t go back and ask for more. That being said, the beauty of a formal Medicare Set-Aside is that once the money is used up, the worker can then turn to Medicare to cover his or her treatment related to the work injuries.
Virginia and North Workers’ Compensation Attorney Joe Miller Esq. knows his way around the rules pertaining to authorized physicians as well as Medicare. He’ll help you come up with legitimate strategies to find a solution if the company doctors are more interested in rushing you back to work than in treating your injuries or illnesses. He’s helped thousands of employees get the full workers’ compensation awards and settlements they deserve. For help now, call lawyer Joe Miller at 888-667-8295. or fill out my contact form to make an appointment.
Posted on Monday, September 23rd, 2019 at 11:06 am
Workers who were injured while doing construction work, retail work, hospital work, or any type of work have the right to get the best health care available to treat their injuries. Many injured employees need to treat with their doctors for months or longer before they begin to see improvement. Some workers are fortunate to return to their old job. Many workers need to work to work with medical restrictions.
Injured workers have the right to be compensated for their injuries (typically at a 2/3rds rate) until they reach maximum medical improvement – the point where additional medical care won’t improve their health. When they reach MMI, workers have the right to have their treating doctor assign a permanent partial disability rating. The worker is entitled to this rating if they haven’t returned to work – and even if they have returned to work.
Impairment ratings are authorized by the North Carolina Workers’ Compensation Act. Once the rating is assigned, the worker can request a lump sum payment for lost wages based on the impairment rating. The worker will still be entitled to have the employer’s insurance company pay their medical bills so their health doesn’t get worse – provided they comply with the necessary formalities.
Impairment ratings are set forth in North Carolina Statute 97-31. that most workers are entitled to for up to 500 weeks – provided they are unable to return to work.
A common misconception is that the permanency or impairment ratings are very important in valuing a worker’s comp settlement. Many times, that is not the case. If one is unable to return to his or her occupation due to the work injury, then that is certainly not true. Impairment ratings are only relevant in terms of settlement discussions in cases where the injured worker has RETURNED TO WORK at the same or higher wage as the pre-injury job. This is because in those circumstances, his or her ongoing benefits would have ceased, so that all that remains would be the weeks the worker would be entitled to based on the impairment ratings.
If the injured worker is unable to return to his or her occupation, in most cases, the impairment rating is not relevant to settlement discussions. This is because one cannot get more than 500 weeks of benefits except in rare cases. The ratings cannot ADD to the 500 weeks and one cannot get ratings money at the same time one is getting weekly checks for workers comp.
So, what becomes relevant in a case where a worker cannot return to his or her job is how many weeks remain of the maximum allowable weeks of 500 weeks. Usually, the impairment ratings, unless there are extremely severe injuries to multiple body parts, are not going to come anywhere close to the remainder of the 500 weeks. So that number—the number of remaining weeks of the 500 weeks times the weekly workers comp check—becomes the most relevant number when discussing a settlement of the claim.
The worker should review with an experienced North Carolina work injury lawyer whether his or her case fits into the category of a matter that falls under a ratings-type case or a disability-from-work claim. There are other considerations that the lawyer will review such as the need to look for alternative work if you’ve reached MMI. If you’re not careful, you may even lose your weekly benefits if you don’t follow the correct procedures.
Workers who are likely to return to work soon, or have returned to work at the same or higher watges and don’t anticipate much additional medical care would be more likely to be accepting an impairment rating payout as part of any settlement.
Your treating doctor will review whether you have an injury that is listed in the North Carolina impairment statute. If you do, the physician will then determine the severity of your injuries based on North Carolina Industrial Commission standards or standards established by the American Medical Association. The rating examines whether you have lost the full use of an arm, for example, or whether you some limited ability to use the arm. Ratings today are typically done through Functional Capacity Examinations (FCE’s). The treating doctor merely signs off on those ratings. If the treating doctor’s rating seems wrong, workers can request a second opinion at the employer’s insurance company’s expense.
For example, the loss of hearing is paid at 2/3 rds of your average weekly wages for 70 weeks for the loss of hearing in one ear. The amount rises to 2/3rds of your average weekly wage for 150 weeks for the loss of hearing in both ears.
So, if you were earning $900 a week, your comp rate would be $600.00. If you lost hearing in one ear, the doctor will assess the degree of loss. If the impairment rating is 30% for hearing loss in just one ear, that would be 70 weeks x .30 or 21 weeks. Then your payout would be $600.00 x 21 weeks or $12, 600.
The North Carolina statute assigns the following ratings losses for some injuries. The statute contains the full list:
In cases included by the following schedule the compensation in each case shall be paid for disability during the healing period and in addition the disability shall be deemed to continue for the period specified, and shall be in lieu of all other compensation, including disfigurement, to wit:
Additional injuries covered include:
Other injuries and conditions apply.
Virginia and North Workers’ Compensation Lawyer Joe Miller Esq. has helped thousands of injured workers get the full workers’ compensation benefits they deserves. He works with the treating doctors and independent doctors to properly assess your medical condition. He’ll detail how much money you will get if you continue on disability or if you settle your claim in a lump sum. To speak with an experienced work injury lawyer, call attorney Joe Miller at 888-667-8295. or complete my contact form to make an appointment.
Posted on Thursday, September 19th, 2019 at 11:06 am
Workers who are injured on the job can take months or even years before their injuries are properly healed. Many employees with severe injuries such as spinal cord damage, lost vision, or traumatic brain damage never fully heal.
In workplace injury cases, the initial medical goals are to treat any emergency conditions, make a proper diagnosis of the worker’s injuries, and develop a treatment plan. The physicians should also explain to the patient the long-term prognosis for their medical condition. The employer’s insurance carrier (unless the employer is self-insured) is required to pay for all necessary medical care to help the worker improve physically and emotionally – as much as possible.
A major medical and legal determination and milestone in an injured worker’s case is when he or she finds out if the worker can return to his or her job. Another important determination connected with this is whether the worker has reached maxim medical improvement (MMI).
MMI is the point where additional medical care is not reasonably likely to improve the health of the worker. Additional surgeries aren’t likely to help and additional therapies aren’t likely to help. MMI does not automatically mean the end of medical care because some injured workers still need physical and other types of therapy such as pain management so their condition doesn’t worsen or they can achieve ongoing pain relief.
MMI does not mean the worker is as healthy as he/she was before the accident. It just means that additional medical care won’t make a major difference. When a worker has reached MMI, then he/she should work with an experienced North Carolina workers’ compensation lawyer to review the following issues:
Workers who have reached maximum medical improvement could also consider settling their overall claim. Workers generally can’t settle their claim if there’s the reasonable probability that continued medical care of a substantial nature would improve their condition. This does not mean medical care such as pain management or the ongoing taking of medication. MMI is typically not declared by the treating physician if additional, major procedures such as surgery are upcoming.
On the other hand, if the worker has been declared to have reached MMI, then what usually happens is the treating physician will refer the worker for a Functional Capacity Exam (FCE) to determine their permanent physical restrictions.
After receiving the results of the FCE results, that is usually a good point to think about seeking a lump-sum settlement based on the worker’s average weekly pay, the standard 2/3rds adjustment of the pay, the number of weeks they can still receive pay, (which is usually the remainder of 500 weeks if they are under an Award or under an Accepted Claim) their likely future medical bills, and other factors.
In North Carolina, a settlement agreement in a workers’ compensation case is called a Clincher Agreement. In Virginia, it’s simply called a Full and Final Settlement. Once you accept the lump sum payment as a settlement, upon entry of the Settlement Order by the Workers Comp or Industrial Commission, your rights to income payments due to a temporary total or temporary partial disability generally stop, as do your medical benefits.
There are a lot of pros and cons to settling your case once you’ve achieved MMI:
Additionally, as noted above, the worker can seek an impairment rating which can result in income payments based on the type of injury the worker has the severity of the injury. The severity of the injury is based on an impairment rating typically expressed as a percentage, and that rating is then translated into a number of weeks of payments, all set forth in the statute books. Typically, the treating doctor will assign an impairment rating based on the workers condition and standard medical guidelines such as those of the American Medical Association or the North Carolina Industrial Commission.
A common misconception is that the permanency ratings are very important in valuing a worker’s comp settlement. If one is unable to return to his or her occupation due to the work injury, then that is certainly not true. Impairment ratings are really only relevant in terms of settlement discussions in cases where the injured worker has RETURNED TO WORK at the same or higher wage as the pre-injury job.
If the injured worker is unable to return to his or her occupation, in most cases, the impairment rating is not relevant to settlement discussions. This is because one cannot get more than 500 weeks of benefits except in rare cases. The ratings cannot ADD to the 500 weeks and one cannot get ratings money at the same time one is getting weekly checks for workers comp. So, what becomes relevant is how many weeks remain of the maximum allowable weeks of 500 weeks. Usually, the impairment ratings, unless there are extremely severe injuries to multiple body parts, are not going to come anywhere close to the remainder of the 500 weeks. So that number—the number of remaining weeks of the 500 weeks times the weekly workers comp check—becomes the most relevant number.
Reaching your MMI does not mean your disability benefits end. They continue as long as the law allows, meaning unless you settle your claim or return to a job paying the same or higher wages as you had before you were hurt.
The impairment rating is essentially based on whether your type of injury is covered by the North Carolina statutes – at NC Workers Compensation Act 97-31.
Covered injuries are assigned a number of weeks. For example, the loss of an arm is assigned 240 weeks. If you can still use your arm but not as much as before the accident, the treating doctor will assign an impairment rating to reflect the degree of loss. If the impairment rating is 20% that would equate to 240 x .20, or 48 weeks. Then if your average weekly income was $1,000 a week – then your comp payments are $666.67 per week. So you would be entitled to 666.67 x 48 weeks, or $32,000.16.
Workers in North Carolina have the right to challenge the impairment rating of the treating doctors by getting a second opinion which is paid for by the employer’s insurance carrier. If the ratings differ, then the North Carolina Industrial Commission may be required to decided which rating to use. No such right exists in Virginia.
Virginia and North Workers’ Compensation Attorney Joe Miller Esq. has been helping injured workers for more than 25 years. He’ll review and explain your options once you’ve reached maximum medical improvement. He’ll work with your doctors and you so that you make the right choices for your physical and economic needs. To review your case now, call lawyer Joe Miller at 888-667-8295. or use my contact form to make an appointment.
Posted on Thursday, August 1st, 2019 at 3:23 pm
For many workers, once it becomes clear that they have reached maximum medical improvement (MMI) (that no further treatments will improve their health), it makes sense to start thinking about their long-term position. Some of the reasons workers consider lump-sum payments are:
The amount you receive will be discounted to reflect the idea that the lump sum can earn interest over the time you normally would have waited to get your payments.
If, as we’ve pointed out before, you are receiving any unemployment compensation pay, you will lose the right to claim those benefits.
The answer depends on your type of injuries. The basic types of injury categories in North Carolina are:
If all these criteria are met, you will be entitled to checks of 2/3rds of your average weekly wage for the remainder of your life.
It is typically not advisable for a worker to settle his or her workers’ compensation claim if the worker has not reached maximum medical improvement. Additional surgeries, treatments, and therapies may improve your condition. They can be quite expensive. You shouldn’t forfeit the right to get as healthy as you can by having the employer and insurance company pay for that treatment. Then again, each and every case is different.
You may feel, for instance, that your skill set will enable you to obtain an alternate job where you can find health insurance which will likely cover future costs, in which case, it may make sense for you to examine settlement.
Once workers have achieved their maximum health, some may not need additional medical care – for example, if they broke a bone and the bone has healed. Many workers, however, will need continuing health care to prevent their condition from getting worse. This is especially critical for workers with occupational diseases which often worsen with time. Workers with chronic injuries or other physical injuries may need constant help. If a worker needs a prosthetic, the prosthetic may wear out with time. The cost of medications must be part of the overall clincher settlement agreement.
There is always some risk in settling your case if you need more medical care. An experienced workers comp attorney can help you make an estimate as to what your future medical bills will be.
In any event, once it is determined that a full and final settlement of your case may be advantageous, your attorney will help calculate your future medical costs related to your injury by first estimating our life expectancy. This can be done by relying on certain statutes in North Carolina that actually provide the average life expectancies for both males and females each year across the State.
One complicated problem is how your Medicare benefits and Social Security benefits are figured since many workers may be eligible for both Medicare and workers’ compensation benefits if they have a lifetime disability or were older when they first applied for work injury benefits. This is typically handled through something called a Medicare Set-Aside Arrangement or MSA. Basically, if you are a current Medicare recipient or if you are on Social Security Disability, you cannot settle your workers compensation claim without taking into account Medicare’s interests.
Also, if you’re going through a divorce, you’ll need to review your marital rights with a family lawyer.
North Carolina Workers’ Compensation Attorney Joe Miller Esq. has been fighting for injured workers in North Carolina and Virginia for more than 30 years. He is highly respected by his legal peers and former clients. He’ll fight to get you every dollar you deserve. He’ll contest any effort by the employer to terminate or reduce your benefits. Call attorney Joe Miller today at 888-667-8295. or use my contact form to schedule an appointment.
Posted on Monday, July 29th, 2019 at 3:22 pm
In our continuing series of answers to frequently asked questions about work injury claims in North Carolina, here are more questions and answers. As with all workers’ compensation cases, the best course of action is to contact an experienced work injury attorney. Each state has different rules. All answers have some exceptions which depend on the facts of your case.
Mediation-also known as “alternative dispute resolution,” is an informal process where the parties to a case attempt to resolve the case, usually via negotiation of a full and final settlement. In North Carolina, the reaching of such an agreement has traditionally been known as a “clincher” agreement.
In North Carolina, about 70% of cases are resolved at a mediation conference which helps to save time and can save costs. If the case can’t be resolved, then the case is heard before a Deputy Commissioner of the Industrial Commission. Normally, your lawyer and the employer’s insurance carrier will choose a mediator from a list approved by the North Carolina Industrial Commission. If the two sides can’t agree on a mediator, then the North Carolina Industrial Commission will appoint one. Each side shares the cost of the mediator. As the NCIC says on its website, the employer’s insurance company will usually have a lawyer, so it’s in your best interest to have a lawyer fighting for you.
The mediation is held at a mutually agreeable location, which may be at either attorney’s office, the mediator’s office, or a third party’s office if all of those are inconvenient. Mediation is a relatively informal process. The mediator, usually an attorney familiar with workers comp, will begin by explaining the process, and what his or her role is.
Each side then gives a presentation, outlining what evidence they will present if the matter proceeds to hearing. The plaintiff does not have to testify and there are usually no witnesses.
Once those presentations are made, the parties usually then separate into two separate rooms and the process of negotiation begins. Depending on the size of the case and the willingness of the parties to resolve the claim, the mediation process can last from a half hour to an entire day. Your attorney may occasionally pull out pieces of evidence or medical records for the other side to review that might “loosen the purse strings” at various stages of the discussion, but other than that, the process is a bit like buying a car. A lot of back and forth on the numbers.
At the end of the negotiation, one of two things will occur. Either the mediator will prepare a mediation agreement, or he or she will declare an impasse. If an impasse is declared, that means the parties were unable to reach an agreement, and the matter will proceed to hearing at an upcoming date.
The Mediation Agreement.
The Mediation agreement is a short summary of what the parties agreed on at the mediation. It is drawn up by the mediator and signed by all parties before anyone leaves the location of the mediation. It is not the final agreement; however, what is advantageous about a mediation agreement is that in North Carolina, it is recognized as a legal document. In other words, should something happen to you, the agreement obligates the defendant to pay your estate as set forth in the agreement. If also puts into place an obligation of the defendants to send a completed clincher agreement for your attorneys’ review within 30 days. This is one of the reasons we like mediation in North Carolina. If the parties can resolve the claim, you leave the proceeding with a tangible, enforceable, legal document, not just a “promise.”
A clincher agreement is an overall settlement of a worker’s claims – past, present, and future. Once a clincher agreement is completed and signed, there’s no do-over. It is the document that the defense lawyer will send to your attorney if the mediation or other negotiation reached a successful conclusion.
The fundamental basics of a clincher agreement are:
The NICI will review the agreement to make sure it complies with Rule 502 which provides that approval requires that:
If the employee hasn’t returned to a job at the same or greater wage (as prior to the workplace accident or occupational illness), the clincher agreement should state whether the employee “has, or has not, returned to some other job or position, and, if so, the description of the particular job or position, the name of the employer and the average weekly wage earned.”
The clincher agreement should then also “summarize the employee’s age, educational level, past vocational training, past work experience, and any impairment, emotional, mental or physical, which predates the current injury or occupational disease. The parties will be relieved of this duty only upon a showing that providing such information creates an unreasonable burden upon them.”
“This subsection (the part about returning a job or new position) of the Rule shall not apply where the employee is represented by counsel or, even if the employee is not represented by counsel, where the employee certifies that partial wage loss due to an injury or occupational disease is not being claimed.”
The proposed clincher agreement is typically drafted by the defense attorney in North Carolina, and emailed to your lawyer.
A skilled North Carolina work injury lawyer will explain all of the items set forth in the clincher agreement and also make sure that certain language is included to protect you—for instance, if you wish to file for Social Security Disability, certain language must be in the clincher agreement or you could be prevented from obtaining your SSDI benefits for a very long time.
Once your attorney says it’s ok, he will review the agreement with you and have you sign it. After that, the signed agreement is returned to the defense attorney for filing with the NCIC, along with your attorney fee agreement with your lawyer.
If the clincher/settlement agreement is approved by the NCIC, they will issue and typically fax to both parties a settlement Order, setting forth the amount agreed upon and the attorneys’ fees.
After that, the worker’s comp carrier has up to 47 days to mail out your settlement check to you. A separate check is made out for your portion and the portion representing attorneys’ fees.
Attorney Joe Miller understands that you may be anxious to settle all your claims at once. He’ll guide through the settlement/clincher process if you have reached your maximum medical improvement. He’ll review your past and future medical expenses and your past and future wage loss issues. For help filing and resolving your workers’ compensation case, call attorney Joe Miller at 1-(888) 667-8295 or use my contact form to schedule an appointment.
Posted on Monday, July 1st, 2019 at 10:29 am
Workers have the right to ask questions about their workers’ compensation claim. Experienced work injury lawyers are happy to answer all your North Carolina and Virginia workers’ compensation questions.
Anyone who is injured while working on their job has questions about their rights. Anyone who suffers an illness due to workplace conditions needs to understand their rights. The best advice for any employee who becomes injured or ill working is to make an appointment with an experienced North Carolina or Virginia workers’ compensation lawyer. He can answer your questions, guide your through the workers’ compensation process, and advocate on your behalf.
Some of the more common questions, employees have about workers’ compensation include:
Generally, only employees of a company can file for work injury benefits. Independent contractors are typically not eligible. The good news is that the employer does not get to decide who is an employee or an independent contractor. The work relationship is determined by a variety of factors. The main factor is whether the employer controls the work performance of the worker or if the worker controls how he/she does their job. Some of the additional factors that determine whether a worker is an employee or not are who provides the tools to do the job, who controls the hours of performance, and how the worker is paid.
Employers with only one or two employees may not be required to carry workers’ compensation insurance. Larger workers normally must have workers’ compensation insurance for each of their employees. As with most laws, there are some exceptions.
No. Workers’ compensation in both North Carolina and Virginia is a compromise. The employee only must show that an accident happened at work or that an illness is due to unique workplace conditions. The employee does not even need to show the employer failed to follow normal business safety standards. The trade-off is that the employee cannot make a claim for “pain and suffering” damages. Also, workers generally only get 2/3rds of their average weekly wages during the time they can’t work – and not the full 100%. There are also caps on how much an injured or ill worker can receive, typically up to 500 weeks.
There are a few exceptions. In Virginia, employers may challenge the right of a worker to demand work injury benefits if the worker intentionally caused his or injures – such as through getting into a fight with a coworker or getting into an accident while intoxicated. In North Carolina, any such showing will reduce the recovery by 10%.
Also, in North Carolina, there was once an exception if the employer could be found to be guilty of intentional misconduct that caused the accident. The misconduct has been interpreted as meaning that the employer must have been substantially certain that the conduct that the employee was ordered to engage in would result in injury or death. In those circumstances, there was once some possibility that the employer in North Carolina could be sued directly. This was known as a Woodson claim, named after the poor gentlemen who was ordered to his death by his employer, straight into a ditch the employer knew was about to collapse.
Unfortunately, in more recent times, it has been widely recognized that the North Carolina Court of Appeals has essentially eliminated any possibility that one of these Woodson claims will ever see the light of day.
Injured workers typically receive two types of benefits:
Patients who are injured at work also usually treat with chiropractors, physical therapists, vocational therapists, and other health care providers.
These medical care providers should submit their bills to the employer’s workers compensation insurance carrier. The insurance carrier has a duty to pay these medical bills if they are reasonable, medically necessary, and related to the injury.
Other types of care that the insurance company should cover include the cost of medications and medical devices.
Workers who have a partial temporary disability and who can return to work receive at a lower-paying job receive 2/3rds of the wages they lose by accepting the lower paying job. This is called temporary partial disability (TPD).
Workers who are no longer receiving TTD and have a permanent disability in a specific body part may be entitled to pay based on the type of disability they have in that body part. This is referred to as permanent partial impairment (PPI). Payments are made according to a percentage disability rating and a scale of weeks set forth via statute, depending on the type of disability (such as hearing loss or the loss of use of a hands, feet, arms or legs) and the degree of impairment.
Injured and ill workers may also be entitled to vocational rehabilitation; however, although this is technically a benefit it is usually not helpful to an injured workers case. It is typically utilized by the workers compensation insurance company to “trip up” the injured worker or apply pressure to settle the claim, or reduce the liability of the workers comp insurance company by finding a job-ANY job—for the injured worker. Voc Rehab is typically employed with workers who aren’t expected to return to the same type of job they did before the injury.
Normally, in Virginia, the employer will have a panel of three doctors for each type of injury or illness – starting with a list of family care doctors. Employees must choose one of the physicians on the list of doctors – for their type of injury or illness. If a referral is needed to a specialist such as an Orthopedic or Neurosurgeon, then additional panels must be provided by the workers compensation insurance company.
In North Carolina, unfortunately, there are no panels, rather, the insurance company usually chooses a treating physician.
If there is a good reason, then employees can seek permission from the Commission to see a doctor of their own choosing. A good reason may be that it is clear the doctor isn’t helping the injured worker get better he or she is still in pain – and still can’t work. Experienced North Carolina and Virginia work injury lawyers often have working relationships with a variety of physicians. The lawyer may be able to seek approval to switch to one of these doctors – or to an independent new doctor.
In Virginia, this process is not easy. It really depends whether the authorized treating doctor has indicated that he or she no longer wants to see the injured worker. If the authorized treating doctor has not released the injured worker from care, for instance by saying “prn” in their office notes which means “patient may return as needed,” then it may be more difficult to seek a switch.
Although there is no means to obtain a “second opinion” of a doctor formally through the Workers Compensation Commission by injured workers in Virginia, workers are free at any time to seek alternative care at their own cost.
In North Carolina, there does exist a process to obtain an Independent Medical Examination—at the expense of the employer.
Lawyer Joe Miller has helped thousands of injured and ill employees get their full workers’ compensation benefits. He represents workers in North Carolina and Virginia. He’ll answer your questions and explain the workers’ compensation process. He’ll work aggressively to help you get all the benefits you deserve. To review your case now, call attorney Joe Miller at 1-(888) 667-8295 or use my contact form to schedule an appointment.
Posted on Thursday, June 27th, 2019 at 10:21 am
Workers who can’t return to their old job may be entitled to vocational rehabilitation benefits. Vocational rehab benefits can include the cost of being retrained or to obtain additional education.
In most North Carolina workers compensation cases, injured and ill workers are compensated in two ways:
Some workers, however, are not able to return to their pre-injury job because of their injuries or work-related illness. Sometimes, the worker’s doctor will authorize work with restrictions, otherwise referred to as “light duty,” – but the employer won’t be able to accommodate the restrictions. Since the goal of workers’ compensation is to help the worker earn an income, North Carolina offers another option called vocational rehabilitation.
For example, often workers who work in construction or industry depend on being physically fit to do hard physical labor. If a worker severely injures his or her back, loses function in a hand, or loses an arm; the worker can no longer do these jobs. With proper education, though, the worker could be re-trained to work in a clerical or administrative job. The worker might be able to learn technical skills that could be useful to many companies in the same job sectors or different job sectors altogether.
Of course, the success of much of this depends on the age and current educational level of the injured worker. A 29-year-old worker is far more likely to be capable of re-training than a 59-year old laborer without a high school education. Usually, the injuries are more severe and pronounced in the older worker, and as they say, it is harder to teach an old dog new tricks.
Worker’s compensation includes services that are designed to help a worker obtain suitable employment. These services typically include:
Generally, the way it works is in accepted claims, when the worker reaches maximum medical improvement and is provided with permanent work restrictions by his or her doctor, if the employer is unable or unwilling to accommodate the injured workers’ restrictions, a vocational rehabilitation assessment will be ordered by the workers comp insurance company.
Although these services one would think are a benefit, usually, the carrier will avoid paying for items that might truly assist in improving the worker’s skills and their ability to get a new job, such as education from a Community College or a degree from one of North Carolina’s many great universities. When Vocational Rehabilitation was classed as medical treatment back in 2011, many thought this would indicate a change in the way Voc Rehab could be used in North Carolina.
Alas, this change has not come to be. This is because the true purpose behind most vocational rehabilitation situations is to stop benefits to the injured worker based on the injured worker’s failure to comply with the plan, or otherwise to apply pressure on the injured worker to settle his or her case as soon as possible. Often, the vocational counselor can be extremely annoying, sending seemingly endless streams of emails and calls and constantly hounding the injured worker to engage in job searches. This is by design.
Normally, an approved vocational rehab specialist must be approved to work on behalf of the injured worker. Vocational rehab specialists are generally paid for their services in the same way doctors paid. The specialist helps identify the workers’ abilities, skills, the type of new skills needed, and course selection. This is typically done in an initial assessment, which is usually attended by the injured workers’ attorney as well. There may be written testing to determine the skill level of the employee with regard to the worker’s math and/or language skills.
Subsequently, the vocational rehab specialist also assists monitors the worker’s success in applying for jobs and attending interviews. In some cases, this may include providing job leads to be followed up on by the injured worker, as well as scheduling actual job interviews.
Technically, vocational rehab specialists do not work for the employer – though the progress the worker is making will be reported to the employer and the injured worker. But they do work for the workers compensation insurance company and this needs to be understood.
If the vocational rehabilitation specialist is not helping the worker obtain suitable skills or suitable employment by, for instance, continually requiring the injured worker apply for jobs that are no longer available or which are clearly beyond the physical capability of the worker–the employee can seek to have a new vocational rehab specialist appointed.
Generally, the rehab specialist will begin by preparing a return-to-work plan. The return to work plan should review all possible job options including:
Workers who refuse to comply with a vocational rehab plan ordered by the North Carolina Industrial Commission may lose their compensation benefits until they do comply with the plan.
Most workers comply with new training requirements. They may object to unreasonable demands by the specialist – such as applying to jobs they have no chance of getting.
Experienced North Carolina workers’ compensation lawyers understand when it is likely that a vocational rehabilitation expert will be hired and how to prepare the injured worker in dealing with the often rigorous demands of vocational rehabilitation.
As with most laws, some exceptions may apply – some severely injured workers may not be required to learn a new trade or skill – because there’s no reason to expect they will be hired. In other words, if it would be futile for the injured worker to be required to engage in vocational rehabilitation, due to their level of impairment, lack of education, and age, then a motion may be made by the attorney to excuse the injured worker from having to participate in vocational rehabilitation.
The employee does not have to reach maximum medical improvement in order to be required to engage in vocational rehabilitation. Generally, employers or employees can ask for vocational rehabilitation if the worker hasn’t returned to work or if he or she is earning less than 75% of his/her average weekly wages and are receiving other approved benefits.
The vocational rehabilitation plan should be in writing and tailored to the individual worker’s needs.
Attorney Joe Miller fights for all injured workers. He has decades of experience working with vocational rehabilitation specialists. He understands when employers and insurance companies are truly interested in helping an employee get a new job and when the employer (or insurance company) is just trying to terminate a worker’s benefits or apply pressure to settle. To learn if you are likely to end up in vocational rehabilitation, call attorney Joe Miller at 1-(888) 667-8295 or use my contact form to make an appointment.
Posted on Tuesday, June 25th, 2019 at 2:05 pm
Attorney Joe Miller explains why you need an attorney if you are injured or hurt at work:
Read the full video transcription here.