What Are Workers’ Compensation Compromises and Releases?

Posted on Wednesday, March 13th, 2019 at 3:45 pm    

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

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

General considerations

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

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

Additional questions include:

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

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

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

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

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

There are several reasons for entering into a compromise and settlement

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

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

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

There may be additional factors

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

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

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

Recent Workers’ Compensation Statistics

Posted on Tuesday, March 5th, 2019 at 5:14 pm    

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

Insurance-based statistics

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

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

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

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

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

Leading writers of workers’ compensation insurance policies

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

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

Leading Causes of Workplace Fatalities

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

  • Fishing workers
  • Aircraft pilots and flight engineers
  • Roofers

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

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

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

 

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

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

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

Employer-based statistics

According to employer.com:

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

Workers’ compensation and fraud

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

Employee fraud

The main types of employee fraud were the following:

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

Employer fraud

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

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

 

Additional workers’ compensation findings

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

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

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

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

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

How Does the Medicare Set Aside (MSA) Work?

Posted on Tuesday, March 5th, 2019 at 5:11 pm    

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

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

How does the Medicare Set Aside (MSA) work?

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

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

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

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

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

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

How is the MSA handled?

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

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

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

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

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

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

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

Other NCCI findings

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

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

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

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

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

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

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

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

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

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

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

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

Only the Authorized Treating Physician Can Provide Work Restrictions

Posted on Monday, February 18th, 2019 at 5:43 pm    

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

The Settlement Process In A Virginia Workers’ Comp Case

Posted on Monday, February 18th, 2019 at 5:41 pm    

Here Virginia Workers Comp Attorney Joe Miller reviews the Settlement Process in a Virginia Workers Compensation Case. Although he is addressing his clients, if you are looking at settling your case, you can benefit from this “inside baseball” view of settlements as well.

Can you take a Vacation While Receiving Comp Benefits?

Posted on Thursday, January 31st, 2019 at 5:43 pm    

Here is another important piece of information, free of charge, this time regarding Going on Vacation During the Pendency of Your Workers Comp Claim. So here is the question:

Can you take a Vacation While Receiving Comp Benefits?

Whether it’s summer vacation, winter break, or you simply had a vacation planned prior to your injury, I am unfortunately here to tell you that you may want to think twice before going on vacation if you are receiving workers comp benefits. In this email we will discuss why going on vacation could have adverse effects on your workers compensation claim.

Medical Treatment

If you are receiving workers compensation benefits and you are required to see a physical therapist, orthopedic surgeon, or any other doctor or specialist, it is very important that you keep your appointments and attend every one. If you go on vacation for a long period of time and miss an appointment or request that the doctor change your appointment, you could risk losing your benefits.

Missing an appointment or rescheduling an existing appointment could be viewed as failure to comply with medical treatment by your nurse case manager. As such, particularly in Virginia, the case manager could have the defense lawyers file an application to have your benefits taken away. Once your benefits are stopped, it could be years until they are restored, if ever.

If you are going on a short trip and you will not be missing or rescheduling any doctor appointments to do so, you may be alright. However, as we will discuss in the next section, there are still other issues you need to be aware of even if your medical treatment is not affected.

They are always watching– Surveillance

Another issue you need to be aware of is that a worker’s compensation carrier will be keeping an eye on you. It costs very little for them to hire an investigator who is stationed far away from you with a high-powered lens to video your activities. They will always be looking for anything that you do that could damage your workers compensation claim. Of particular concern are any activities which might be viewed as inconsistent with your doctor’s restrictions. When you are on vacation it can be very tempting to do things that you should not be doing with your restrictions. For example, you may be tempted to go jet skiing with the rest of the family, even though with your restrictions and medical condition you clearly should not be doing that. Or, there may be yard work that involves lifting or engaging in other activities that fall well outside your doctor’s restrictions. Even if there is no investigator, in today’s age of smartphones, which are everywhere, videos or photos of you jet skiing or dirt biking take only seconds to be sent out to thousands on Facebook or other social media, in which case you can say goodbye to your benefits.

Marketing does not stop while you’re on vacation

Yet another issue that could harm your benefits is job marketing. This is for folks who have been released to light duty by their treating doctors, but their employers refuse to accommodate their physical restrictions by allowing them to work in a light duty capacity. So for instance, if you are not under an open award for your workers compensation claim in Virginia, you must be looking for 5-7 jobs a week. If you go on vacation and you stop looking for a week or you find less than 5 for a week, you will have forfeited the right to claim temporary total disability benefits for that week. Similar requirements exist in North Carolina, although they are not as strict.

The bottom line is your vacation should not be a vacation from your marketing efforts and your documentation of those efforts.

If you will not be missing or rescheduling any medical appointments and if you can continue to search for the required 5-7 jobs per week (when not under an open award) then you may go on vacation. But even then, you should be aware that there may be people watching and possibly recording your every move. Do not participate in activities that you should not be doing with your medical restrictions.

If you have been severely injured at work there are many things you need to be aware of to get the compensation you deserve for your injury. You need an experienced worker’s compensation lawyer on your side. Joe Miller has 30 years of experience in bringing injured workers the Strong Justice SM they deserve. Call today at 888-694-1671 or visit www.TheWorkInjuryCenter.com to learn what Joe Miller and his team can do for you.

Remember, you can still claim your free Case Success Tool Kit by clicking here.

All the best,

Joe Miller

Always Attend Your Physical Therapy Appointments

Posted on Thursday, January 31st, 2019 at 5:41 pm    

Here is another important piece of information, this time regarding Physical Therapy. 

We have had some of our clients tell us (after the fact) that they didn’t make their physical therapy or other doctor’s appointment for one reason or another. It might be a sick child. It might be that the client didn’t feel well. Perhaps the person’s ride fell through at the last minute.

Or, we’ve even heard “Well, I just didn’t feel like they were helping me, so I quit going.”

You must understand that when you are in a worker’s compensation case, especially an accepted claim, it’s a lot like being in a fishbowl.

The workers comp insurance company has a defense team that is watching your every move, and just waiting, like a cat standing over that fishbowl, for the right moment to “pounce” and wipe out your case.

We understand that occasionally, there may be things that come up which interfere with your ability to get to a physical therapy appointment. But habitual absence from scheduled appointments will only give the carrier the ammunition it needs to file a motion and stop your checks.

All the insurance company has to do is file a simple paper called a Form 24 that says that you have not been complying with the medical treatment plan by failing to attend the PT appointments prescribed by your treating physician. And you only have 14 days to respond to that Form 24. You should consider it like a nuclear bomb insofar as your case is concerned.

That’s because if you fail to respond within the 14 days, then the Industrial Commission can enter an Order stating that you have failed to comply with your medical treatment plan, and from that day forward, as long as that is true, your workers compensation weekly checks will stop.

So, please do not let this happen to you. Make every effort to attend all of your appointments. If therapy is not helping, then by all means, tell your treating doctor, but do not decide to stop going on your own.

All the best,

Joe Miller

Don’t Quit Your Job

Posted on Thursday, January 31st, 2019 at 5:40 pm    

Here is another important piece of information we want to provide you with respect to North Carolina Workers Compensation Claims.

And that is this: If you get hurt at work, don’t quit your job.

I’ll say it again: If you get hurt at work, don’t quit your job.

And again: Do not quit your job!

I know I sound like a broken record, but if I could shout it from the rooftops, I would. We regularly get calls from people who were badly hurt on the job, who desperately need help paying the mounting medical bills, and actually have a pretty good case on their hands. And it breaks my heart every time I hear that that person quit his or her job before calling us.

I understand why injured workers feel like their only option is to quit their job after an accident. They’re hurting, and their employer won’t listen and refuses to change their duties to match the doctor’s restrictions. Or maybe the doctor they went to won’t listen, and their pain only gets worse every day. It’s frustrating and stressful and eventually everyone has a breaking point. But if you get hurt at work and decide to quit your job, you instantly lessen any hope you had of taking your workers’ comp case to a Hearing and recovering your benefits.

The workers’ comp insurance companies would love for you to quit, because by quitting, you basically make their case for them. Injured employees can be awarded workers’ comp benefits when a workplace injury leaves them unable to work. In North Carolina, if you have an accepted claim, even if you are able to work, but your doctor says you cannot physically return to the work you were doing before the accident, you would still likely be entitled to ongoing weekly benefits.

But if you quit your job, the reason you can’t work isn’t because you were injured and you have to adhere to your doctor’s physical restrictions; it’s mostly because you took yourself out of the labor market by quitting. A Commissioner will take one look at a case where the employee quit, shrug, and may very well say, “tough luck.”

If you have an accepted claim, and your doctor puts you on light-duty, your employer has to either: 1. find a reasonable way to accommodate your restrictions, 2. find you another job within your restrictions, or 3. If they do not want to accommodate your restrictions, then keep paying you benefits for up to 500 weeks, assuming you are looking for other work within your restrictions. In most cases, they will simply keep paying you your weekly benefits.

If your employer does accommodate your restrictions and you come back to work on light duty after an injury, and it still hurts, then you should go back to your doctor, tell the doctor exactly what they are making you do at work that hurts you, and have your doctor write an order demanding the employer follow your restrictions. Sometimes, the doctor may decide that it’s a dangerous environment for you and he or she does not want you working in that environment at all, and then takes you back out of work again, in which case your weekly comp benefits would re-start. If your doctor won’t listen to you, call a workers’ comp attorney who may be able to get you a different doctor who will listen.

But again, if you quit, without the doctor holding you out of work, you have greatly lessened any possibility that any of those things can occur because you have removed yourself from work by quitting. In other words, the reason you are not working is because you quit, not because a doctor says you cannot work.

I cannot tell you how many great cases we have been forced to turn away because the worker quit his job before he called us.

If you have been injured at work or you know someone who was hurt on the job, and are wondering if you should quit, think about all the medical bills you have to pay on your road to recovery from your work injuries. Workers’ comp exists to help you cover your medical expenses so you can heal and maybe one day rejoin the workforce. Don’t make an impulsive decision to quit that ruins your chances of being able to get the help you need.

I’ll leave you with one last piece of advice: If you get hurt at work, don’t quit your job!

Wishing you a speedy recovery,

Joe Miller

Don’t Get A Side Job While Receiving Comp Checks!

Posted on Wednesday, January 9th, 2019 at 5:01 pm    

In this video, Attorney Joe Miller explains why you should NEVER obtain a side job or other “under the table” job while receiving workers’ compensation benefits:

Frequently Asked Questions – Part Three

Posted on Wednesday, January 9th, 2019 at 4:56 pm    

Here’s our third series in common questions and answers about North Carolina and Virginia worker’s compensation.

What is a Nurse Case Manager? (NCM)

Employers have the right to appoint a nurse case manager to help injured and ill workers with their medical needs. Employers will say that the nurse case manager is just trying to help the worker get healthy. That’s not always the case, in fact it is mostly not the case. While a nurse case manager can help coordinate your appointments and help get workers to their treatment or therapy sessions; nurse case manager’s main goal is to show that you are ready to return to work. They are agents of the insurance company and one of the defense professionals usually hired to do the insurance company’s dirty work.

What is that “dirty work.” The insurance company’s interest is to get you back to work as soon as possible. In Virginia, if you are not yet under an Award, and you get released to light duty— that means ANY light duty—even with a one lbs lifting restriction—then the insurance company does not have to pay you a penny, even if your employer does not accommodate your restrictions.

Employees should review with their worker’s compensation lawyer exactly what the nurse case manager can and cannot do. Nurse case managers do have the right to know about your appointments. They do have the right to go the doctor’s office or therapy office. They do have the right to obtain bills and reports from the health provider’s office. They do have the right to discuss your medical condition (including the diagnosis, necessary treatments, and prognosis) with the health professional. They can help you get transportation to the medical office.

They don’t have the right to be in the examination room with you the entire time, if you do not want them in there.  At least some portion of your examination with your doctor should be private so you’re comfortable explaining exactly why you’re hurting. Your doctor should know you can’t lift objects or that it hurts when you move. You also have the right to be present when the nurse case manager discusses your case with the physician. The nurse case manager and the doctor are supposed to be there to help you – not bow to the insurance company’s desires. They do not have the right to “manage” your medical care by deciding where or with whom you will treat. Those decisions belong to the authorized treating physician.

For the most part, the nurse case manager’s access to your physician will be dependent on how open your physician is to dealing with the nurse case manager. Some are more open to allowing the NCM into the examination room, while others are less open to it. Our interpretation of the law is that their only obligation is to provide the records to the NCM. Beyond that, your physician is under no legal obligation to talk to the NCM. The issue is that many physicians realize that if they completely “shut out” the NCM, it is less likely that the physician is going to get any further referrals from the insurance company. In other words, it’s bad for business. Most patient advocate type physicians will walk a fine line of communicating with the NCM, but maintaining their own independent medical judgement, despite the pleas of the NCM to return you to work before you are ready.

What is an independent medical examination?

Sometimes, the employer or your own lawyer will request an independent medical examination (IME). An IME is a physical and oral examination of your current health condition. It is performed by a physician who is not one of your treating doctors. In North Carolina, you are entitled to an IME with a physician of your choice respect to your permanent impairment rating if you do not like your treating physician’s opinion in that regard, at the defendant’s expense. In North Carolina, you are also entitled to an IME at the defendant’s expense for general issues as well; however, there must either be an agreement by both sides as to who will perform the general IME, or the Industrial Commission will have to order who will perform the IME via a motion filed by the attorney.

In Virginia, you have no right to obtain an IME at the defendant’s expense; however, you are entitled to see any doctor you like at any time at your own expense. In North Carolina, it is not advisable to do this, as the IC will generally ignore unauthorized examinations and opinions.

On the other side, the employer’s insurance company also has the right to request an IME at any time in both Virginia and North Carolina. The defense may request an IME to try to show you are ready to go back to work, or when there is a question as to whether a procedure or surgery recommended by your physician is medically necessary. The doctor is hired by the employer’s insurance company which means he/she is not your friend. The employer physician normally only sees you one time at the IME. He or she will take an oral history and then conduct the physical exam.

You and your lawyer have the right to challenge any report the IME doctor makes that suggests you can return to work or that you can go back to work with some restrictions. Your lawyer will normally seek to have one of your own doctors review the IME doctor’s report – and explain where the report is not accurate.  Your treating doctors can show what the IME doctor misses because he/she only sees you one time and why any conclusions about your ability to work are not true.

Should I seek vocational rehabilitation?

Some workers can’t return to the type of job they did before their accident. For example, construction workers who needed to be able to lift 50-100 pounds or more to do their job may now not be able to lift much more than a few pounds.  Going back to work with restrictions may not be an option – either because there are no suitable restrictions (you just can’t do physical labor any more) or because the employer doesn’t have a job that matches your abilities.

Since you can’t do the job you’ve been trained for, you may be eligible to be retrained to do a new type of job. The new job is often more clerical and administrative if you were a physical laborer. Your North Carolina or Virginia work injury lawyer should then explain that you may be eligible to go back to school or to attend a training program so that you can be qualified to do more work.

That being said, the process of vocational rehabilitation, unless it is a simple payment for school tuition (rarely the case), is generally not what it sounds like. In our experience, it is generally an unpleasant and difficult process designed to strip you of your benefits. It is generally not designed to find you suitable employment but trip you up and find you out of compliance and hence no longer entitled to your workers comp benefits.  

While engaged in vocational rehabilitation, you still have the right to be paid your compensation checks (generally 2/3rds of your average weekly wages) and treat with you doctors. The insurance company is supposed to pay for your tuition or course costs, your books and training materials in connection with any vocational rehabilitation, but in our experience, they will typically take the cheapest road and enroll you in free courses if any re-training is required. If you need help getting to the course programs or school, vocational rehabilitation is supposed to either help or reimburse you for your transportation costs as well.

What does a vocational professional do?

This is someone who is trained to say what type of work a person can and can’t do based on the worker’s education, past job experience, current skills, and current physical and emotional abilities. Employers sometimes employ a vocational professional to say that – while you can’t do your current job – you should be able to find suitable work in the area where you live. These professionals usually review Department of Labor standards and other guidelines to help make their determination.

They will typically start with an initial session which goes through your entire work history to determine your current transferrable skills. They will also review any FCE’s and your doctor’s records to determine your current work restrictions. After that, the vocational rehab professional will often meet with you on a weekly basis to provide job leads for you to apply to. These job leads are supposed to be pre-screened, meaning they job must be within your physical restrictions, within your skills, and also at least some significant portion of your pre-injury wages. In other words, if you were earning $1500.00 per week pre-injury, having you apply for a minimum wage job would not be suitable employment.

Experienced work injury lawyers understand how to question vocational professionals. They also understand that most of the time, their job is not to find you suitable employment, but to trip you up so that you are stripped of your workers compensation benefits. They work to make sure the vocational rehabilitation counselor follows the rules and guidelines which govern what they can and cannot do.  In some cases, they may consult with another vocational professional who has a different opinion about the work you can and cannot do.

Attorney Joe Miller Esq. has been a strong advocate for injured and ill workers for more than 30 years. He’s helped thousands of North Carolina and Virginia employees get just recoveries when they’re hurt on the job or suffer an occupational illness. To speak with a lawyer who fights for injured workers, please call 1-(888) 667-8295 or fill out my contact form.

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