Hernia and Workers’ Compensation

Posted on Wednesday, December 9th, 2020 at 1:32 pm    

Hernias occur when a bodily organ pushes through your muscle or tissue. Muscles and tissues hold your organs in place. A common example is when a person’s intestines push through a weakening in the abdominal wall. Other common locations for hernias include the upper thigh, the groin, and the belly button. Generally, hernias don’t repair themselves with time. In severe cases, surgery may be required because the hernia can become life-threatening.

What are the different types of hernias?

According to the Cleveland Clinic, there are several types of hernias. These include:

Inguinal hernias. 

  • Inguinal hernia: “In men, the inguinal canal is a passageway for the spermatic cord and blood vessels leading to the testicles. In women, the inguinal canal contains the round ligament that gives support for the womb.” When an inguinal hernia occurs, part of the intestine or fatty tissue – pushes through the groin – at the top of the inner thigh. Men suffer from this disorder more than men.
  • Femoral hernia: This type of hernia, in which “fatty tissue or part of the intestine protrudes into the groin at the top of the inner thigh” affects women more than men.
  • Umbilical hernia: This type of hernia occurs near the belly button (navel) as the tissue or intestine pushes through the abdomen.
  • Hiatal (hiatus) hernia: Here, “part of the stomach pushes up into the chest cavity through an opening in the diaphragm (the horizontal sheet of muscle that separates the chest from the abdomen).”
  • Incisional hernia: This type of hernia is normally due to a surgery – where tissue pushes through the site of an abdominal scar “from a remote abdominal or pelvic operation.”

The strong majority of hernias are inguinal or femoral.

Other types of hernias include:

  • Epigastric hernia
  • Spigelian hernia
  • Diaphragmatic hernia

Why do hernias occur?

Some hernias are due to conditions that have existed since birth. Hernias are often caused to do aging. Repeated strains on the abdominal and groin area can also cause a hernia. These strains can be due to physical exertion, frequent coughing, constipation, obesity, and pregnancy. Surgeries can also cause hernias. 

What are the symptoms of a hernia?

According to the Cleveland Clinic, common symptoms include a noticeable lump or bulge in the groin or abdomen – that can be pushed back in. Activities such as laughing, coughing, bowel movement strains, crying, or physical activity can make the hernia noticeable. Other symptoms include:

  • Pain while lifting
  • An increase in the size of the bulge
  • Pain at the edge of the bulge
  • “A sense of feeling full or signs of bowel obstruction.”

Can hernias be work-related?

Yes. Hernias may be due to a specific incident or to cumulative trauma. A lifting accident can cause the muscle of the abdominal wall to tear. Repetitive lifting over time can also cause a hernia; however, it must be remembered that generally, a repetitive trauma that occurs as a result of lifting over time is generally held to be non-compensable. Meaning, that you must prove the hernia came from a specific, identifiable incident that occurred at a specific moment in time, for instance, attempting to lift an unusually heavy object. Hernias, as discussed, may be due to surgeries – and the surgeries may be necessitated because of a workplace accident that causes abdominal or groin injuries.

Hernias may be secondary to other types of injuries or conditions which may render the hernia non-compensable. For example:

  • Coughing and sneezing may be due to occupational illnesses or due to exposure to dust and chemicals; however, this would likely not be a compensable claim, or at least be extremely difficult to prove.
  • Constipation. People who have orthopedic surgeries such as surgery on their back may need to take medications which, in turn, can cause constipation. The straining during constipation can cause a hernia. Again, this would be very hard to prove, since the constipation is generally something the public is equally exposed to and not a condition of work; 
  • Gaining weight. Injuries such as back injuries can cause inactivity which can cause weight gain – which can then cause a hernia; however, this would also likely be very difficult to prove, since weight gain is also a result of other factors such as overeating. 

How are hernias managed?

You must report the hernia condition to your employer. Once you do, the employer will refer you to a physician (or give you a list of qualifying doctors in Virginia) who will examine you to confirm the hernia. Often a hands-on physical examination can confirm the hernia. If the physician recommends surgery, then you will be referred to a general surgeon. Early intervention for a hernia is strongly advisable.

The type of surgery required depends on your age and the type of hernia you have. The common types of hernia surgery include:

  • Open surgery. In this procedure, the surgeon makes a cut into the body at the site of the hernia. The tissue that is protruding is “set back in place and the weakened muscle wall is stitched back together.” Some hernias use mesh implants to give more support.
  • Laparoscopic surgery. The repairs are generally the same as for an open surgery hernia operation – but “instead of a cut to the outside of the abdomen or groin, tiny incisions are made to allow for the insertion of surgical tools to complete the procedure.”
  • Robotic hernia repair. This hernia operation “uses a laparoscope, and is performed with small incisions.” In a robotic surgery procedure, the surgeon handles the surgical instruments from a console. “While robotic surgery can be used for some smaller hernias, or weak areas, it can now also be used to reconstruct the abdominal wall.”

Hernia surgeries are a fairly common procedure. Some hernias do reoccur. If the original hernia was work-related, then the subsequent hernia may also be work-related.

Other treatments may include losing weight, changes in lifestyle, a better diet, and medications.

What happens if the hernia isn’t treated?

Failure to treat a hernia can cause:

  • Obstruction (incarceration): “Part of the intestine becomes stuck in the inguinal canal, causing nausea, vomiting, stomach pain, and a painful lump in the groin.”
  • Strangulation: “Part of the intestine is trapped in a way that cuts off its blood supply. In such cases, emergency surgery (within hours of occurring) is necessary to prevent tissue death.” I am personally aware of at least one person who failed to get appropriate treatment in time and died as a result of this type of hernia. Within 36 hours after he sustained this hernia, almost the entirety of his intestinal tract was necrotic, i.e. dead tissue due to the loss of blood flow to those tissues. There was nothing the surgeons could do. He died shortly thereafter.  Take this type of hernia VERY SERIOUSLY. 

 If you suffer a work-related hernia, then you should have the right to:

  • Payment for all reasonable and necessary medical expenses including the cost of a hernia surgery
  • Lost income based on your temporary work disability at 2/3rds of your average weekly wage so long as your doctor opines that you are unable to work– until you have any necessary surgeries (including time to recover). Depending on the outcome of the surgery, in some cases, you may also be entitled to permanent disability benefits.

Talk to a premier North Carolina and Virginia workers’ compensation lawyer today

North Carolina and Virginia workers’ compensation attorney Joe Miller Esq. has helped thousands of workers get the workers’ compensation benefits they deserve. He’s been fighting for injured workers for more than 31 years. He’ll work with your doctors to help verify a hernia or any other injury is work-related. To speak with an experienced North Carolina and Virginia workers’ compensation attorney, call lawyer Joe Miller, Esq., at 888-667-8295. or complete my online contact form to make an appointment. You can use complete our New Electronic Case Review. It’s a new way we’re offering workers to contact us remotely, particularly after business hours.

Workers’ Compensation and Cold Weather

Posted on Tuesday, December 8th, 2020 at 1:32 pm    

We’ve written before about some of the types of accidents workers have when the weather gets cold – Worker’s Compensation and Winter Safety | Joe Miller Law, Ltd. (joemillerinjurylaw.com). Some of the major types of cold-weather accidents and injuries for workers include. Probably the most common type of injury is a slip and fall due to ice, melting water, and slippery surfaces. Cold weather cause potholes and pavement cracks which can also make falls likely.

Common cold weather injuries include frostbite, hypothermia, and back injuries. People who work outside such as construction workers, agricultural workers, and roadway maintenance crews are most at risk of suffering from the cold. 

Unfortunately, the notion of a worker’s compensation claim for injury such as frostbite or hypothermia is not as easy as a normal type of “accident” such as a slip or fall. This is because usually, frostbite and injuries like it occur over a span of time, sometimes days, and not in a particular moment. Generally, with very few exceptions, workers compensation law in both Virginia and North Carolina do not permit recovery for repetitive trauma injuries. In other words, if you cannot pin down your injury to a very specific period of time as well as conditions and assignments, you will have no case. 

A review of the case law tends to indicate that in, for instance, a frostbite situation, if the frostbite is brought on over several days or months in the cold weather, it may be difficult to bring a workers’ compensation claim for an injury by accident. If, however, the frostbite occurs as a result of a very limited, say, four or five hour uninterrupted exposure to extreme cold due to a set of tasks that the injured worker is required to perform, that may satisfy the requirement that the injury occur during a specific, identifiable period of time. Of course, this must be backed up with a qualified physician’s opinion. 

All that being said, there may be another option that is revealed by a review of the case law. Frostbite, hypothermia and other such cold-induced conditions could also be considered to be an occupational disease. To bring such a case, one would have to show, through clear and convincing evidence, that the unique conditions of work brought about the injury. Again, one needs to be prepared with a very clear physicians’ opinion that the specific injuries were a result of exposure to extreme cold at work. 

Best cold-weather practices for employers and employees

Many cold weather injuries are preventable with proper planning, training, and safety protocols. Some of these common strategies include:

  • Being prepared for cleaning snow and ice when it occurs
  • Having backup generators, heaters, and other equipment so workers can do their jobs and stay warm when the temperature drops
  • Having plans for stopping work when it gets too windy. For example, ladders and scaffolds are especially dangerous when the winds are too high.
  • Having the proper clothing and work gear for workers so they can work outside if it’s too cold. This includes protective equipment so that cold and rain doesn’t get in the worker’s eyes. Proper clothing should also include footwear to provide better traction and to prevent the worker’s feet and toes from getting too cold. Workers should have gloves, hats, thermal wear, and other protective clothing.
  • Hiring and using maintenance crews to inspect outside areas and entrances to inside areas for wet, cold, and slippery surfaces. Until the repairs can be done, the employer should place warning signs around all the dangerous sites.
  • Being vigilant about salting and de-icing any means of ingress and egress into work buildings. 

What steps should a worker take if a cold-related injury is suspected?

Workers have two priorities if a cold-weather injury such as frostbite or hypothermia is suspected: The first is to get immediate help. If the employer has in-house health care, they can help there. Otherwise, it’s advisable to call 911 or contact your emergency room. Workers may be in shock. The worker may not be aware of the extent of their injuries. Emergency medical personnel should be able to advise the worker and a supervisor whether the worker can be moved safely to the hospital or if emergency on-site care is needed.

The second priority is that workers who are physically able to need to notify their employer (usually a supervisor or manager) that they can’t work anymore due to the cold. If you can’t tell your employer immediately, you should inform your employer as soon as possible after you receive emergency medical treatment.

As mentioned above, unless one suffered an accident such as slipping on ice, workers who suffer injuries due to cold weather conditions such as frostbite or hypothermia may find it more difficult to prove their claim. If they cannot prove that the frostbite or hypothermia was a result of a very defined and specific period of time of no more than a few hours of exposure to extreme cold, the only other option would be to attempt to prove their case through the means of occupational disease, which is more difficult. 

Assuming the injured worker could prove his or her claim, the worker would have the right to file for workers’ compensation. Many injuries can take weeks or months to heal. During the time period where the worker is unable to work, the worker is entitled to:

  • Payment of all reasonable and necessary medical expenses
  • A percentage (about 2/3rds) of the workers pre-accident average weekly wages for the time they can’t do their job

General winter tips for workers

Workers and employers should also advise and prepare their workers for cold weather by:

  • Making sure they stay properly hydrated. Hydration can help manage dry skin and the itching and irritation dry skin causes
  • Making sure to focus on keeping the extremities warm – ears, finger, and toes
  • Eating plenty of fruits and vegetables to balance all Holiday carbohydrate treats
  • Getting some sun and fresh air when possible. Even before the pandemic, it was and still is important to spend some side outside
  • Keeping in shape. Get plenty of exercise.
  • Minimizing contact. As we all know now, shaking hands and close contact spreads germs and the flu. 
  • Washing your hands regularly
  • Knowing the signs of frostbite and hypothermia

Some ways to keep warm (and things to avoid) include:

  • Making sure your smoke detectors are working
  • Being extra careful when using candles
  • Turning off any portable heat-soured device when you go to sleep and when you leave home

A few winter driving safety tips

Many workers such as truck workers and delivery workers are entitled to workers’ compensation benefits if they are injured as a result of an accident while making deliveries. Salespeople and other workers may be entitled to work injury benefits too – if they have a vehicle accident AND if the accident occurs during the scope of their employment. With some exceptions, commuting back and forth to work is not considered within the scope of employment.

A few common safety tips for cold weather driving include:

  • Keeping longer distances between you and other drivers especially the driver in front of you
  • Being prepared to leave the road if the snow, sleet, hail, wind, or rain gets too intense to make driving safe
  • Allowing for much longer stopping distances
  • Allowing for more time to achieve your tasks
  • Having weather-related tools in your vehicle such as shovels and salt to help melt the ice
  • Making extra sure your windshield wipers work, your mirrors are clear, and your window defrosters work
  • Making extra sure your headlights are in good working order

According to Business Insurance:

  • Businesses may consider less formal dress codes – so people are encouraged to wear boots and stay warm.
  • Installing signs to warn people of cold-weather dangers
  • Making sure to inspect the property more often for uneven or slippery surfaces
  • Having more dry mats for people to wipe their feet

“Construction and utility, postal carriers, delivery personnel and employees in other similar positions may be negatively affected by improper protective clothing and training in the bitter cold, which could lead to hypothermia and/or frostbite, noted Ms. Roth.”

Employers who fail to take necessary precautions may be subject to OSHA violations.

Speak with an experienced North Carolina and Virginia workers’ compensation lawyer today

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. understands the many reasons why workplace accidents occur. It is not necessary to prove your employer was at fault in order to receive workers’ compensation benefits. The focus on considering safety measures in cold weather or any weather is to try to avoid the accident from happening. For help with any work injury claim, contact a seasoned North Carolina and Virginia workers’ compensation attorney. You can reach attorney Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to schedule an appointment. You can use complete our New Electronic Case Review. It’s a new way we’re offering workers to contact us remotely, particularly if they are awake after normal business hours. 

CDC Recommendations for Hearing Protection During Your Lifetime

Posted on Monday, November 9th, 2020 at 10:39 am    

Several doctors published a report on the website of the Centers for Disease Control and Prevention (CDC) in 2018 explaining how hearing affects workers during their lifetime.

Across the globe, one in three people have a measurable loss of hearing. “1.1 billion young persons are at risk for hearing loss attributable to noise exposure.” Some of the occupations that place people at risk of hearing loss including manufacturing, construction, and mining. “Loud noises can cause permanent hearing loss through metabolic exhaustion or mechanical destruction of the sensory cells within the cochlea.”

Whether loss of hearing constitutes a disability is based on the worker’s communications needs and ability to perform his/her job tasks. Workers such as police and air traffic control workers need high and middle level frequencies to do their hearing-critical jobs.

Occupational Noise-Induced Hearing Loss

“A recent analysis of 2011–2012 National Health and Nutrition Examination Survey (NHANES) data estimates that approximately 14% of U.S. adults aged 20–69 years (27.7 million persons) have hearing loss. After adjustments for age and sex, hearing impairment was nearly twice as prevalent in men as in women; age, sex, ethnicity, and firearm use were all important risk factors for hearing loss. “

About 22 million workers are exposed to dangerous noise levels at work according to the CDC’s National Institute for Occupational Safety and Health (NIOSH). The prevalence of hearing loss can be as high as 25% of the workforce depending on the job types. Some sectors such as forestry, agriculture, warehousing, transportation, fishing, hunting, and utility work seem to have benefited from hearing protection where the risk decreased according to comparing studies from 2006-2010 to studies for 1986-1990.

Workers such as firearm and aircraft workers can be exposed to as much as 140 decibels above pressure level (dB SPL). They require noise reduction devices of 30-50 dB. Even though there are occupational guidelines for hearing protection, many workers suffer hearing loss because their earmuffs and earplugs don’t fit properly.

Nonoccupational Noise-Induced Hearing Loss

Insurance companies for the employers may argue that a workers hearing loss is due to non-occupational causes. Recreational hunting, shooting, personal music players, loud noises at concerts, woodworking, and motorsports are known to have high-risk noise levels. 

“Persons with normal hearing can detect sounds equally soft at all frequencies. When hearing is damaged by noise, the hearing test will show a loss of acuity in a narrow range of middle to high frequencies (3–6 kHz) with better hearing at both lower and higher frequencies. Often, the earliest sign is a notched configuration in the audiogram.”

Many workers and people with hearing loss due to non-work causes actually think their hearing is excellent or good – which means they’re not aware of their hearing loss. Sadly, while much hearing loss is preventable, many workers and nonworkers fail to take preventive steps. The report states that “70% of persons exposed to loud noise in the past 12 months had seldom or never worn hearing protection.”

Worldwide hearing loss statistics

According to the World Health Organization (WHO), about 360 million people have a disabling (unable to work) hearing loss. About 328 million adults are affected. 56% of males are affected. “It is estimated that approximately 320 million persons aged >65 years will have hearing loss by 2030 and approximately 500 million by 2050.”

American prevention efforts

The CDC report states that hearing loss programs should go beyond traditional services – such as diagnosis, treatment, and research.” The initiatives should also “focus on epidemiologic surveillance, health promotion, and disease prevention.” This type of approach can lead to better prevention strategies and better ways to manage hearing loss.

One such program is called: Dangerous Decibels. This program has helped people with both hearing loss and tinnitus (ringing in the ears). The program’s three main strategies are:

  • Turn it down
  • Walk away
  • Protect your ears

The program, which began for just youths, now works for adults and members of the military. A study of children in the US, New Zealand, and Brazil affirmed the effectiveness of the program. The program is used in all 50 states, the four US territories, and 41 nations. The program includes online games such as Jolene – a program which measures “music-listening sound levels and aids in educational outreach for hearing health.

The CDC has its own hearing loss and communication products. “NIOSH promotes the Buy Quiet and Quiet-by-Design programs, designed for employers to take an inventory of their potentially harmful loud tools and replace them with quieter ones.” NIOSH also developed the Safe-in-Sound Excellence in Hearing Loss Prevention and Innovation Award which recognizes individuals and companies for successful hearing loss programs. In 2015 United Technologies was one of the companies recognized – for reducing the rate of employee exposure to hazardous noise by 80%.

“NIOSH recommends an 85-dB limit for an average daily 8-hour exposure and a 3-dB exchange rate, which means that each increase of 3 dB in exposure level reduces the recommended exposure time by half. Thus, an 88-dB exposure limit is recommended for up to 4 hours and a 91-dB exposure limit for 2 hours.”

Two World Health Organization (WHO) hearing loss initiatives are:

  • World Hearing Day. This day is observed on March 3. It aims to increase the awareness of hearing loss amount professionals, communities, and policymakers.
  • Make Listening Safe Initiative. This initiative focuses on personal audio systems.

Some of the ways workers can protect themselves for noise include:

  • Lowering volumes
  • Taking breaks
  • Using better quality consumer products
  • Reductions in time of exposure to loud noises
  • Hearing protection devices which fit properly 

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. has been fighting for workers who suffer occupational illnesses or workplace accidents for more than 25 years. He works with experienced hearing physicians to verify your inability to work due to hearing loss or your inability and/or your need to use hearing devices for work and for your daily activities. He’ll fight to ensure your hearing loss is fully compensated and the cost for medical care and protective devices is paid. To review your rights with an experienced work injury lawyer, call North Carolina and Virginia lawyer Joe Miller, Esq., at 888-667-8295. or complete my online contact form to or our online case evaluation form to see if you may have a compensable workers compensation claim. 

The Occupational Injury and Illness Classification System (OIICS)

Posted on Tuesday, June 23rd, 2020 at 8:55 am    

According to the Centers for Disease Control and Prevention, “the Bureau of Labor Statistics (BLS) developed the Occupational Injury and Illness Classification System (OIICS) to characterize occupational injury and illness incidents.” There are been several revisions to the original system. The OICS breaks down workplace injuries and illnesses into the following four categories:

  • Nature of the injury or illness. The principal physical characteristic(s) of the injury or illness.
  • Part of Body Affected by the injury or illness. The part of the body directly affected by the previously identified nature of injury or illness.
  • Source and Secondary Source of the injury or illness. The objects, substances, equipment, and other factors that were responsible for the injury or illness incurred by the worker or that precipitated the event or exposure.
  • Event or Exposure. The manner in which the injury or illness was produced or inflicted by the source of injury or illness.

Each of the four categories is broken down into further subcategories. The categories include definition and examples. Some of the relevant sections, that may be used to assess workplace injuries and illnesses are the following. In many cases, an injury or illnesses may be categorized in another part of the OICCS

Event or Exposure

 

  • Violence and Other Injuries by Persons or Animals

 

    •  This category covers “violence and other injuries by persons or animals.” It includes intentional injuries, injuries with weapons (such as firearms and tools designed to be used as weapons) – regardless of intent. It also includes “injuries involving direct physical contact with persons, animals, or insects regardless of intent.” Unfortunately, this has become more of an issue these days, due to workplace violence and mass shootings. 
    • The category doesn’t include injuries due to overexertion or bodily reactions such as running after a suspect or being unintentionally hit by a box thrown or dropped by another person. It also doesn’t include unintentional drug overdoses and “exposures to infectious agents unless intentional or transmitted by an insect or animal bite.”
  • Transportation Incidents. The category includes transportation vehicles, powered industrial vehicles, powered industrial equipment involving at least one vehicle (or mobile equipment) –“and the injury or illness was due to collision or other type of traffic incident; loss of control – or a sudden stop, start, or jolting of a vehicle regardless of the location where the event occurred.”
    • There are additional requirements for transportation accidents involving pedestrians, roadway workers, and other non-passengers struck by a vehicle or other qualifying vehicles or powered equipment.
    • The category applies to many different vehicles including railway vehicles, animals and other non-motorized transportation, aircraft, water vehicles, roadway accidents, and pedestrian accidents. The category includes cars, trucks, RVs, motorcycles, buses, amusement park rail vehicles, canoes, fishing boats, Segways, snow mobiles, forklifts, and other listed vehicle types.
    • Falls “on or from vehicles are transportation incidents if the vehicle was in normal operation.”
    • This category doesn’t include events such as injuries due to the vibration of a vehicle, carbon monoxide poisoning, spilling hot drinks where there’s no collision, gear slips, and other specified incidents.
    • Vehicles that doesn’t fall into this category include, “dollies, carts, wheelbarrows Nonindustrial, non-roadway mobile equipment Wheelchairs–motorized and nonmotorized, stretchers, and wagons.”
  • Fires And Explosions. This category includes cases where a person falls or jumps from a burning building, inhales harmful substances, or is pinned or struck by objects due to the explosion or fire. The category also includes “incidents in which the worker was injured due to being trapped in a fire or whose respirator had run out of oxygen during a fire.” It doesn’t include fires or explosions caused by transportation accidents or intentional actions – which are covered elsewhere. It includes a variety of injuries to firefighters such as injuries from lifting hoses, arson and falls in a parking lot of a burning building. 
    • Injuries due to direct contact with flames from controlled sources such as stove tops that someone in a restaurant kitchen might suffer; and burns due to touching ovens, grills, and burners – are covered elsewhere.
    • In addition, many times folks who come through such experiences, as well as workplace violence will still suffer terrible psychiatric effects long after the physical injuries have healed. Our firm deals with many cases like this, which typically involve development of Post Traumatic Stress Disorder, or PTSD
  • Falls, Slips, and Trips. These include “falls on the same level, falls and jumps to lower levels, falls and jumps that were curtailed by a personal arrest device, and slips and trips that do not result in a fall.”
    • Falls that are covered in other sections includestepping to a lower level (such as, off a ladder, out of a vehicle, or off a curb), falls through openings in floors, or falling into a body of water. 
  • Exposure to Harmful Substances or Environments. Over time, long-term exposures to noise or other harmful substances such as asbestos, silica, or trichloroethylene (TCE) can result in severe impairments, such as asbestosis, cancer, brain damage, and death. 
  • Contact with Objects and Equipment. This category applies to contact between the injured person and the source of injury unless the contact is covered in another category such as a fall or a violent act. The category doesn’t include workplace contact with other people or animals. It also doesn’t include exposures to hot or cold objects or substances, contact with electrical currents, exposure to toxins or allergic substances, and exposures to infectious agents. Those contacts are generally covered in other categories.
  • Overexertion and Bodily Reaction. This category applies generally to non-impact injuries or illnesses that result from “free bodily motion, from excessive physical effort, from repetition of a bodily motion, from the assumption of an unnatural position, or from remaining in the same position over a period of time.”
    • Further subcategories include:
      • Overexertion and bodily reaction, unspecified. Examples include lifting, pushing, pulling, turning, holding, carrying, wielding, throwing, and catching
      • Overexertion involving outside sources
      • Repetitive motions involving microtasks 
      • Other exertions or bodily reactions 
      • Multiple types of over-exertions and bodily reactions 

North Carolina workers’ compensation lawyer Joe Miller Esq. has helped thousands of workers in North Carolina and in Virginia get just recoveries for a wide variety of workplace injuries. He’s been fighting for employees for more than 31 years. He has the experience and resources to fully document your medical expenses, your lost wages, and any other related work injury costs. He’ll fight to get you a strong recovery. To schedule an appointment with a respected work injury lawyer, is please phone Joe Miller, Esq., at 888-667-8295. or fill out my online contact form

Filing a COVID-19 Workers’ Compensation Claim in North Carolina

Posted on Friday, May 15th, 2020 at 8:42 am    

The COVID-19 pandemic is affecting every type of worker. Some work such as healthcare and delivery service work has been deemed essential by the Governor of North Carolina. Other work has been categorized as non-essential. Governor Cooper has issued a new  Executive Order essentially placing North Carolina into Phase 1 of Re-opening, while still  engaging in social distancing, testing, and possibly contact tracing.

Meanwhile, the pandemic is spreading through the state and the world. It is affecting nursing home residents and the elderly more than any other groups. Nurses, doctors, EMT personnel, ambulance service workers, and other health care professionals are at high risk for contracting the virus because they work with so many patients who already have the disease and because the disease is easily transported. Workers who deliver products to our homes are also at risk every time they touch a doorknob, pick up a package, or come into contact with other people.

I recently covered this issue in a couple of short, informal cell phone videos I did for Virginia Workers’ Compensation benefits, namely, if a healthcare worker gets ill from COVID-19 on the job, does he or she have a valid workers compensation case? 

The answer, unfortunately for Virginia Workers, is while technically they may have a case, the real answer is that the level of proof required for an “ordinary disease of life” such as becoming ill from COVID-19 is so high that it will result in all cases being denied by insurance companies. So while a sick healthcare worker may be gasping for air on a ventilator, unable to work and facing thousands in healthcare costs, assuming he survives, the worker’s compensation insurance company will be denying payment for the claim, saying the sick worker has contracted an “ordinary disease of life,” cannot prove it came from work, and has therefore no case. 

And of course, this is an outrageous situation, and that is why I did another video urging all citizens to call and email their State Representatives to get legislation passed that will protect our most cherished heroes—our healthcare workers who are battling this terrible virus. 

Occupational Illnesses in North Carolina

So is the situation any better in North Carolina? Workers in North Carolina are entitled to work injury benefits (partial pay and medical bills among other benefits) if they are injured while doing their job. Workers are also entitled to benefits if they meet the statutory definition of an occupational illness. 

Whether a worker who develops COVID-19 can request North Carolina workers’ compensation benefits is currently an open question, but unfortunately, it does  Eligibility may depend largely on whether the worker was an “essential” worker and on other factors.

Occupational illness presumptions

The North Carolina statute provides in North Carolina General Statute Section 97-53 that many specific diseases are considered occupational diseases. A few of these specific examples include anthrax, various types of poisoning (brass, zinc, lead, and manganese to name a few), bursitis due to intermittent pressure in the employment, and other illnesses listed in the statute.

If an injured worker contracts one of the specific diseases listed in the statute, then the injured worker is generally going to be able to obtain work injury benefits when a disease or illness is specifically listed such as lead poisoning. If a disease is listed, then there is a presumption (which can be rebutted) that the worker developed the occupational disease through work.

One possible avenue for recovery for workers’ compensation benefits for any worker who develops COVID-19 would be for the Legislature in Raleigh to consider adding COVID-19 to its list of specific diseases, or simply to create a special presumption that any healthcare worker who becomes ill from COVID-19, has a compensable claim. 

Showing that the worker contracted the disease through work

But under the current law, COVID-19 is not specifically listed in the statute; however, the statute also has a broad definition that may cover COVID-19:

Item 13. “Any disease, other than hearing loss covered in another subdivision of this section, which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.”

This definition in my opinion is slightly more liberal than Virginia; however, because it would still term COVID-19 an “ordinary disease of life,” the burden would remain on the worker to show not only that he or she was at increased risk of contracting the disease for the type of work performed but that the exposure at work was far higher than that of the general public. This may prove particularly challenging in light of the fact that we are in a pandemic, meaning that almost everyone runs the risk of exposure to the virus.  

For COVID-19, coronavirus cases, under the current statutory scheme, the employee would need to focus on showing that the there was a greatly increased risk of contracting the disease for the type of work the employee did – as compared to the risk to the general public. Since everyone is at risk for contracting the disease, the focus will need to be on showing the worker’s job created a significantly increased danger.

The problem is, of course, that just like Virginia, as a practical matter, this places an immediate burden on the employee and most likely guarantees that virtually anyone bringing a COVID-19 Workers Compensation case is going to be denied by the insurance company and have to head to hearing. This is certainly not something that anyone struggling to breathe on a ventilator is going to be able to deal with. 

Moreover, you need look no further than the marketing efforts of defense firms in North Carolina to see how difficult this will prove to be for workers who contract COVID-19 illness. 

At least one well-known North Carolina Defense Firm has already laid out its legal strategy for defending any COVID-19 Claim, online, stating “In a pandemic, regardless of the employee’s employment, it seems unlikely that an employee will be able to establish, through lay evidence, where COVID-19 was contracted, or that the employee will be able to rule out, through lay evidence, where COVID-19 was not contracted.” This means they will force employees to prove that the disease was not contracted in just about every location except work, essentially an almost impossible task. 

How the Governor’s Order affects workers’ compensation claims

One of the ways experienced North Carolina occupational illness lawyers may use to help provide the worker’s job included and increased risk is through the Governor’s Order which identifies some jobs as “essential”. Any work that is essential means workers are also going to likely have more contact with people, packages, and items that may be contagious.

Some of the jobs identified by Governor Roy Cooer as essential, in his March 27, 2020 Executive Order are:

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

That being said, in my opinion, under the current statutory scheme, the only workers who have a shot at prevailing would be healthcare workers whose jobs put them at extremely high risk insofar as exposure to COVID-19, such as those testing people for COVID-19,  those treating positive COVID patients, and possibly  workers in nursing care facilities which are known to have very high rates of infection. 

Still, the current statutory scheme will likely guarantee that the claim be denied, although the employer will have the option—if they are feeling generous—of paying some parts of the claim on a non-prejudicial basis, meaning they can choose to deny it later. 

Is that unfair? Of course it is! How can we possibly treat our heroes this way? 

But there is GOOD NEWS

The North Carolina General Assembly is Considering a Proposed Bill to Fix the very unfair Situation 

The good news is that the North Carolina Legislature has followed a number of other states and currently has under consideration House Bill 1057, which would provide a presumption that not only first responders and other healthcare workers, but anyone considered “essential” by the Governor’s Order, due to a pandemic disease would be entitled to workers compensation benefits. The presumption is rebuttable only by clear and convincing evidence. 

At this writing, the bill is not yet in its final form, but hopefully, the Legislature in Raleigh will act with speed and pass this very important law. See the current version of House Bill 1057

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

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

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

Just one day and one night in an ICU unit can run tens of thousands of dollars. The amount of the payment for medical costs may be adjusted depending on whether the employee has other health insurance benefits.

North Virginia workers’ compensation lawyer Joe Miller Esq. is keeping current with the changes to state work injury laws due to COVID-19. He is working (often, remotely) to speak with clients and to process work injury claims. He has helped thousands of injured workers and workers with occupational illnesses get the just benefits they deserve. For any questions about COVID-19, please phone Joe Miller, Esq., at 888-694-1671 or fill out my online contact form to speak with an experienced work injury lawyer.

What Happens if I get the Corona Virus Because of my Job?

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.

JLARC Report on Virginia’s Workers’ Compensation System – More Findings

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:

 

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

 

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

 

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

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

 

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

 

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

 

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

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

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

 

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

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

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

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

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

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

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

JLARC Reports on the Health of The Virginia’s Workers’ Compensation System and on Presumptions about Occupational Diseases

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:

  • Asses how promptly workers’ compensation claims were being examined and processed
  • Determine ow fairly the claims (including that Virginia Workers’ Compensation Dispute Resolution process was working)
  • Assess how well the protocols for reducing fraud were working
  • Review how well the state’s disease presumptions were working, whether the presumptions were right, and whether the evidence to prove or rebut the claims was reasonable

The Fundamentals of the Virginia workers’ compensation program

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:

  • Payment for loss wages (also called indemnity benefits). These are generally 2/3rds of the workers average weekly wage during the time he/she can’t do their job. It can also include additional wage loss payments if a worker has a permanent partial disability in a ratable body part. 
  • Payment for lifetime medical expenses related to the work injury.  This should include payment for hospital bills, doctor visits, treatment with physical therapists and other types of therapists, medical devices such as wheelchairs and prosthetics, and the cost of medications.
  • Vocational rehabilitation Some workers who can’t do their old job may be entitled to counseling and in some cases, payment for schooling so that they can obtain the skills and education to perform work in a different field that is within their permanent physical restrictions stemming from the work accident. That being said, most of the time, this is really not viewed as a benefit, but a way for the workers comp insurance carrier to reduce their obligation to pay benefits. 

Occupational illnesses and presumptions

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.

Some of the findings of the JLARC

The oversight review made the following findings:

  • Timeliness and fairness. Most claims are managed in a timely and fair manner. Disputes between workers and employers also involve the attorneys for each side. They also include the insurance companies for the employers, administrative staff to process claims, and those people involved in making the decisions on the merits of the dispute. JLARC found that most participants were reasonably satisfied with the timeliness and fairness of how the claims were handled. One noted exception was the timeliness of hearings in the Fairfax, Virginia office. Another exception was that the timeliness of when opinions by the Deputy Commissioners were issued could be improved.

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. 

  • Worker misunderstanding of the process. Another finding was that many workers do not have the information or help they need to file claims or to understand their rights to dispute denials of their claims made by insurers. It can be difficult to understand how to access and use Virginia’s workers’ compensation system.  Some of the key concerns regarding the Virginia Workers’ Compensation system included:
    • A poor website. The information is too scattered across the site;
    • The documentation about the process is “not well organized within each document,” and is unclear and incomplete.
    • Employers and the insurance companies for the employers don’t routinely give the workers the information they need to contest initial compensatory decisions.

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. 

 

  • Repetitive stress injuries. Virginia is the only state that does “not provide a remedy through the workers’ compensation system for injuries due to repetitive work activities, such as lifting boxes over several weeks (also known as “cumulative trauma injuries”).” This means that workers who develop bursitis, tendinitis, back pain, neck pain, and other injuries due to repetitive motions must pay for their medical care out of their own pocket even though their injuries are directly attributable to their work. JLARC states that these cumulative trauma injuries are not a driver of increased workers’ compensation premiums (based on data from other states) in contrast to the claims by Virginia employers that repetitive stress injuries are too expensive.
  • Exception: Carpal Tunnel Syndrome.  CTS is the only repetitive stress exception and may be claimed as an occupational disease if all of the proof lines up that the condition was caused by the employee’s work and nothing else. 

 

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 888-694-1671 or fill out my online contact form.

Occupational Disease for First Responders

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 888-694-1671 or complete our online contact form 

 

Lung Disorders from Silica Dust Can Entitle Employees to Worker’s Compensation Benefits Based on an Occupational Illness

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 dust may cause lung disease and death

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:

  • Have a written control plan in place that includes:
    • The methods that will be used to protect workers
    • The strategies used to restrict work access where there are high levels of silica.
  • Appoint a competent person to implement the plan
  • Restrict practices that expose silica to workers such as dry sweeping or using compressed air without a ventilation system
  • Offer employees medical exams (including lung function tests and chest x-rays) every three years for specified workers
  • Educate workers on the danger of silica exposure and the ways to reduce exposure
  • Keep records of exposure and medical tests

Silica exposure and your occupational disease claim

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:

  • The illness/disease was caused by conditions that are unique to a particular type of job – and
  • The illness was not an ordinary disease that the general public is likely to get.
  • The risk of getting the illness/disease is greater than that of general employment

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:

  • Asbestosis – many workers who worked on buildings that had asbestos suffer from this disease. Mesothelioma is a form of lung cancer also caused by exposure to asbestos.
  • Black lung disease (also called coal worker’s pneumoconiosis) – caused by inhaling dust
  • Brown lung disease– common to people who work with cotton, hemp, or flax. It’s a lung disease
  • Farmer’s lung – caused by exposure to bacteria and mold in certain crops
  • Flock worker’s lung – caused by inhaling nylon fibers used for blankets, upholstery, and carpeting
  • Popcorn lung (also called bronchiolitis obliterans) – a lung disease common to employees who work in microwave popcorn plants and who handle certain food flavors such as butter, chips, frosting, and margarine
  • Silo filler’s disease – this is due to exposure to toxic gases from crops that ferment in silos.

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:

  • Arsenic
  • Benzene
  • Beryllium
  • Lead
  • Mercury
  • Nitroglycerin
  • Herbicides and Pesticides

The chemical manganese can also cause serious health problems. Welders are likely to be exposed to manganese.

Make the call to a respected North Carolina/Virginia worker’s compensation attorney today

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.