Mileage Adjustments for Medical Visits

Posted on Saturday, November 2nd, 2019 at 10:20 am    

Injured works and ill workers in North Carolina and Virginia are entitled to have all their reasonable and necessary medical expenses paid. This includes more than just paying hospitals for surgeries and hospital visits, doctors for their reviews and treatments, and therapists for their continual care. It includes more than the cost for medical devices and prescriptions. 

Workers also have the right to have the insurance company for the employer pay for the cost to get to the hospitals and their doctors. This is especially fair because the employer chooses the doctors patients can treat with and the choice is what’s best for the employer, not what’s best or convenient for the employee.

What reimbursement costs are allowed?

In both North Carolina and Virginia, the mileage and transportation costs include the cost to pay for cabs and rideshare services, public transportation, parking lot fees, and tolls. For employees who drive their car to the medical provider’s offices, they are entitled to a mileage allowance.

Reimbursement costs don’t include the cost of gasoline to get to these medical offices and they don’t cover trips to the pharmacy. Pharmacy costs generally aren’t covered because many workers and doctors can use mail pharmacy services.

According to the North Carolina Industrial Commission rules, mileage reimbursement is allowed for trips 20 miles or more (round trip – so 10 miles each way) as follows:

When and how can reimbursement for sick travel be collected?

In North Carolina, this is done through a Form 25T. If employees travel 20 miles or more round trip for medical treatment in workers’ compensation cases, they are entitled to collect for mileage at the rate of 25 cents a mile for travel prior to June 1, 2000; 

  • 31 cents a mile for travel between June 1, 2000 and January 17, 2006; 
  • 44.5 cents a mile for travel between January 18 and December 31, 2006; 
  • 48.5 cents a mile for travel between January 1 and December 31, 2007; 
  • 50.5 cents a mile for travel between January 1 and June 30, 2008; 
  • 58.5 cents a mile for travel between July 1 and December 31, 2008; 
  • 55 cents a mile for travel during 2009; 
  • 50 cents a mile for travel during 2010; 
  • 51 cents a mile for travel between January 1 and June 30, 2011; 
  • 55.5 cents a mile for travel between July 1, 2011 and December 31, 2012; 
  • 56.5 cents a mile for travel between January 1 and December 31, 2013; 
  • 56 cents a mile for travel between January 1 and December 31, 2014; 
  • 57.5 cents a mile for travel between January 1 and December 31, 2015; 
  • 54 cents a mile for travel on or after January 1, 2016.

The IRS sets the reimbursement rates so the amount workers can be reimbursed is the same in Virginia as it is for North Carolina. As of this writing, it is .555 cents per mile.  In Virginia, there is no prescribed form to recover mileage, but it should be done clearly and legibly, with each date of service listed as well as the mileage roundtrip for each date. 

In addition to transportation expenses, in North Carolina: “Employees are entitled to lodging and meal expenses, at the rate established for state employees by the North Carolina Director of Budget, when it is medically necessary that the employee stay overnight at a location away from the employee’s usual place of residence.”

Your North Carolina and Virginia workers’ compensation lawyer will help you obtain and fill out the correct reimbursement forms. It’s critical that you document all your travel expenses. This means getting receipts where you can and keeping a travel and mileage journal.

Medicare vs. Workers’ Compensation – Who Pays

Posted on Wednesday, October 30th, 2019 at 10:19 am    

Many older workers who are injured on the job or suffer an occupational illness are entitled to both Medicare and Worker’s Compensation benefits.

There are two general issues involving Medicare. The first involves the regular medical submissions from doctors and other health providers while the employee is getting treatments so they can return to work – or know if they can’t return to work. These payments are paid until the worker reaches maximum medial improvement – the point at which future medical treatments won’t help the worker’s health improve. 

The second issue involves the settlement of the claim after the worker has reached maximum medical improvement. In a settlement, funds need to be allocated ahead of time, often before the worker is eligible for Medicare, to account for what Medicare will pay and what workers’ compensation will pay. This is discussed in several places on this website and is known as a Medicare Set-Aside (MSA)

Workers’ compensation is managed by the state where you work. Medicare is a federal program. Generally, the bills for work injuries are submitted to the insurance company for your employer. If they refuse to the pay the bill with 120 days, then Medicare should pay the bill – conditionally. This means Medicare pays the bill – but reserves the right to be reimbursed if it is agreed that the workers’ comp carrier should have paid the bill or there is a ruling that they should have paid the bill. 

The medical bill should be something that Medicare covers. Complicating matters is that Medicare normally only pays 80% of hospital and physician services. Supplemental insurance pays the other 20% if the worker has supplemental insurance. The issues get more complex if the worker has reached the age of Medicare eligibility before he/she has reached maximum medical improvement.

A Workers’ Compensation Medicare Set-Aside Agreement is used to pay future bills in a settlement. Typically, before any long-term settlement is reached, the lawyer for the employer will contact a company who specializes in estimating the future medical costs of the injured worker in relation to their work injuries. That company will usually then prepare a detailed Medicare Set-Aside report which sets forth, in great detail, the estimated amounts of the injured worker’s future treatment for his or her work injuries. 

If the injured worker is a current Medicare recipient, the employer’s attorney must then submit that report to Medicare’s CMS Office to get approval for any funds that are set aside to pay Medicare in the future. This is money that is set aside is first used to pay the future medical expenses in relation to the employee’s work injuries.  Once approved by CMS, the settlement can then proceed. 

 Only when the set-aside amount is used up can the worker request that Medicare pay for any other future medical bills. To ensure that Medicare isn’t paying more than it should, if the worker is a current Medicare recipient, he or she must obtain the OK from Medicare for set-aside amount.  Sometimes the set-Aside arrangement will be lump sum, other times it will be an initial seed amount, followed by yearly payments for a set number of years to the worker. In addition, sometimes the Medicare money is “self-administered” by the employee, and other times, it is administered by a Medical Management Company. 

If the injured worker is not a current Medicare recipient, but the settlement is over a certain amount and the worker has applied for Social Security Disability (SSDI), it is recommended that a Medicare Set Aside be done privately by the employee as part of settlement, and that the amounts set aside be recited in the settlement agreement. This is to make sure Medicare’s interests are protected, because a worker who is deemed disabled by the Social Security Administration will automatically qualify for Medicare at 24 months from his or her date of disability. Although such arrangements for non-Medicare recipients do not have to be reviewed in advance by Medicare, they are advisable to avoid any problems down the road. 

The bottom line is that the law wants to prevent “double-dipping.” Medicare does not want to see a worker receiving a settlement which includes money for future medicals for his or her injuries, and then see that same worker turn around and hit up Medicare for those same bills. 

Experienced workers’ compensation lawyers know how to review Medicare-Set Aside plans to help determine what your future medical needs such as continued therapy, medication, or diagnostic procedures a will be. Once a settlement is made, the employee can’t go back and ask for more. That being said, the beauty of a formal Medicare Set-Aside is that once the money is used up, the worker can then turn to Medicare to cover his or her treatment related to the work injuries.

Virginia and North Workers’ Compensation Attorney Joe Miller Esq.  knows his way around the rules pertaining to authorized physicians as well as Medicare.  He’ll help you come up with legitimate strategies to find a solution if the company doctors are more interested in rushing you back to work than in treating your injuries or illnesses. He’s helped thousands of employees get the full workers’ compensation awards and settlements they deserve. For help now, call lawyer Joe Miller at 888-667-8295. or fill out my contact form to make an appointment.

A Few Unique Medical Considerations in a Workers’ Compensation Case

Posted on Wednesday, October 30th, 2019 at 10:08 am    

In Virginia, workers are generally required to treat with a doctor chosen from a list of doctors provided by the employer. This list is known as a “panel” of doctors. Panels must be provided for each individual specialty required.  Oftentimes, there is no time to choose from a panel because the injured worker has been transported by ambulance to the emergency room and/or undergone surgery by a physician such as an orthopedic surgeon, who will typically continue to treat the injured worker.  If the injuries are severe, there is often an extended hospital stay where the injured worker may see several specialists while in the hospital. In those circumstances, panels are not usually required, as the doctors who treat the injured worker in the hospital will typically become the authorized treating physicians by virtue of their visits with the patient and their familiarity with his or her injuries and treatment over time. 

Workers in Virginia should be wary of companies who shuffle workers off to a “company doctor” as the sole means of treating an injury. This is not in accordance with the law. The injured worker in Virginia is entitled to choose from a panel of three doctors which the employer/comp carrier must provide.  Note that all of the doctors on the panel must be from different practices. The employer cannot simply list three doctors within the same practice and ask the injured worker to choose one.   

In North Carolina, there are no panels of physicians offered. The workers’ compensation carrier is pretty much given free reign to choose a physician to treat the worker’s injuries. The thinking is that if the employer is footing the bill, they get to choose the doctor. That being said, the same kind of restrictions apply as in Virginia for Emergency treatment: The surgeons or other providers who treated the injured worker in the hospital will typically become the authorized physicians, and the carrier really does not have the right to randomly switch treating physicians just because they do not like the surgeon who performed the surgery in the hospital. 

The big difference in North Carolina is that there is a provision for a second opinion exam at the expense of the insurance company if the worker is dissatisfied with the treatment of the authorized treating physician. This must be agreed upon or ordered by the Industrial Commission. 

In Virginia, there are unfortunately no such provisions for a second opinion examinations with physicians chosen by the employee; however, workers are free to pay for their own second opinion examinations or treatment with whatever doctor they want to if they so choose, or if they are able to do so under private health insurance. That being said, workers should be cautioned that the VWCC will always give more weight to the opinions of the authorized treating physician than the injured worker’s chosen doctor. 

While the pain doctors, orthopedists, and other doctors that treat workers are of primary concern, a secondary concern is which pharmacy the employee uses and the prompt filling of prescriptions. The treating doctor is the physician who fills out the prescription. The nurse or staff for the doctor normally calls in, emails, or mails the prescription to a local pharmacy. It can be extremely frustrating for some patients when the workers compensation insurance company either delays the approval of certain medications or simply does not respond to the pharmacy’s requests for approval in a timely fashion. 

Sometimes this is based on the fact that the particular medication prescribed by the treating doctor is simply too expensive. 

 

Deciding the right medications for a worker’s condition

“According to the Insurance Journal, North Carolina authorized a study (called a drug formulary) of which drugs should be used to treat specific work injury conditions and illnesses in 2015.

“A drug formulary is, very simply, a preferred list of prescription drugs. This list can include both generic and brand name drugs, and is composed to identify drugs that are: 

(1) appropriate to treat the compensable injuries and

(2) offer good value. 

The drugs included on a formulary are considered to be medically appropriate and also cost-effective when prescribed for certain medical conditions. It is not uncommon for health care payors to maintain lists of pre-identified and pre-approved drugs. Formularies are widely considered an appropriate tool to encourage the safe and affordable use of prescription medicines.”

Supporters of drug formularies claim it saves costs and offers better medical treatments. Opponents argue that the employee may not be getting the correct drug for his/her medical condition. 

North Carolina eventually decided not to use a drug formulary. Instead they developed rules for the use of opioids for pain management.

Virginia does not use formularies, either. The authorized treating physician is free to prescribe whatever medications that he or she deems necessary to effect a cure or give relief to the patient. 

Choosing the pharmacy

Generally, while the employee in a North Carolina workers’ compensation case must use the company’s doctors, the employee can decide which pharmacy to use. The employee can also switch pharmacies if one pharmacy isn’t satisfactory. 

An alternative to visiting the local pharmacy is to use a mail-order pharmacy. For employees who can’t move about easily (workers’ compensation does not normally pay for the cost of travel to the pharmacy, a mail-order pharmacy offers the convenience of not having to leave home and saves the costs. If the carrier will not pay the costs of the medication outright, the injured worker can make a claim in North Carolina for prescription costs with a Form 25P

Often workers who have reached the point of maximum medical improvement – where additional treatments with their doctors won’t improve their condition – still need to use medications for the rest of their lives or for a substantial period of time.

Maximum Medical Improvement (MMI) in Workers’ Compensation Cases

Posted on Thursday, September 19th, 2019 at 11:06 am    

Workers who are injured on the job can take months or even years before their injuries are properly healed. Many employees with severe injuries such as spinal cord damage, lost vision, or traumatic brain damage never fully heal.

In workplace injury cases, the initial medical goals are to treat any emergency conditions, make a proper diagnosis of the worker’s injuries, and develop a treatment plan. The physicians should also explain to the patient the long-term prognosis for their medical condition. The employer’s insurance carrier (unless the employer is self-insured) is required to pay for all necessary medical care to help the worker improve physically and emotionally – as much as possible.

A major medical and legal determination and milestone in an injured worker’s case is when he or she finds out if the worker can return to his or her job. Another important determination connected with this is whether the worker has reached maxim medical improvement (MMI). 

MMI is the point where additional medical care is not reasonably likely to improve the health of the worker. Additional surgeries aren’t likely to help and additional therapies aren’t likely to help. MMI does not automatically mean the end of medical care because some injured workers still need physical and other types of therapy such as pain management so their condition doesn’t worsen or they can achieve ongoing pain relief. 

Options when the worker achieves maximum medical improvement

MMI does not mean the worker is as healthy as he/she was before the accident. It just means that additional medical care won’t make a major difference. When a worker has reached MMI, then he/she should work with an experienced North Carolina workers’ compensation lawyer to review the following issues:

  • Can the worker return to his/her job without or with restrictions?
  • Can the worker return to work with restrictions such as not have to lift more than 20 pounds? 
  • Has the employer initiated vocational rehabilitation?
  • Is it necessary to look for work within the now permanent work restrictions that been assigned to the injured worker? 
  • Has there been a permanency rating assigned by the doctor to the injured body parts? 
  • Additional options discussed below

MMI usually means you may consider an overall settlement of your claim

Workers who have reached maximum medical improvement could also consider settling their overall claim. Workers generally can’t settle their claim if there’s the reasonable probability that continued medical care of a substantial nature would improve their condition. This does not mean medical care such as pain management or the ongoing taking of medication. MMI is typically not declared by the treating physician if additional, major procedures such as surgery are upcoming. 

On the other hand, if the worker has been declared to have reached MMI, then what usually happens is the treating physician will refer the worker for a Functional Capacity Exam (FCE) to determine their permanent physical restrictions. 

After receiving the results of the FCE results, that is usually a good point to think about seeking a lump-sum settlement based on the worker’s average weekly pay, the standard 2/3rds adjustment of the pay, the number of weeks they can still receive pay, (which is usually the remainder of 500 weeks if they are under an Award or under an Accepted Claim) their likely future medical bills, and other factors. 

In North Carolina, a settlement agreement in a workers’ compensation case is called a Clincher Agreement. In Virginia, it’s simply called a Full and Final Settlement. Once you accept the lump sum payment as a settlement, upon entry of the Settlement Order by the Workers Comp or Industrial Commission, your rights to income payments due to a temporary total or temporary partial disability generally stop, as do your medical benefits. 

There are a lot of pros and cons to settling your case once you’ve achieved MMI:

  • If you settle your claim, you get the funds now. You then control how the funds are invested and what you can do with the money.  
  • If you were to die, if you have an Open Workers Comp case, the funds would simply stop and your family or heirs would receive no benefit. If you settle, the money is yours to leave to whomever you want. 
  • A danger in settling the case is that you can’t come back later and ask to reopen the case. If there is a likelihood that you will need future medical care because your condition will likely worsen or because you need the care to keep your health at the same level – then:
    • If you settle your case, you also settle how much will be paid for these future medical bills
    • If you keep your case open, then if the medical expenses become more than you expected, you can demand payment for these new medical bills as they occur.

MMI means you can seek a Permanent Impairment rating

Additionally, as noted above, the worker can seek an impairment rating which can result in income payments based on the type of injury the worker has the severity of the injury. The severity of the injury is based on an impairment rating typically expressed as a percentage, and that rating is then translated into a number of weeks of payments, all set forth in the statute books.  Typically, the treating doctor will assign an impairment rating based on the workers condition and standard medical guidelines such as those of the American Medical Association or the North Carolina Industrial Commission. 

A common misconception is that the permanency ratings are very important in valuing a worker’s comp settlement. If one is unable to return to his or her occupation due to the work injury, then that is certainly not true. Impairment ratings are really only relevant in terms of settlement discussions in cases where the injured worker has RETURNED TO WORK at the same or higher wage as the pre-injury job.  

If the injured worker is unable to return to his or her occupation, in most cases, the impairment rating is not relevant to settlement discussions. This is because one cannot get more than 500 weeks of benefits except in rare cases. The ratings cannot ADD to the 500 weeks and one cannot get ratings money at the same time one is getting weekly checks for workers comp. So, what becomes relevant is how many weeks remain of the maximum allowable weeks of 500 weeks. Usually, the impairment ratings, unless there are extremely severe injuries to multiple body parts, are not going to come anywhere close to the remainder of the 500 weeks. So that number—the number of remaining weeks of the 500 weeks times the weekly workers comp check—becomes the most relevant number. 

Reaching your MMI does not mean your disability benefits end. They continue as long as the law allows, meaning unless you settle your claim or return to a job paying the same or higher wages as you had before you were hurt. 

The impairment rating is essentially based on whether your type of injury is covered by the North Carolina statutes – at NC Workers Compensation Act 97-31.  

Covered injuries are assigned a number of weeks. For example, the loss of an arm is assigned 240 weeks. If you can still use your arm but not as much as before the accident, the treating doctor will assign an impairment rating to reflect the degree of loss. If the impairment rating is 20% that would equate to 240 x .20, or 48 weeks. Then if your average weekly income was $1,000 a week – then your comp payments are $666.67 per week. So you would be entitled to 666.67 x 48 weeks, or $32,000.16.

Workers in North Carolina have the right to challenge the impairment rating of the treating doctors by getting a second opinion which is paid for by the employer’s insurance carrier. If the ratings differ, then the North Carolina Industrial Commission may be required to decided which rating to use. No such right exists in Virginia. 

 

Virginia and North Workers’ Compensation Attorney Joe Miller Esq. has been helping injured workers for more than 25 years. He’ll review and explain your options once you’ve reached maximum medical improvement. He’ll work with your doctors and you so that you make the right choices for your physical and economic needs. To review your case now, call lawyer Joe Miller at 888-667-8295. or use my contact form to make an appointment.

More Information on Clincher Agreements

Posted on Thursday, August 1st, 2019 at 3:23 pm    

Why employees consider a clincher agreement?

For many workers, once it becomes clear that they have reached maximum medical improvement (MMI) (that no further treatments will improve their health), it makes sense to start thinking about their long-term position. Some of the reasons workers consider lump-sum payments are:

  • Plain and simple – the worker gets to control the money.
  • The worker can’t rely on the 2/3rds of your wage weekly checks, which only come once per week. It is more advantageous to have a lump sum, so the funds can be invested, or used for a business, so that the family can be taken care of, and for other reasons personal to the worker.
  • If the injured worker dies at any point, his or her checks will stop and so will all future, potential medical treatment. A settlement usually converts a significant future portion of the future checks and medical treatment the employee would receive to a lump sum of cash, which cash can be saved, invested, and passed on to one’s heirs. 

The disadvantages of a clincher agreement

  • If your condition gets worse than you expected, you can’t go back and ask for additional medical benefits. This is why it is critical that you and your attorney work with your doctors to fully understand your medical prognosis.
  • If you are out of work and unable to obtain an alternate job within your restrictions, you may run out of the clincher money. 

The amount you receive will be discounted to reflect the idea that the lump sum can earn interest over the time you normally would have waited to get your payments.

If, as we’ve pointed out before, you are receiving any unemployment compensation pay, you will lose the right to claim those benefits.

How is the amount of the lump sum payment determined?

The answer depends on your type of injuries. The basic types of injury categories in North Carolina are:

  • Permanent and Total Disability. This type of settlement is reserved for workers where it is clear you will never be able to return to work due to:

 

    • Your injuries from a workplace accident
    • An occupational disease
    • Your combination of skills, ages, and injuries means you can never expect to work again even if you are retrained
    • You have one of the categories of injuries that North Carolina considers to be permanently disabling, brain damage, paraplegia, or quadriplegia.

 

If all these criteria are met, you will be entitled to checks of 2/3rds of your average weekly wage for the remainder of your life.  

    •  Extended Compensation Application for extended compensation at 425 weeks.  This is a separate category of injury where your injuries are so severe that you have lost your entire residual capacity to work. This can come from any type of injury, but you must prove that you cannot work and you cannot file for extended compensation until you reach 425 weeks of compensation. If granted, the Industrial Commission may grant you benefits beyond the typical limit of 500 weeks for your weekly checks. That being said, even if granted, the defendants may, from time to time, challenge your ongoing rights to receive benefits beyond the 500 weeks, by forcing you to again prove that you remain disabled.
    •  Temporary Total Disability. For most employees, workers who are placed in this category are entitled to up to 2/3rds of the average weekly wage for up to 500 weeks. This type of settlement commonly entered by workers who have the ability to engage in some kind of work, but are unable to return to their pre-injury job.  Workers must prove that they are unable to find suitable work with these restrictions may seek a clincher agreement.

 

  • Permanent Partial Disability Settlements, or ‘ratings only’ settlements. This category is for employees who can return to work but not the same job or same pay as before the accident or occupational illness. The amount of your weekly benefits is based on an impairment rating and your type of injury.

 

 

  • Partial Incapacity Settlements. Some workers who achieve maximum medical improvement can return to work but at a lower pay. They are generally entitled to the 2/3rds of the difference between the lower current pay and higher pre-accident or pre-occupational disease pay. Most workers, except those with very old claims, are entitled to this sum for up to 500 weeks.

 

  • Death Benefits to Survivors. If a worker dies, the spouse and/or other relatives may be entitled to long-term benefits which can be paid in a lump sum. An experienced work injury lawyer can explain what benefits are allowed including the costs of the funeral and who is entitled to the benefits.

How are future medical bills addressed in a clincher agreement?

 

It is typically not advisable for a worker to settle his or her workers’ compensation claim if the worker has not reached maximum medical improvement. Additional surgeries, treatments, and therapies may improve your condition. They can be quite expensive. You shouldn’t forfeit the right to get as healthy as you can by having the employer and insurance company pay for that treatment. Then again, each and every case is different. 

You may feel, for instance, that your skill set will enable you to obtain an alternate job where you can find health insurance which will likely cover future costs, in which case, it may make sense for you to examine settlement. 

Once workers have achieved their maximum health, some may not need additional medical care – for example, if they broke a bone and the bone has healed. Many workers, however, will need continuing health care to prevent their condition from getting worse. This is especially critical for workers with occupational diseases which often worsen with time. Workers with chronic injuries or other physical injuries may need constant help. If a worker needs a prosthetic, the prosthetic may wear out with time. The cost of medications must be part of the overall clincher settlement agreement.

There is always some risk in settling your case if you need more medical care. An experienced workers comp attorney can help you make an estimate as to what your future medical bills will be.

In any event, once it is determined that a full and final settlement of your case may be advantageous, your attorney will help calculate your future medical costs related to your injury by first estimating our life expectancy. This can be done by relying on certain statutes in North Carolina that actually provide the average life expectancies for both males and females each year across the State. 

Are there other issues to consider in a worker’s compensation clincher agreement?

One complicated problem is how your Medicare benefits and Social Security benefits are figured since many workers may be eligible for both Medicare and workers’ compensation benefits if they have a lifetime disability or were older when they first applied for work injury benefits. This is typically handled through something called a Medicare Set-Aside Arrangement or MSA. Basically, if you are a current Medicare recipient or if you are on Social Security Disability, you cannot settle your workers compensation claim without taking into account Medicare’s interests. 

Also, if you’re going through a divorce, you’ll need to review your marital rights with a family lawyer.

North Carolina Workers’ Compensation Attorney Joe Miller Esq. has been fighting for injured workers in North Carolina and Virginia for more than 30 years. He is highly respected by his legal peers and former clients. He’ll fight to get you every dollar you deserve. He’ll contest any effort by the employer to terminate or reduce your benefits. Call attorney Joe Miller today at 888-667-8295. or use my contact form to schedule an appointment. 

 

Frequently Asked Workers’ Compensation Questions

Posted on Monday, July 1st, 2019 at 10:29 am    

Workers have the right to ask questions about their workers’ compensation claim. Experienced work injury lawyers are happy to answer all your North Carolina and Virginia workers’ compensation questions.

Anyone who is injured while working on their job has questions about their rights. Anyone who suffers an illness due to workplace conditions needs to understand their rights. The best advice for any employee who becomes injured or ill working is to make an appointment with an experienced North Carolina or Virginia workers’ compensation lawyer. He can answer your questions, guide your through the workers’ compensation process, and advocate on your behalf.

Some of the more common questions, employees have about workers’ compensation include:

Who can benefit from workers’ compensation?

Generally, only employees of a company can file for work injury benefits. Independent contractors are typically not eligible. The good news is that the employer does not get to decide who is an employee or an independent contractor. The work relationship is determined by a variety of factors. The main factor is whether the employer controls the work performance of the worker or if the worker controls how he/she does their job. Some of the additional factors that determine whether a worker is an employee or not are who provides the tools to do the job, who controls the hours of performance, and how the worker is paid.

Employers with only one or two employees may not be required to carry workers’ compensation insurance. Larger workers normally must have workers’ compensation insurance for each of their employees. As with most laws, there are some exceptions.

Must I show the employer was negligent?

No.  Workers’ compensation in both North Carolina and Virginia is a compromise. The employee only must show that an accident happened at work or that an illness is due to unique workplace conditions. The employee does not even need to show the employer failed to follow normal business safety standards. The trade-off is that the employee cannot make a claim for “pain and suffering” damages. Also, workers generally only get 2/3rds of their average weekly wages during the time they can’t work – and not the full 100%. There are also caps on how much an injured or ill worker can receive, typically up to 500 weeks.

There are a few exceptions. In Virginia, employers may challenge the right of a worker to demand work injury benefits if the worker intentionally caused his or injures – such as through getting into a fight with a coworker or getting into an accident while intoxicated. In North Carolina, any such showing will reduce the recovery by 10%. 

Also, in North Carolina, there was once an exception if the employer could be found to be guilty of intentional misconduct that caused the accident. The misconduct has been interpreted as meaning that the employer must have been substantially certain that the conduct that the employee was ordered to engage in would result in injury or death.  In those circumstances, there was once some possibility that the employer in North Carolina could be sued directly. This was known as a Woodson claim, named after the poor gentlemen who was ordered to his death by his employer, straight into a ditch the employer knew was about to collapse. 

Unfortunately, in more recent times, it has been widely recognized that the North Carolina Court of Appeals has essentially eliminated any possibility that one of these Woodson claims will ever see the light of day. 

What are the standard work injury benefits?

Injured workers typically receive two types of benefits:

  • Medical compensation. The goal of workers’ compensation is to help the worker return to his or her job. Workers who are injured often start their medical care by going to the local emergency room. If there is a severe problem, they may be admitted to a hospital for tests and for surgeries. Patients then can treat with their family doctor and any specialists who might reasonably help them heal. Specialists include pain management physicians, orthopedist, neurologists, cardiac care doctors, psychologists, psychiatrists, and other doctors. 

 

Patients who are injured at work also usually treat with chiropractors, physical therapists, vocational therapists, and other health care providers.

 

These medical care providers should submit their bills to the employer’s workers compensation insurance carrier. The insurance carrier has a duty to pay these medical bills if they are reasonable, medically necessary, and related to the injury.

 

Other types of care that the insurance company should cover include the cost of medications and medical devices.

 

  • Wage loss compensation. Workers typically in both North Carolina and Virginia are entitled to receive 2/3rds of their average weekly wages during the time they can’t work. This is generally referred to as temporary total disability (TTD). There are caps on the amounts so that workers who earned too much money will only receive the cap limit. There are also limits on how long benefits can be paid –up to 500 weeks in Virginia and North Carolina. 

 

Workers who have a partial temporary disability and who can return to work receive at a lower-paying job receive 2/3rds of the wages they lose by accepting the lower paying job. This is called temporary partial disability (TPD). 

 

Workers who are no longer receiving TTD and have a permanent disability in a specific body part may be entitled to pay based on the type of disability they have in that body part. This is referred to as permanent partial impairment (PPI). Payments are made according to a percentage disability rating and a scale of weeks set forth via statute, depending on the type of disability (such as hearing loss or the loss of use of a hands, feet, arms or legs) and the degree of impairment.

Injured and ill workers may also be entitled to vocational rehabilitation; however, although this is technically a benefit it is usually not helpful to an injured workers case. It is typically utilized by the workers compensation insurance company to “trip up” the injured worker or apply pressure to settle the claim, or reduce the liability of the workers comp insurance company by finding a job-ANY job—for the injured worker. Voc Rehab is typically employed with workers who aren’t expected to return to the same type of job they did before the injury. 

Which doctors must I see? 

Normally, in Virginia, the employer will have a panel of three doctors for each type of injury or illness – starting with a list of family care doctors. Employees must choose one of the physicians on the list of doctors – for their type of injury or illness. If a referral is needed to a specialist such as an Orthopedic or Neurosurgeon, then additional panels must be provided by the workers compensation insurance company. 

In North Carolina, unfortunately, there are no panels, rather, the insurance company usually chooses a treating physician. 

If there is a good reason, then employees can seek permission from the Commission to see a doctor of their own choosing. A good reason may be that it is clear the doctor isn’t helping the injured worker get better he or she is still in pain – and still can’t work. Experienced North Carolina and Virginia work injury lawyers often have working relationships with a variety of physicians. The lawyer may be able to seek approval to switch to one of these doctors – or to an independent new doctor. 

In Virginia, this process is not easy. It really depends whether the authorized treating doctor has indicated that he or she no longer wants to see the injured worker. If the authorized treating doctor has not released the injured worker from care, for instance by saying “prn” in their office notes which means “patient may return as needed,” then it may be more difficult to seek a switch. 

Although there is no means to obtain a “second opinion” of a doctor formally through the Workers Compensation Commission by injured workers in Virginia, workers are free at any time to seek alternative care at their own cost. 

In North Carolina, there does exist a process to obtain an Independent Medical Examination—at the expense of the employer. 

Lawyer Joe Miller has helped thousands of injured and ill employees get their full workers’ compensation benefits. He represents workers in North Carolina and Virginia. He’ll answer your questions and explain the workers’ compensation process. He’ll work aggressively to help you get all the benefits you deserve. To review your case now, call  attorney Joe Miller at 1-(888) 667-8295 or use my contact form to schedule an appointment.

Vocational Rehabilitation Rights for North Carolina Workers

Posted on Thursday, June 27th, 2019 at 10:21 am    

Workers who can’t return to their old job may be entitled to vocational rehabilitation benefits. Vocational rehab benefits can include the cost of being retrained or to obtain additional education.

In most North Carolina workers compensation cases, injured and ill workers are compensated in two ways:

  • They are compensated for their medical bills. These are the hospital, doctor, and therapy bills the worker’s care medical providers are due – for helping the worker return to work to maximize their health. Medical bill payments also include the cost of drugs and medical devices.
  • They are paid for a portion of their lost wages. Generally, workers are paid 2/3rds of their average weekly wages up to 500 weeks. There are adjustments in the pay depending on whether the worker has a total or partial disability – i.e., whether the worker can return to a lower paying job with work restrictions, or remains totally disabled from work. 

Some workers, however, are not able to return to their pre-injury job because of their injuries or work-related illness. Sometimes, the worker’s doctor will authorize work with restrictions, otherwise referred to as “light duty,” – but the employer won’t be able to accommodate the restrictions. Since the goal of workers’ compensation is to help the worker earn an income, North Carolina offers another option called vocational rehabilitation.

For example, often workers who work in construction or industry depend on being physically fit to do hard physical labor. If a worker severely injures his or her back, loses function in a hand, or loses an arm; the worker can no longer do these jobs. With proper education, though, the worker could be re-trained to work in a clerical or administrative job. The worker might be able to learn technical skills that could be useful to many companies in the same job sectors or different job sectors altogether. 

Of course, the success of much of this depends on the age and current educational level of the injured worker. A 29-year-old worker is far more likely to be capable of re-training than a 59-year old laborer without a high school education. Usually, the injuries are more severe and pronounced in the older worker, and as they say, it is harder to teach an old dog new tricks. 

How vocational rehabilitation is defined

Worker’s compensation includes services that are designed to help a worker obtain suitable employment. These services typically include:

  • An assessment of the workers job skills, education, and abilities.
  • Determining what type of new job the worker could do if he/she was properly trained.
  • Reviewing the skills, degrees, and certifications that could help the worker obtain work in a new field.
  • Identifying the problems that restrict a specific worker from doing certain physical or mental tasks in a job.
  • Understanding what community college or other classes might help the worker learn new skills.
  • Understanding what college programs could help the work.
  • Providing counseling for workers looking for a new job – such as how to interview, where to apply, and how to prepare a resume.

Generally, the way it works is in accepted claims, when the worker reaches maximum medical improvement and is provided with permanent work restrictions by his or her doctor, if the employer is unable or unwilling to accommodate the injured workers’ restrictions, a vocational rehabilitation assessment will be ordered by the workers comp insurance company. 

Although these services one would think are a benefit, usually, the carrier will avoid paying for items that might truly assist in improving the worker’s skills and their ability to get a new job, such as education from a Community College or a degree from one of North Carolina’s many great universities. When Vocational Rehabilitation was classed as medical treatment back in 2011, many thought this would indicate a change in the way Voc Rehab could be used in North Carolina. 

Alas, this change has not come to be. This is because the true purpose behind most vocational rehabilitation situations is to stop benefits to the injured worker based on the injured worker’s failure to comply with the plan, or otherwise to apply pressure on the injured worker to settle his or her case as soon as possible. Often, the vocational counselor can be extremely annoying, sending seemingly endless streams of emails and calls and constantly hounding the injured worker to engage in job searches. This is by design. 

Who provides the Vocational Rehab Services

Normally, an approved vocational rehab specialist must be approved to work on behalf of the injured worker. Vocational rehab specialists are generally paid for their services in the same way doctors paid. The specialist helps identify the workers’ abilities, skills, the type of new skills needed, and course selection. This is typically done in an initial assessment, which is usually attended by the injured workers’ attorney as well. There may be written testing to determine the skill level of the employee with regard to the worker’s math and/or language skills. 

Subsequently, the vocational rehab specialist also assists monitors the worker’s success in applying for jobs and attending interviews. In some cases, this may include providing job leads to be followed up on by the injured worker, as well as scheduling actual job interviews. 

Technically, vocational rehab specialists do not work for the employer – though the progress the worker is making will be reported to the employer and the injured worker. But they do work for the workers compensation insurance company and this needs to be understood.  

If the vocational rehabilitation specialist is not helping the worker obtain suitable skills or suitable employment by, for instance, continually requiring the injured worker apply for jobs that are no longer available or which are clearly beyond the physical capability of the worker–the employee can seek to have a new vocational rehab specialist appointed. 

Generally, the rehab specialist will begin by preparing a return-to-work plan. The return to work plan should review all possible job options including:

  • Keeping the current job with the current employer
  • Getting a new job with a current employer
  • Job training with a current employer
  • Suitable employment with a new employer
  • Job training with a new employer
  • Vocational rehabilitation to get ready for a new job
  • Other possibilities including self-employment

Workers who refuse to comply with a vocational rehab plan ordered by the North Carolina Industrial Commission  may lose their compensation benefits until they do comply with the plan.

Most workers comply with new training requirements. They may object to unreasonable demands by the specialist – such as applying to jobs they have no chance of getting.

Experienced North Carolina workers’ compensation lawyers understand when it is likely that a vocational rehabilitation expert will be hired and how to prepare the injured worker in dealing with the often rigorous demands of vocational rehabilitation.  

As with most laws, some exceptions may apply – some severely injured workers may not be required to learn a new trade or skill – because there’s no reason to expect they will be hired. In other words, if it would be futile for the injured worker to be required to engage in vocational rehabilitation, due to their level of impairment, lack of education, and age, then a motion may be made by the attorney to excuse the injured worker from having to participate in vocational rehabilitation. 

The employee does not have to reach maximum medical improvement in order to be required to engage in vocational rehabilitation. Generally, employers or employees can ask for vocational rehabilitation if the worker hasn’t returned to work or if he or she is earning less than 75% of his/her average weekly wages and are receiving other approved benefits.

The vocational rehabilitation plan should be in writing and tailored to the individual worker’s needs.

Attorney Joe Miller fights for all injured workers. He has decades of experience working with vocational rehabilitation specialists. He understands when employers and insurance companies are truly interested in helping an employee get a new job and when the employer (or insurance company) is just trying to terminate a worker’s benefits or apply pressure to settle.  To learn if you are likely to end up in vocational rehabilitation, call attorney Joe Miller at 1-(888) 667-8295 or use my contact form to make an appointment.

Why You Should Call a Workers Compensation Attorney

Posted on Tuesday, June 25th, 2019 at 2:05 pm    

Attorney Joe Miller explains why you need an attorney if you are injured or hurt at work:

Read the full video transcription here.

Regenerative Medicine, PRP Therapy and Workers’ Compensation Claims

Posted on Tuesday, June 25th, 2019 at 10:21 am    

Many new regenerative medical treatments are being used to treat pain by using the body’s own repair mechanisms. Regenerative medicine is helping injured workers return to better health – when standard health remedies just don’t see to work.  Many athletes in a wide variety of sports are already using regenerative medicine so they can get back to the basketball court, tennis court, or playing field earlier than they usually could. 

Regenerative medicine has been used in the past. It’s been used for organ transplants and bone marrow transplants. Newer sciences and technologies are helping regenerative medicine expand the possible solutions to helping individuals, including workers, with serious health problems.

Regenerative medicine is a methodology that helps the human body regenerate, replace, and even engineer human cells, tissues, and organs. The key behind regenerative medicine is that the body uses its own repair methods to heal parts of the body that were previously thought to be incapable of healing. Regenerative medicine now includes helping tissues and organs grow in a laboratory so they can be later implanted inside humans. In this way, regenerative medicine can reduce the dependence on relying on foreign donors and the complications with the body accepting a foreign tissue or organ.

Regenerative incorporates many sciences including computer science, genetics, chemistry, biology, and robotics.

Different types of regeneration

There are different types of regenerative medicine:

  • Rejuvenation. The aim with this type of medicine is to help the patient’s body heal itself. A common example is when you suffer a cut and the skin heals around the cut. Scientists are now using a person’s own cells to help nerves and even organs self-heal
  • Replacement. This type of regenerative medicine uses cells, tissues, and healthy organs from a donor (living or recently deceased) to replace the damages cells, tissues, or organs. Some transplants, such as liver and heart transplants, are fairly common. Regenerative is more than just the transplant. It is the goal to help the transplants work better by minimizing complication such as rejection or infection.
  • New regeneration. Here, cell-therapy is the mechanism for delivering cells to diseases parts of the anatomy. The cells then help restore the damaged areas of the body. Stem cells are used for this type of regenerative medicine. Stem cells can be developed/used to regenerate brain cells, lung cells, skin cells, and other cells.

The most common types of stem cells are adult stem cells (the worker/patient uses his/her own cells) and embryonic stem cells. Stem cell sources can be used from blood, bone marrow, fat, skeletal muscle, and other sources. Some stem cells are more versatile than other stem cells. New methods and techniques are constantly being developed and refined.

Another type of regenerative is platelet-rich plasma (PRP) therapy

Another type of regenerative medicine is the use of PRP therapy. PRP is usually combined with diet and physical therapy.

The idea behind PRP therapy is that you blood includes plasma (the red liquid part), white and red cells, and platelets. The platelets help blood clot. They also have proteins which are a key ingredient in helping injuries health. The PRP technique aims to enrich the plasma with the beneficial platelets. The enrichment method uses your own blood – which works much better than using somebody else’s blood.

The main steps used to enrich the plasma with the platelets are:

  • Blood is taken from you (in the same way it is taken when you have a blood test).
  • The blood is then prepared. The platelets are separated so their concentration level can rise. A process called centrifugation is used to separate and improve the concentration level of the platelets.
  • The PRP combination is then used to treat the part of the body that needs repair or help. Doctors generally use a fluoroscope to guide the PRP injection into the correct spot
  • The doctor usually injects the PRP with a local anesthetic to reduce the initial discomfort.
  • It can take a few weeks before the patient begins to experience improvement.

PRP is also sometimes used after a patient has a surgery to improve the ability of the patient to heal.

PRP therapy has been shown to help patients with muscle, tendon, and ligament injuries. It is helping patients with chronic pain. The ability of PRP to help with other injuries such as fractures is still being researched.

Many patients need multiple injections – two to six. Workers who undergo PRP therapy usually experience little pain with the process. The PRP process is minimally invasive. Often, it can be done in an ambulatory surgery center instead of a hospital. Often, if a worker does experience pain, an anti-inflammatory medication can help.

The good news is that when PRP works, the relief is long-term. Patients who have PRP therapy should generally avoid exercise until the healing process is finished (additional time isn’t making the patient feel any better). A key advantage to PRP therapy is that by using your own blood, patients shouldn’t experience allergic reactions.  There is a possibility of infection, bleeding, and nerve damage. PRP is not an initial remedy. It is usually recommended only after more standard treatments fail to work.

At the North Carolina and Virginia Law Office of Joe Miller, Esq. we work with your doctors to understand your medical problems, and to understand what treatments you need. Often, employers will try to force you back to work before you’re ready. We work with your physicians to show that you do more time to explore all the options available to improve your health for the long-term. For help with all parts of you workers’ compensation claim, call attorney Joe Miller at 1-(888) 667-8295 or complete my contact form to schedule a free consult.

Back Pain and Workers’ Compensation

Posted on Tuesday, June 25th, 2019 at 9:20 am    

Experienced work injury lawyers fight for workers with acute and chronic pain. Back injuries are a very common type of workplace injury. Back pain affects most every type of worker including nurses, construction workers, retail clerks, firefighters, police officers, anyone who stands for long hours, and anyone who moves any type of heavy object. Motor vehicle accidents can also cause back pain. 

Often, back pain is due to a specific accident such as a fall or lifting too heavy an object. Back pain can also be due to an event that makes an existing back problem worse. A few of the events that can cause back pain include:

  • Moving and shifting patients from a bed to another bed or a wheelchair
  • A slip and fall due to wet floors, a tool or object on the floor, poor lighting, or many other reasons
  • Lifting, pulling, carrying, or pushing heavy objects
  • Repetitive injuries

It should be pointed out that Workers Compensation generally does not pay for repetitive stress injuries and this rule applies to back injuries as well. Unless the injured worker can point to a specific, identifiable event that caused the back pain, or in Virginia, at least a discreet set of work that caused the pain during a very narrowly defined time frame, the back injury will not be deemed compensable. 

Chronic pain is generally pain that lasts for more than a few months. 

Back pain can be due to many different types of conditions including:

  • Sciatica
  • A narrowing of the disc space
  • A herniated disc
  • Bulging discs
  • Facet syndrome
  • Spondylolisthesis
  • Scoliosis
  • Sacroiliac joint dysfunction
  • Spinal cord damage

Back pain is often accompanied by muscle pain, nerve damage, and damaged tendons.

When a back pain injury causes you to stop working, be sure to inform your supervisor and arrange to speak with an experienced workers’ compensation lawyer. 

The most important thing is to think very hard about the precise moment that the back pain started. What were you doing? What were you lifting? Was it heavy? Unless you can narrow the cause of the pain down to a specific, identifiable event at a specific time, you will likely not be able to recover. 

Also, in Virginia, you need to know that normal movements that anyone would do such as bending down, twisting, or kneeling, will not lead to a good, or compensable claim. This is because they do not involve a risk of employment. In other words, the accident could have happened anywhere. The cause must be something that is a specific risk related to work, such as lifting a very heavy object, or person. 

Treatment for back pain

Some back pain improves with non-surgical remedies. Other types of back pain ultimately do require surgery. Workers with pain often work a variety of doctors and healthcare professionals including:

  • Pain management doctors
  • Neurosurgeons
  • Physical therapists
  • Chiropractors
  • Acupuncturists
  • Orthopedic doctors
  • General physicians
  • Gerontologists

Treatment can take weeks, months, or years. Some workers never recover from their back pain.

A few at-home and short-term remedies, according to Spine-Health, include:

  • Resting. Short-term rest can help. If your back doesn’t improve after a few days, you should seek medical attention. Too much rest can aggravate a bad back.
  • Modifying your activity. You should check with your doctor before starting any activity. Your physician may recommend gentle stretches and some walking.
  • Heat and ice therapy. Often heat from an electric heating pad, a hot water bottle, or a warm bath can help improve the flow of blood or relax muscles that are tense. Increasing blood flow helps bring oxygen and nutrients to damaged muscles. Cold packs or ice packs are usually used to reduce inflammation and reduce swelling. When applying heat or ice, it’s best to wrap the device or encase it some way say the heat or ice doesn’t come in direct contact with the skin. Your doctor can explain when its best to use heat and when you should use ice. Generally, heat is used before any exercise regimen or activity. Ice is used after the exercise or activity.
  • Over-the-counter medications. Anti-inflammatory medications can help reduce low back pain which is due to swollen muscles or nerves. Some common anti-inflammatory medications include ibuprofen, aspirin, and naproxen. Bayer is one type of aspirin. Advil is a brand of ibuprofen. Aleve is a type of naproxen. Another type of medication doctors use for back pain management is Acetaminophen, otherwise known as Tylenol.  
  • Muscle relaxants. These medications don’t directly reduce chronic back pain. They can help relieve muscle pain.
  • Narcotics. Doctors may prescribe narcotics if standard medications aren’t helping. This area of medical treatment has become more complicated because the dangers of such drugs as opioids are often much worse than the short-term benefits. Opioids can be addictive and cause abuse and overdoses.
  • Back braces. For some workers, a back brace, worn on a daily basis, when used with physical exercise can help reduce pain and increase the healing process. 
  • Epidural steroid injections. This is an outpatient type of injection often performed in an ambulatory surgery center. The procedure is done with the use of medical device called a fluoroscope. The fluoroscope guides the needle to the right spot where it delivers medicine and a steroid to the damaged nerves. The injection helps to reduce inflammation near the compressed nerve root. Often patients with back receive several epidural steroid injections spaced out over time. Usually, they are done in a series of three, and then another set is not done for at least another six months. 
  • Physical therapy. Trained therapists can help develop an exercise routine that can help strengthen parts of the body around the back so the back doesn’t need as much support.
  • Psychological and psychiatric care. Some patients with acute or chronic pain suffer from anxiety, irritability, and depression because they worry about how their pain is affect others and whether they will ever get healthy. Treatment sessions with psychologists can help workers cope with a reduced lifestyle and less ability to function.

Surgeries for back pain

Some workers require back pain surgery to relieve their pain. There are different types of surgeries depending on the location and severity of the pain. According to Spine-Health

“A decompression surgery removes whatever is pressing on a nerve root from the spinal column, which might include a herniated portion of a disc or a bone spur. There are two primary types of decompression for low back pain. 

  • Microdiscectomy is a minimally invasive procedure for patients with a lumbar herniated disc causing radicular leg pain (sciatica). 
  • A Laminectomy removes part of the layer of the bone or soft tissue that is compressing a nerve or multiple nerve roots.”

Other possible surgical options for back pain include:

  • Fusion surgery which “removes the soft tissues between two or more adjacent vertebral bones and replaces them with bone or metal. This procedure enables the bones to grow together over time—typically 6 to 12 months—and fuse into one long bone to stabilize and eliminate motion at those spinal segments.”
  • Replacing a disk with an artificial disc.
  • Spinal stimulator implants which allow the patient to use electrical impulses to monitor their pain.

    Compensation for Back Injuries: North Carolina vs. Virginia 

Insofar as back injuries, North Carolina and Virginia basically agree on what constitutes an “injury by accident” only in the area of back injuries. 

Normally, in North Carolina, an injured worker must first show what the Industrial Commission and Courts in North Carolina define as an “accident” that preceded the injury. An “accident” in North Carolina normally must occur through a “slip, trip or fall” in order for an injured worker to recover for any work injury. 

Virginia, on the other hand, is more liberal in this one area and only requires that the injured worker show an identifiable accident that occurred at a reasonably definite time and that a “sudden mechanical change” in the body occurred. There need not be any “slip, trip, or fall.” Virginia focuses more on the notion of whether the injury arose from a “risk of employment.” 

Yet with respect to back injuries, North Carolina has carved out an exception. For back injuries in North Carolina, the law is much like Virginia, and the injured worker need only show a “specific traumatic incident” that led to the back injury. 

Also, as is well known, when it comes to permanent partial impairment ratings, Virginia provides no ratings for the back, or any spinal injury. Yet for reasons that remain a mystery, in North Carolina, the “back” as it is referred to—which is interpreted as including the entire spine—actually has the highest potential impairment rating of any body part, up to 300 weeks. Why? You will have to ask the legislators that came up with those laws. 

 

Attorney Joe Miller has helped thousands of injured workers in Virginia and North Carolina get the compensation they deserve. Compensation includes obtaining the right amount of wage loss compensation and payment for all necessary medical bills. Compensation also means fighting for workers who have long-term health problems and problems that just don’t seem to have a cure. To review your claim now, call attorney Joe Miller at 1-(888) 667-8295 or use my contact form to schedule an appointment.

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