Posted on Thursday, March 19th, 2020 at 2:24 pm
Virginia and North Carolina Workers Compensation Attorney Joe Miller here explains why with some possible exceptions, it is unlikely that you would be able to pursue a compensable claim based on your contraction of the COVID-19 or Coronavirus at work. The possible exception might be someone whose sole job is to treat patients who are known to be infected with the virus, or test people for infection with the Coronavirus. Even then, it would be challenging.
Posted on Tuesday, February 25th, 2020 at 9:55 am
In addition to the findings previously discussed, the Virginia Joint Legislative Audit and Review Commission also found the following:
In the area of firefighting and various types of cancer, JLARC reviewed a study of available scientific evidence examining the causal connection between firefighting and 10 different cancer presumptions. The study was done by epidemiologists at Johns Hopkins University’s Bloomberg School of Public Health. The study did find some mixed results. Still, it did find enough of a causal connection to “support a plausible connection between firefighting and the cancers currently included as presumptive diseases in the Code of Virginia.”
It also found plausible connections between firefighting and colon cancer, testicular cancer, and brain cancer – three cancer types that Virginia is considering adding to the state law. The causal connection that is the weakest (but still plausible) is between firefighting and colon cancer.
The reason it is unreasonably burdensome to document carcinogen exposure, according to researchers at John Hopkins University, is that is cost prohibitive and because of the inability of current technology to prove the exposure. “Additionally, requiring a firefighter to identify a single carcinogen that is known to cause his or her type of cancer appears counter to the purpose of the presumption, which is to relieve firefighters of the need to prove that their occupation caused the disease.”
The JLARC raised the following concerns about the disability requirement:
There are times when a “firefighter’s cancer was not presumed to be caused by work simply because the worker did not have a period of wage loss. Whether a firefighter loses wages because of his or her disease does not appear to be relevant to whether his or her employment caused the disease.
The JLARC found that the requirement that firefighters work 12 or more years under the state cancer presumption statute was not clear and “does not align with research on cancer among firefighters.” Researchers at John Hopkins University found cases were exposure for less than 12 years could create an increased caner risk. The 12-year requirement is also longer than that for many other states.
The risk of heart disease increases the more years a worker does his/her job. There is credible scientific evidence that the risk of heart disease among public safety workers does increase as the years of service increase. Other states have a years of service requirement that public workers must meet in order to benefit from a cardiovascular disease presumption. Virginia dose not have a statutory requirement for years of service. JLARC states that a specific years of service requirement would:
The JLARC doesn’t currently recommend an alternative benefit program for public workers such as firefighters – which is what some states, since 2017, have done to help public safety workers get the wage benefits, medical payments, and rehabilitation expenses they deserve.
JLARC believes that improvements to the current Virginia workers’ compensation system would be beneficial. The report includes numerous recommendations for how to make the state workers’ compensation system address its shortcomings. JLARC recommends implementing these recommendation before considering any broader changes.
These recommendations include legislative action, executive action, and implement specific policy options.
As a firm who represents injured workers, including first responders, we sincerely hope that the legislature in Richmond sees fit to make the recommended changes so that police and firefighters are not prevented from making claims for heart disease, cancer and other occupational diseases set forth in the law.
Virginia workers’ compensation lawyer Joe Miller Esq. helps workers who suffer an injury due to a workplace accident. He also fights for workers who develop an occupational disease due to their workplace environment. He fights to obtain payments for long-term medical care when needed due to injuries or a disease. He also seeks to classify a worker who qualifies as having a permanent disability. He demands payment for all allowable lost wages (the percentage authorized by statute). To discuss how to prove your claim and how to verify your medical needs and wage rights, please call attorney Joe Miller, at 888-667-8295. or fill out my online contact form to schedule an appointment.
Posted on Monday, February 24th, 2020 at 9:53 am
The Joint Legislative Audit and Review Commission (JLARC) is a Virginia organization that provides oversight to numerous state agencies including the Virginia Workers’ Compensation agency. The JLARC is specifically authorized to by the Virginia Code to conduct reviews and oversight.
In December 2018, JLARC began a review of the workers’ compensation system for the state and specifically reviewed how disease presumptions are handled. The main goals of the review were to:
Workers’ compensation is designed to help workers who suffer injuries while doing their job or suffer an occupational illness because of their work environment. Employees who can’t work due a workplace injury or an occupational illness are generally entitled to three benefits:
Often a key to winning an occupational illness or disease case is determining whether the worker’s illness was due to workplace conditions and not conditions that he or she may have been exposed to outside of the hazardous work environment. Virginia law assumes that some jobs are so inherently dangerous that there is a presumption that if the worker did a certain job, that specific illnesses such as cancer are presumed to be the consequence of the job if they end up with that disease. A presumption that there is a relationship between a disease and a job makes it easier for the employee to be awarded his/her workers’ compensation benefits. Workers can still prove their illness was job-related if there is no presumption – but more evidence is required. Employers can rebut presumptions if they have compelling evidence that the workplace environment did not cause the occupational illness.
The oversight review made the following findings:
JLARC noted that delays do happen while the insurers for the employers are reviewing whether the worker’s claim is compensable. For example, the JLARC stated that, for firefighters, insurance company delays in review their claims, was the second leading challenge. Virginia is one of only several states that doesn’t have a statutory frame for when insurers must make a decision about compensability.
This is one of our “pet peeves” as well here at The Work Injury Center. We are constantly receiving calls from potential clients who have essentially ruined their own cases due to this lack of information available to injured workers in the Commonwealth relating to Workers Compensation.
It is very frustrating to us when we have to reject what might have been a perfectly compensable claim because the injured worker took certain unadvisable steps before checking with a worker’s compensation attorney or seeking out information on the subject.
This is why we are constantly uploading new videos and producing articles such as this one to attempt to educate the public as much as possible about the Workers Compensation Law and process. It is our attempt to make up for the lack of information provided by the Virginia Workers Compensation Commission, as cited by JLARC.
As a practical matter, employees should consult with experienced workers compensation Virginia lawyers to understand their rights, to process their claims correctly, and to get the help they need with each phase of the workers’ compensation process.
Again, we strongly encourage anyone with any questions relating to workers compensation to also explore our website. We also have a wealth of videos both on our website as well as on our YouTube Channel relating to many, many issues facing injured workers. I do my best to “break it down” for you. If you’ve been hurt in an accident, we urge you to arm yourself with the extensive knowledge that we have made available to you.
JLARC’s report stated that more than 200 firefighters who had a job-related injury or illness were not aware that they had the basic right to contest an insurance company denial of their claim to the Virginia Workers’ Compensation Commission. The remedy for that is to make sure you file a claim and get to a Hearing. Many firefighters also stated that they thought reporting their diagnosis of heart disease or cancer to their employer was all that was required – when they had to take the additional step of filing a formal claim with VWC. The failure to file the claim can result in a full denial of benefits if a timely claim isn’t filed.
We see this as one of the most common misconceptions when folks call our office about a work injury. The most common statement is “I’m pretty sure my employer filed my claim for me.”
We cannot repeat this enough: There is no such thing as your employer filing your claim for you. The ONLY way to protect your rights is to file a CLAIM FORM (previously called a Claim for Benefits) with the Virginia Workers Compensation Commission within two years of the date of your work accident.
Virginia work injury attorney Joe Miller Esq. has been helping injured workers get the recoveries they deserve for more than 30 years. He’s helped thousands of workers in both the private and public sectors get strong results. He’ll guide you through process, help your file your claim, contest all efforts by the insurance company to deny or reduce your claim, and negotiate fair settlements when possible. To speak with Joe Miller, Esq., an experienced Virginia workers’ compensation lawyer, call me at 888-667-8295. or fill out my online contact form.
Posted on Wednesday, January 8th, 2020 at 9:52 am
OCCUPATIONAL DISEASE: PRESUMPTIONS FOR FIREFIGHTERS, POLICE, AND OTHER FIRST RESPONDERS
Normally, injuries and accidents that occur under Virginia Workers Compensation must consist of a specific traumatic event that caused a sudden anatomical change in the body to the injured worker; however, there are a whole class of cases that do not follow that approach and these are cases which involve an occupational disease. Sometimes these can be hard to prove, but the Virginia legislature has made it easier for police, firefighters, sheriffs, and other first responders and public law enforcement officers to prove occupational disease claims.
Without getting into all the specifics of proving an occupational disease, which is covered in other articles, suffice it to say that an occupational disease means a disease arising out of, and in the course of employment, but not including an ordinary disease of life to which the public is equally exposed.
What this definition means is the oftentimes, even though someone may be suffering from a disease that was directly caused by exposure for instance, to hazardous chemicals on their job, if it is the kind of disease not specifically recognized as arising directly out of the employment, and therefore an ordinary disease that the public may also get, such as a form of cancer, then the disease is not going to be recognized as an occupational disease. It will be considered an ordinary disease of life and the standards of proof for that are much higher than for a regular occupational disease.
The good news is that the Virginia legislature carved out an exception to this rule for police, firefighters, sheriffs, and other first responders and public law enforcement officers.
What this law says is that if you are a firefighter, police officer, or other first responder, then for certain diseases, such as respiratory diseases, hypertension or heart diseases, and certain types of cancers, it is to be presumed that the disease in question is in fact an occupational disease suffered in the line of duty.
Now this presumption can be overcome by the defense if, for instance, they can prove that the disease came about for exposure to something completely unrelated to work, and that the first responder was not in a position to be exposed to anything that might give rise to the disease in question.
Unfortunately, insofar as firefighters are concerned, the law as it stands contains some barriers and defects that make it hard to prove some occupational diseases.
The statute lists a number of presumptions for cancers that firefighters and other first responders are entitled to and they are for the cancers of leukemia, pancreatic, prostate, rectal, throat, ovarian, or breast cancer. The problem is that the law as it stands now also requires that the International Agency for Research on Cancer (IARC) recite in their listings that whatever the injured worker was exposed or came into contact with to during their job actually causes, or may cause the type of cancer the injured worker is suffering from. They also require that the first responder with one of these types of cancer have completed 12 years of continuous service.
The good news is that according to the case law, the injured worker need only prove one instance of exposure to the toxic chemical during his or her career that may cause cancer as identified by IARC.
The bad news is that at least one form of cancer on the list specifically has no known cause and that is pancreatic cancer.
Pancreatic cancer is one of the few cancers where medical science currently simply has no idea as to the cause. Apparently, the only thing that might contribute to it is cigarette smoke.
Because of this, many agree that the law as currently written, in this regard, for lack of a better word, is ridiculous. The current law in Virginia actually says that pancreatic cancer is one of the presumptive types of cancer that is considered to be contracted in the line of duty, but at the same time, the law also says you have to prove there was exposure to something that might cause it, and as we just said, nothing is known to do that except possibly cigarette smoke. So basically, the Legislature has drafted a law that—at least with respect to pancreatic cancer—is completely useless.
Moreover, a State Review Board has also noted that the law is lacking as it currently stands. The Joint Legislative Review Commission (JLARC) Audit Report of the Virginia Workers Compensation Commission that was released on Monday, December 17, 2019 says on page 3, in the headline: “Requirements to establish cancer presumptions are unreasonably burdensome and not supported by science.”
The JLARC specifically talks about firefighter benefits and how many claims are denied because the firefighter failed to prove proper exposure to the carcinogen that caused his or her type of cancer. The JLARC then suggests that all an injured firefighter should have to prove is that he or she fought fires and was exposed to smoke. They say that should be sufficient, given the toxic soup of chemicals that any scientist and industrial hygienist knows is released by any house or industrial fire. I certainly could not agree more.
We rely on our first responders to protect us. They put their lives on the line for us every day. Can we not make it as easy as possible for them to make a claim in the event they suffer because of the years of dedicated service to this cause?
Hopefully, plans are afoot in Richmond to change these laws so this never happens to any firefighters or other first responders who in the future develop cancer or any of the other diseases given a presumption in the law.
In the meantime, if you have been advised that you are suffering from an occupational disease, please do not wait to contact a worker’s compensation lawyer to assist you. You only have two years from the date that the diagnosis was first communicated to you by a physician to file a claim form with the Virginia Workers Compensation Commission.
If you have been exposed to toxic chemicals in your line of work, and your doctor supports that your disease came from that exposure, and you’re a member of a Union, know that your Union should be able to steer you in the direction of an expert such as an industrial hygienist, or other such expert, who can assist in proving your exposure to the relevant chemicals in your claim. You may very well need his or her testimony in order to win.
Joe Miller has been representing victims of on-the-job injuries and occupational disease for over 30 years. If you or a loved one has been injured on the job or suffered an occupational disease, please do not hesitate to call us toll free at 888-667-8295. or complete our online contact form
Posted on Tuesday, March 27th, 2018 at 4:48 pm
Construction work is extremely dangerous. Some of the reasons are well-known. Some reasons change from site to site. Employees who suffer a disease due to constant exposure to chemical toxins and other hazards have the right to bring a North Carolina or Virginia worker’s compensation claim – depending on where they work. An experienced work injury lawyer can explain the exact requirements. One disease that can change or even end a worker’s life is exposure to silica dust.
Silica, also known as quartz, is a common mineral found at construction and industrial sites. It can be found in the soil, concrete, rocks, sand, granite, and landscaping items. Silica dust is typically created through drilling, grinding, or cutting. Silica is also present in cement, mortar, and brick. The dust can spread through mixing cement, cutting stone, pressurized air-blowing, using a jack-hammer, working with power-chipping tools, demolition work, and other means.
The particles can be 100 times more minute than sand. The dust, which is almost impossible to see, can easily enter a worker’s lungs. Damage may include respiratory disorders, lung cancer, COPD (chronic obstructive pulmonary diseases) and kidney failure. Exposure to enough silica can cause silicosis, which can result in lesions, inflammation, and scar tissue buildup in the lungs. In the most serious cases, exposure to silica dust can be deadly.
Often, diseases caused by exposure to silica take years to appear. In most cases, these diseases occur after years of exposure to respirable crystalline silica. Many workers don’t even realize that they are breathing it or that is has landed on their skin, clothing, footwear, and hands.
Workers who are affected by silica exposure include foundry workers, stoneworkers, miners, grinders, bricklayers, and sandblasters.
According to OSHA (the Occupational Safety and Health Administration), about two million people have been exposed to respirable crystalline silica. OSHA requires that employers take protective measures to limit exposure to this unhealthy material. Employers should inform their employees about the risks of silica if they know or have reason to know that silica levels are above specific minimum levels. Employers should work with professionals who can determine how much silica is present by taking samples and conducting tests.
Employers should use dust controls and safe work methods to protect workers. If controls and safety methods aren’t sufficient, the employer should provide respirators to their workers.
OSHA also requires that employers:
Unlike workplace accidents, occupational illnesses normally develop over a long period of time. Many workers don’t realize they’ve been exposed until they start to have serious health issues. Generally, a worker is eligible for worker’s compensation benefits in North Carolina or Virginia based on an occupational disease if:
Some disease such as lung cancer can be caused by other causes. Smoking is a common reason may people get lung cancer. That the worker could have gotten the disease from another source does not automatically mean his/her claim will be denied. Workers who suffer lung disease through exposure to substances that are known to cause the disease can still recover worker’s compensation benefits. Defense lawyers may, though, try to blame your medical problems on other causes, such as smoking, but only if you actually smoked.
Workers who suffer a work-related occupational illness that prevents them from working are entitled to 2/3rds of the average weekly wage while they can’t work or average weekly wages up to 500 weeks as well as lifetime medical benefits in Virginia.
In North Carolina, a worker with confirmed silicosis or asbestos is assumed to be disabled for the first 104 weeks. Whether the employee will be entitled to those benefits beyond 104 weeks depends on whether the Industrial Commission determines, or the Parties agree, that the worker is, indeed, disabled, but in no case can the worker receive more than a total of 300 weeks or workers comp checks for the silicosis.
Exposed workers are also entitled to have their reasonable and related medical bills paid by workers comp insurance even if they are still working. Families are entitled to death benefits if a worker dies due to an occupational illness or disease.
Statute of Limitations in Virginia for Silicosis. The most important thing to be aware of regarding silicosis are the time limitations for filing a claim. In Virginia, as soon as you become aware of your diagnosis of silicosis, you have TWO YEARS to file a claim. This time limit applies whether the diagnosis preventing you from working or whether you had any symptoms whatsoever.
In addition to that time limit there is another one in Virginia: If it has been many years after you retired that you find out about your diagnosis, you are unfortunately out of luck. You must file your claim within FIVE YEARS of your “last injurious exposure” to silica dust.
Statute of Limitations in North Carolina for Silicosis. North Carolina also requires employees to file within two years of being advised of a diagnosis of silicosis; however, to recover for disability or death, there must have been a minimum of two years of exposure to the dust in North Carolina, unless that exposure was more than 10 years before any other, additional exposure elsewhere.
North Carolina has also instituted an extensive system to make it easier for employees who believe they are being exposed to silicosis or asbestos to undergo examinations by a physician from an advisory medical committee set up by the Industrial Commission, which examinations are to be paid for by the employer. These examinations can up to three times within two years of the initial claim of silicosis or asbestosis, unless the parties agree on compensation.
Some common examples of respiratory/lung occupational illness, in addition to silicosis include:
The aforementioned COPD is also a well-known work-related disease that causes bronchitis, emphysema, and death.
Some of the deadly and life-changing toxins and chemicals that cause occupational illnesses of different types include:
The chemical manganese can also cause serious health problems. Welders are likely to be exposed to manganese.
Attorney Joe Miller Esq. has more than 25 years-experience fight for workers who were injured on the job or who suffered an occupational illness. He’s helped thousands of employees get justice. To learn if you have a case and to get the strong recovery justice demands, please call his office at (888) 694-1671. You can also reach him through his contact form.