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.

Additional Frequently Asked Questions regarding North Carolina or Virginia Workers Compensation Benefits

Posted on Friday, January 4th, 2019 at 12:41 pm    

Some more answers to commonly asked questions when workers are injured in North Carolina or Virginia include the following:

How long can I receive worker’s compensation benefits?

The maximum insofar as the weekly checks are concerned is generally up to 500 weeks, but other than the most severely injured workers, most will stop receiving benefits long before the end of the 500 weeks.

When a worker reaches maximum medical improvement, then an analysis is made of the worker’s physical health. Maximum medical improvement is the time when additional medical treatment isn’t expected to improve the worker’s health or physical capacities any further.

During the analysis, referred to as a Functional Capacity Exam (FCE) a judgment will be made whether the worker has a permanent disability of any kind such as hearing loss or the loss of a body part and whether the worker is suffering from permanent physical restrictions.  If a worker has a partial permanent disability, the worker may be entitled to additional wage loss benefits, even if he or she is able to return to work.

Workers can receive medical benefits for as long as they need medical help. Even if they have reached maximum medical improvement, they can still treat with doctors so their health doesn’t get any worse. Many injured workers who hurt their back, for example, may benefit from continual physical therapy or pain management.

Do other claims/benefits affect my worker’s compensation benefits?

Workers may be entitled to a pension, to social security, or to a personal injury accident settlement or award.  If you are undergoing ongoing treatment and disability, you should NEVER settle your personal injury case before your workers compensation claim is fully settled and resolved. Doing so will essentially end your workers compensation case because of very harsh setoff rules.

Insofar as Social Security Disability, there are sometimes when it is advisable to make a claim, such as when your comp claim is denied and it may take a long time to get you money. In either event, a workers compensation attorney who knows what he or she is doing can make sure you’re your settlement will only minimally effect your rights to file and still obtain Social Security Disability benefits.  Your North Carolina or Virginia worker’s compensation benefits lawyer can explain if any of these benefits affect your worker’s compensation case.

Are worker’s compensation benefits taxable?

Generally, worker’s compensation benefits are not taxable. If you receive Social Security disability insurance (SSDI) or Supplemental Security Income (SSI) or Social Security Disability (SSDI) and worker’s compensation, then some tax issues may arise depending on the amount of the combined income.

What happens if the accident happened away from the employer’s main site?

The main requirement is that the accident occur during the scope of your employment. This can be complicated sometimes. If you are commuting to work, you may not be eligible unless you were doing a work chore for the employer or you are picked up by a supervisor and transported to the job site.  If you are a sales representative, then it’s pretty much a given that you won’t be at the company site during work hours and you would still be covered. You are generally covered if you are on the employer’s premises, even if you take a brief break from work and your employer agrees to such breaks. There are many just reasons for a worker to be away from the main job site and still be considered working on the job, such as being sent on an errand for the employer.

What is an impairment or permanency rating?

This is an analysis of the worker’s loss of ability to function. It can apply to any part of the worker’s body. Doctors generally use impairment guidelines created by the American Medical Association to determine the percentage (impairment rating) loss of function. Workers with a permanent disability are generally entitled to additional work loss benefits if they lose function. The impairment rating adjusts the entitled amount by the percentage loss. For example, if a work loses the ability to hear, then the worker is entitled to an additional number of weeks benefits. If the impairment rating (the loss of hearing) is 10%, then the benefit amount may be just 10% of the total additional weeks of pay, as set forth in the statute books.

What are the different types of disability?

Generally, work injury disability falls in the following categories:

  • Temporary total disability.  (TTD) These benefits are paid while the worker is injured and unable to return to work, and receiving medical treatment to get better for a maximum of 500 weeks. Workers are normally paid 2/3rds of the average weekly wages while out of work, or sometimes even on light duty, if the employer is unable or unwilling to accommodate the employee’s light duty restrictions.  
  • Temporary partial disability (TPD) These benefits are paid when the worker’s physical restrictions prevent him or her from returning to pre-injury employment, but the worker or the vocational rehabilitation counselor finds the worker a lesser-paying job that accommodates the worker’s restrictions. In those cases, the worker is entitled to 2/3rds of the difference between the light duty job pay and the pre-injury job pay.
  • Permanent & total disability. These are additional weekly benefits payable at the 2/3rds rate beyond the 500-week limit, to potentially lifetime TTD benefits, if a worker can never return to any type of work because of his or her work injuries Workers may be entitled to lifetime payments based on the type of disability they have – if they have an special loss or disfigurement of two or more ratable body parts, a serious brain injury, are paralyzed, or have suffered extremely severe burns. In Virginia, one must suffer an injury in one of those categories to be considered permanently and totally disabled. In North Carolina, those categories also qualify for permanent and total benefits.
  • North Carolina “Extended Compensation.” In North Carolina (not in Virginia) there is an additional category known as “extended compensation.”  An injured worker may qualify for extended benefits beyond the 500-week limit, and proof may be offered to receive such benefits once the worker has reached 425 weeks of TTD benefits.  At that point, a motion may be made for the worker to be declared entitled to extended benefits beyond the 500-week limit, but the worker must show that he or she has suffered a total loss of wage-earning capacity. The big difference with extended benefits vs permanent and total benefits is that any serious injury may qualify—it does not have to belong to one of the permanent and total categories; however, the ongoing extended compensation may be challenged by the insurance company at any time, if the insurance company and employer can show that the employee no longer has a total loss of wage earning capacity.
  • Permanent partial disability or impairment. (PPI) These are the ratings benefits that a worker may be entitled to, based on injury to a ratable body part. In Virginia, this generally refers to the extremities, but does not include injuries to the spine. In North Carolina, these DO include injuries to the spine and the extremities as well. The physician typically rates an injury through the use of a Functional Capacity Exam (FCE) and comes up with a percentage rating of impairment. Then one looks at the statute to determine how many weeks of TTD payments the worker is entitled to based on that percentage rating. Generally, ratings are only important in two instances. One is where the worker has returned to work. This is because in any event, the maximum once can receive is usually 500 weeks. The 500 weeks cannot be increased through the use of ratings.

The other circumstance where ratings are important is if a worker has a rating to two or more ratable body parts. That could qualify the injured worker for permanent and total disability.  

Do I need a workers’ compensation attorney?

Yes. While employees can file their own claim, there are many reasons why it’s wise to hire an experienced North Carolina or Virginia work injury lawyer. Skilled work injury lawyers help with following:

  • They make sure you process your claim correctly
  • They understand how to verify your employee status if it is challenged by the employer
  • They work to show the accident or illness was work-related
  • Skilled lawyers help you get better assistance from your doctors when company doctors aren’t helping
  • They present your case before a hearing office if it is contested
  • They work with your physicians to verify your inability to work and why you still need medical care
  • They contest efforts by the employer or employer insurance company to force you to return to work when it is not medically feasible
  • They explain what a nurse case manager does and what the manger can’t do and prevent them from managing your care against the advice of your treating physicians
  • They help verify what type of disability you have and make sure you are paid accordingly
  • They work with vocational professionals when necessary to make sure they are doing their job in accordance with guidelines established by the Workers Compensation Commission.

Experienced attorneys guide you through each stage of the litigation process. They also explain when you can make a long-term settlement and what the terms of that settlement should be.

Experienced work injury lawyers understand how to question and cross-examine witnesses.

In most cases, a skilled worker’s compensation helps the client get a just recovery – one that is much better and stronger than the recovery the client would obtain on his or her own.

What is discovery?

The injured worker and the employer both have the right to certain types of information in order to prepare their case for trial. The lawyers for each side can request:

  • That the other side answer written questions called interrogatories.
  • That the parties answer oral questions called depositions. These questions and answers usually take place before a Court Reporter or stenographer who transcribes the oral Q and A into a written document.
  • That each side produce certain types of records such as wage-earning records and medical bills and reports through something called requests for production
  • To Subpoena certain documents if necessary from health care providers or other third parties whose information is needed to proceed with the claim.

Attorney Joe Miller Esq. has the experienced and resources to help injured workers get justice. He anticipates many of the arguments insurance adjustors and defense lawyers make. He’ll fight to help you get the wage loss benefits, medical bill payments, and other benefits you deserve. To make an appointment or have your claim evaluated in our 7-step elite and easy case evaluation process, please call 1-(888) 667-8295 or fill out my contact form.

Common Questions about Worker’s Compensation

Posted on Wednesday, December 26th, 2018 at 9:21 am    

Injured workers have many questions about whether they can file a claim, how to file a claim, and what benefits they’re entitled to. Claimants worry about which doctors they can treat with. They wonder what actions the employer’s insurance company can take to force the worker back to work or to terminate his/her benefits.

For the best advice, make an appointment with an experienced North Carolina or Virginia work injury lawyer. Here are some of the many questions workers often ask and some of the answers to those questions:

What exactly is worker’s compensation insurance?

Decades ago, the states agreed to a compromise in how work accident claims are handled. Injured workers used to have to prove the employer was at fault – that they caused the worker’s injuries. If a worker could prove fault, the worker would be entitled to lost wages, medical bills, and pain and suffering damages.

The compromise method helps workers get compensation quicker and helps employers avoid large jury awards. The compromise is that workers don’t have to prove the accident was the employer’s fault. They just have to show an accident happened at work. In return for waiving the liability duty, employees only get about 2/3rds of their wages instead of 100%. They also can’t make a claim for pain and suffering against the employer. Workers are entitled to have the costs for all their medical bills covered as a result of the accident—for life. This includes surgeries, doctor visits, long-term therapy, and other types of medical services. It also includes the cost of medications and any prescribed medical equipment. Workers may also be entitled to vocational retraining benefits if they can’t work at their prior job.

Are there time limits for notifying the employer?

Generally, workers should notify their employer or a supervisor as soon as possible – verbally and in writing. In North Carolina and Virginia, workers are required to provide written notice within 30 days of the accident. This is usually done in the form of an Accident report.

Is there a time limit for filing a claim?

Yes. North Carolina and Virginia both have a statute of limitations for when claims can be filed. You generally have two years to file your claim from the date of the accident. DO NOT BELIEVE your employer if they say they have “filed everything for you.” There is NO SUCH THING. Only YOU or your workers compensation attorney can file the appropriate paperwork to insure your rights are protected.  If you were hurt at work, you should make the call to a work injury lawyer as soon as possible.

When does a worker become eligible for state worker’s compensation benefits?

Workers aren’t entitled to compensation for the first seven (days) unless their disability is more than 21 days. If the worker is out of work for less than three weeks, then the worker isn’t entitled to lost wages for those first seven days.

Who is entitled to worker’s compensation?

As a general rule, the worker must be an employee – not an independent contractor. Some exceptions may apply. Often, an experienced work injury lawyer will fight to show that someone who the employer labeled as an independent contractor is really an employee. Whether someone is an employee or independent contractor basically depends on how much control the employer had over their worker’s job duties. Signs of control include saying when and where the worker must work, how the worker is paid, what tools the worker uses, and other factors. Some employers think they can get around this by having the employee sign some silly agreement that says the worker understands that he or she is an independent contractor and not an employee. Those agreements are WORTHLESS. The Commission will look at the facts on the ground. The employer cannot “contract away” their obligations under the law.

What are the standard wage loss benefits?

In general, workers are entitled to 2/3rds of their average weekly wages as long as he or she can demonstrate disability from work. The average weekly wage is determined by the worker’s salary in the 52 weeks prior to the time of the accident. Workers are entitled to the 2/3rds benefits up to the time they return to work. They may also be entitled to additional wage loss benefits if they have a permanent partial disability to a ratable body part.  North Carolina and Virginia both generally limit the maximum number of weeks obtainable in comp payments to 500 weeks. The exception is if one can show permanent and total disability or in North Carolina, an entitlement to extended compensation. Then one could be entitled to lifetime compensation benefits.

Does it cost money to hire a worker’s compensation lawyer?

No. Worker’s compensation lawyers, if they decide to take your case, are paid their attorney’s fees on a continency fee basis. This means they are paid only if your claim is successful. On successful claims, they are paid a percentage of the worker’s compensation award. If the case is not successful, then you don’t owe the lawyer for his/her time. Occasionally, on successful claims, there may be applications for small fees that come out of ongoing checks even before settlement, but these are small amounts of money, usually in the hundreds of dollars.

Are employers required to carry work injury insurance?

Most North Carolina and Virginia employers are required to have worker’s compensation for their workers. Alternatively, they may be allowed to self-insure – to pay any award from the company funds if they meet certain requirements. In order to be required to have comp insurance, there must be a minimum of three employees routinely engaged and required to perform the employer’s business.

Which doctors can I see?

Typically, injured workers in Virginia will be given a list or panel of 3 doctors to choose from– from their employer’s panel of doctors. This applies to general physicians, pain management doctors, orthopedists, and many other types of doctors. In North Carolina, the law is more strict. An employer and insurance carrier get to choose who the authorized doctor will be.

In Virginia, if a worker is dissatisfied with the workers compensation doctor, one can always see whomever they wish and pay out-of-pocket; however, only authorized treating physicians are required to be paid by the workers compensation insurance carrier. In North Carolina, it is not advisable to seek one’s own doctor unless the Industrial Commission approves that choice. Unapproved doctors in North Carolina are generally ignored by the Commission and will not help your case.  

An experienced North Carolina and Virginia lawyer will explain when you can switch doctors. He’ll work to get approval from the NC Industrial Commission or Virginia Workers Compensation Commission.

Can I get workers’ compensation if the accident was your fault?

Generally, yes but there are exceptions.  As long as the injury wasn’t deliberate such as if you started a fight, and as long as you did not willfully violate a safety rule or you were not willfully intoxicated,  workers are entitled to work injury benefits even if they were careless or sloppy.

In North Carolina, violation of a safety rule merely works to diminish recovery of benefits by 10%, whereas in Virginia it can operate to completely prevent a claim.

Workers often trip over objects, slip and fall, drop merchandise, or make other mistakes that can hurt themselves. Worker’s compensation will still pay benefits for this type of accident.

 

At the Virginia Law and North Carolina Firm of Joe Miller Law, we’ve helped thousands of injured workers get just recoveries. We’ve been helping injured workers for more than 30 years. To speak with a tough advocate, please call 1-(888) 667-8295 or complete my contact form to schedule an appointment.

Common Workers Compensation Definitions and Acronyms (I-W)

Posted on Monday, December 10th, 2018 at 9:27 am    

This is the second part of a summary of common medical acronyms and terms. These definitions apply to many aspects of an employee’s workers compensation case:

  • IME. Independent medical examination. This is an evaluation performed by a non-treating doctor. It is usually requested by the employer to evaluate whether a worker is ready to return to work. Often, the IME doctor is hired by the employer and works to show the employee is ready to return to work, or that a treatment recommended by your authorized treating doctor is not medically necessary. It is essential that an injured worker prepare for the IME exam beforehand with an experienced North Carolina or Virginia work injury lawyer. The attorney can explain what takes place at the exam and what the employee is required to tell the IME doctor. The lawyer will usually contest the IME doctor’s report through the worker’s own treating physicians. In North Carolina, An IME can also be requested by an employee to show the current doctors aren’t helping the worker – and that the worker should have the right to switch to a new physician.  
  • Indemnity benefits. These are generally the non-medical payments – including temporary total disability pay, permanent partial disability benefits, permanent total disability benefits and death benefits.
  • IR. Impairment rating. Also known as PPI or permanent impairment rating. Workers are entitled to treat with physicians, therapists, and other health providers as long as they are helping the worker get better. At a certain point, most workers reach the level of maximum medical improvement. This is the point where additional medical care won’t help improve the employee’s medical condition. At this point, the worker will be examined by the treating physician to analyze if he/she has a permanent disability. The seriousness/level of the disability is then given a percentage impairment rating.
  • For example, the doctor may say the ability to hear is only 40% of what it was prior to the accident or the impairment rating of the ability to use a left leg is 30% of what it once was. In Virginia, for instance, a 30% impairment rating of the leg would equate to 52.5 weeks of comp checks. So, if the worker had a weekly comp rate of $500.00, that would be $26,250.00.
  • But it should be noted that no matter how high the rating is, sometimes the impairment rating is really not significant in terms of the value of the claim. For instance, if the worker is unable to return to his or her job due to his injuries, and he or she is still receiving comp payments each week, then he or she can in any event usually only receive a maximum of 500 weeks of benefits. The additional weeks provided by an impairment rating are not allowed to increase the 500 weeks. In addition, under Virginia Law, one cannot receive temporary total disability (TTD or comp payment) benefits at the same time as permanent impairment benefits.
  • So, in our example of the 30% leg rating of a person who remained out of work, could not return, and was still receiving his TTD benefits, the 30% rating would not matter, because we’d really be looking at the 500 weeks and that’s it. On the other hand, if the worker had returned to either full duty or a job paying the same as the pre-injury wage, or even a lesser-paying job, then the he or she would be entitled to receive the impairment rating.
  • The other reason an impairment rating can be important is if the injured worker has received a rating to two or more ratable body parts. If that is the case, and the ratings interfere with the worker’s ability to work, then it is possible that a permanent and total finding may be made by the Commission, which could entitle the employee to lifetime benefits, not just the 500-week benefits. For instance,
  • LE. Life expectancy. This is the number of years the worker is expected to live based on his/her age, gender, and physical condition. It is used when lump sum payments are being considered. Essentially, a worker’s yearly wage loss and yearly medical bills are multiplied by his/her life expectancy to get the cost of future benefits. These numbers are set by statute in both Virginia in North Carolina.
  • MMI. Maximum medical improvement. This determination is made by a physician. It essentially is the time when additional medical treatment won’t help the patient get any better. When a worker reaches MMI, the impairment ratings of any permanent impairments are typically analyzed and oftentimes, the treating physician may order a functional capacity exam (FCE) to determine the worker’s permanent physical restrictions. MMI does not end medical benefits. Injured or ill workers may still need regular checkups, treatments and therapies so a condition doesn’t worsen, and medical devices and prescriptions. The employer’s insurance carrier should pay for these long-term medical costs.
  • MSA. Medicare Set-Aside Agreement. MSAs are usually considered when a worker wants to enter into a lump-sum settlement and is a currently-qualified Medicare recipient. In the workers compensation context, these are usually folks who have been determined to be disabled by Social Security for more than 24 months. Those people automatically qualify for Medicare coverage after the 24 months elapses. The gist of the concept of an MSA is that the worker may not “double-dip”. One cannot receive a sum of money for future medical care from the carrier in settlement and then turn around and utilize their Medicare to cover the same injuries. The worker is required to protect Medicare’s interests. The employer’s insurance company will generally obtain a Medicare-Set Aside Report. That report is then sent off to CMS, the review office for Medicare, and they will either approve the suggested set-aside amount, or suggest a different amount. The MSA essentially sets aside the sums that the settlement will use for medical bills so the Medicare isn’t required to pay those expenses. The MSA is usually funded by an annuity purchased by the workers comp carrier, which annuity will pay out a seed amount in the first year and then a set amount each year thereafter for the worker’s life expectancy to cover the injury-related medical expenses that Medicare would normally cover.
  • NCM. Nurse Case Manager These people work for the insurance company. On the surface, they are trying to help workers schedule their medical appointments and get to their appointments on time. On the surface, they are available to answer questions workers have about their medical care and prescriptions. The reality is that they are working to get you back to work as soon as possible. They often look for workers to miss appointments or fail to take medical advance – and then help their employer try to terminate your benefits. Workers should review with skilled work injury lawyers exactly what case managers can and can’t do. For example, while CMs can help you get to your appointment, they do not have the right to be in the room when you are being treated by a physician.

 

 

 

    • PTD: Permanent and total disability. Some workers can never return to work. Workers who lose both eyes, hands, arms, legs, or feet (or a combination of two) can claim permanent total disability benefits. Also severely brain-injured workers and workers with severe burns may qualify for permanent and total disability. These benefits cannot be claimed until the worker approaches the end of his or her 500 weeks. Then the Commission makes the assessment as to whether or not the work injury qualifies for permanent and total to go beyond the 500 weeks into lifetime benefits.  In North Carolina, in addition to the categories of injuries mentioned above, after an injured worker reaches 425 weeks of TTD benefits, he or she may make an application for extended benefits beyond the 500 weeks by showing a “total loss of wage earning capacity” due to his or her work injuries. That being said, once the worker on extended TTD starts receiving Social Security Retirement benefits, there is a “set off” of 100% of the retirement benefits.
    • PT. Physical therapy. Workers often need many different types of therapy so they can get better. Physical therapy focuses on helping the patient with physical injuries such as a sore back or rotator cuff injury to the shoulder. Other types of therapy include occupational therapy, speech therapy, and vocational therapy.
    • RSI. Repetitive stress injury. This is an injury that develops over months or years due to constant repeat pressure or motions. Carpal tunnel syndrome is a well-known RSI. It may be possible to claim worker’s compensation for an RSI though the employer will argue that it wasn’t due to an accident and isn’t an occupational illness. That being said, most other forms of repetitive stress injuries are not compensable under workers compensation law. A skilled work injury can explain when and how a claim for an RSI injury can be made.
    • SOL. Statute of limitations. All work injury claims must be brought within specific time periods or the claim will be forever barred. It’s important to see an experienced worker’s compensation lawyer as soon as possible so you meet this crucial deadline. Typically, one must file a claim within two years of the accident or one is forever barred from recovery.
    • TPD: Temporary partial disability. This term applies to workers who can return to some sort of modified or light duty work, but for less money than their pre-injury wage. The amount received is 2/3rds of the difference of their pre-injury and post-injury, light duty wage, for up to 500 weeks.

 

  • TTD. Temporary total disability. This is the term applied to the typical “workers comp check” benefit received by the injured worker each week. This term applies to an employee who can’t return to work at any level based on their doctor’s note, and it is typically 2/3rd’s of the injured worker’s average weekly wage, for up to 500 weeks.

 

    • Vocational benefits. Some workers may not be able to return to work at any job – but may be able to obtain new work if they are retrained. Vocational benefits pay for the cost of retraining this type of injured worker. Vocational benefits can include tuition, books, the cost to get to the training, and other related expenses.

 

  • Vocational Rehabilitation Counselor or VRC. This professional is knowledgeable about what work is available for specific skills in the region where the worker lives. The expert evaluates if work is available and what type of training is needed to that type of work. The vocational expert also reviews if the worker is capable of being retrained. Be forewarned that these experts are on the dole of the workers compensation insurance company. Their goal is often not to find you a job, but to make you “jump through hoops” in order to trip you up so that your benefits can be cut off. Going through vocational rehabilitation is usually a very annoying and frustrating experience. Sometimes, it is used to put pressure on the injured worker to settle their claim for a lesser amount. We usually advise our clients to simply endure the “game,” and play it, until we can get their case in a good position for settlement.

 

  • Workers’ compensation rate. This is the amount the worker is actually paid if the claim is approved. The starting point is 2/3 of the worker’s average weekly wage or .66667 of the pre-injury average weekly wage.

Don’t wait. Call the North Carolina and Virginia Law office of Joe Miller Esq., today. We have the experience and resources to help you get justice. You may have a large recovery coming your way. help now, phone 1-(888) 667-8295 or complete my contact form to discuss you work injury claim.

Common Workers Compensation Definitions and Acronyms (A-F)

Posted on Friday, November 30th, 2018 at 11:21 am    

North Carolina and Virginia use a lot of confusing terms in worker’s compensation cases. An experienced work injury term understands these definitions. He knows how they affect your claims for lost income, payment of medical bills, and other aspects of your case. A few of the more common worker’s compensation terms are these:

  • Accident. In both North Carolina and Virginia, work injury claims are brought based on two criteria. The first is that an employee suffers an accident at work. The second is that the worker suffers an injury.  To prove an accident, there is no requirement to show the employer was negligent or failed to exercise proper care. There’s no need to assert or prove negligence or fault on the part of the employer. In North Carolina, except for back injuries, an “accident” is harder to prove than in Virginia. In North Carolina, there must generally be some kind of “slip, trip or fall,” that led to the injury. In Virginia, this is not necessary. For instance, in Virginia, if your job required that you pick up a 100 lbs item, and during that process, you felt a sudden “pop” in your shoulder which caused injury, then this would qualify as an “accident.” In North Carolina, that would not qualify as an “accident,” because there was no “slip, trip or fall.”
  • AWW. Average Weekly Wage. This is the calculation of the amount the worker earned on weekly basis prior to the accident. This is the gross amount, prior to deductions for taxes or other items. For workers who worked for more than a year, it is generally the average of the worker’s earnings in the 52 weeks prior to the accident. Workers are generally entitled to 2/3rds of their AWW for the time they can’t work – up to preset maximums. If that calculation is not fair for whatever reason—for instance, if the employee received a significant promotion and wage increase during the prior 52 weeks, then adjustments can be made.
  • Compromise and release. This is basically an overall settlement agreement so that workers can be paid in a lump sum instead of being paid on a weekly or monthly basis. It is usually used  when the worker has reached his/her maximum medical improvement – the time when additional further treatment will not improve his/her condition. Experienced work injury lawyers work to get the right lump settlement based on many factors. Some of these factors including reasonable understandings of the patient’s future medical needs and expenses, his/her life expectancy, and other factors. In North Carolina this is often referred to as a “clincher.” In Virginia, it is simply referred to as a “full and final settlement.”
  • Dependent. This term is used when a worker tragically dies due to a workplace accident or occupational illness. Generally, a surviving spouse and dependent children are presumed to be entitled to some worker’s compensation benefits on behalf of the deceased workers. Dependents include children under 18 and handicapped children 18 and over. Dependents can also include grandchildren and siblings. Even dependent parents and grandparents may be eligible if it can be shown they were financially dependent on the worker who died.
  • FROI. First report of injury. This is essentially the notice/report that the worker gives the employer when he/she is injured. In addition to placing the employer on notice. Generally, the notice must be given to the employer within 30 days and should be preferably in writing. We have seen cases get denied when suddenly the folks you reported the accident to verbally are no longer around, or worse, deny that you reported the accident to them.  This is also the terminology used to refer to the requirement that the employer report your injury to the Virginia Workers Compensation Commission or the North Carolina Industrial Commission, as the case may be. Note that the employer will often be heard to tell the employer “Don’t worry, we have filed your claim for you.” What the employer is usually referring to when they way that is the FROI. It has zero legal effect on your claim and you need to know that your employer cannot file your workers compensation claim for you. The report of injury is not a filing of your claim and does not provide you with any rights at all. The filing of your claim must be done by you or your attorney. In Virginia, that begins with a Claim for Benefits and in North Carolina, it begins with a Form 18. The filing of these forms makes clear to the insurance company and the Worker’s Compensation Commissions that you are demanding your wages, medical bills, and any other benefits.
  • FCE. Functional capacity evaluation. This is an evaluation usually performed by a physical therapist or occupational therapist. It typically lasts for four or more hours and it is conducted to determine which of your job tasks you can and can’t do. The FCE professional will examine physical abilities such as how much you can lift or carry, how long you can stand without having to sit, your ability to reach, whether you can hold items with your hands, how well you can speak, and other functional abilities. After the examination, you will be rated on a continuum of physical ability, which goes from the lowest, meaning sedentary, to the highest, which his very heavy. These examinations are also often used to provide a permanency rating with regard to your injured body part (s). After the evaluation, a report will be drawn up and you will typically have a scheduled visit to review the results with your authorized treating physician, who will usually then sign off on the FCE, or make modifications.
  • Future medical bills. It’s easy to calculate past due medical bills. Employees should understand that in worker’s compensation cases, the employer or the employer’s insurance company is required to pay all your future medical bills in relation to your work injury as well. Generally, workers seek medical help until they reach their state of maximum medical improvement. After that stage, many patients still need to continue seeing therapists and other health providers so their condition doesn’t worsen, or to decrease ongoing pain. Future medical bills also include the cost of medications, prosthetics, and medical equipment that you’ll need for the rest of your life. The insurance carrier should pay your medical bills as they become due. Additionally, your lawyer will work with your doctors to calculate the likely future medical bills if you want to enter into a lump sum settlement.

At the North Carolina and Virginia Law office of Joe Miller Esq., we answer your questions and guide you through each phase of your work injury case. We’ve been fighting for injured workers more than 30 years. To speak with a strong advocate, call 1-(888) 667-8295 or complete my contact form to schedule an appointment.

Common Reasons Injured Workers File North Carolina and Virginia Workers’ Compensation Claims

Posted on Monday, September 17th, 2018 at 9:18 am    

Accidents at work happen for all sorts of reasons. Many injured workers who call our office start out talking about all the reasons why the employer was “at fault” for the accident, and how they want to “sue” their employer because of this.
First of all, with extremely limited exceptions, you cannot “sue” your employer. All cases against an employer for work-related injuries are subject to either the Virginia or North Carolina Workers Compensation Act.

That being said, there is also no requirement to prove the employer caused the accident or was negligent. The main requirements are that the worker was an employee, that the accident was work-related, and that that the worker currently cannot work because of the injuries suffered in the accident. North Carolina has a higher requirement of proof than Virginia. In Virginia, an employee can simply be lifting something very heavy or be forced to turn in an awkward way—and this can be compensable.

In North Carolina, unless it is a back injury, this will not suffice. There must be a slip, trip, or fall to qualify for a work injury.

Workplace accidents can differ depending on the type of work you do. Generally, construction workers and folks in high-risk occupations such as tree-cutting are more prone to accidents than other workers. Still, nurses, technical workers, restaurant servers, and anyone in any job may suddenly find themselves unable to work due to a workplace injury.

Some of the injuries that force workers to file a workers’ compensation claim are:

  • Overexertion. Workers who do any type of physical labor such as firefighters, police workers, janitors, industrial workers, and construction workers – are often lifting, carrying, pushing, and pulling heavy objects. Nurses are often lifting and turning patients and mattresses. Everyone has their breaking point – the point where one extra motion causes a backache, a pulled muscle, or other physical injuries. Unfortunately, with very few exceptions, repetitive motion injuries are not compensable under workers compensation.
  • Slips, trips, and falls. At nearly every job, it’s possible to slip and fall. Factory workers can fall over equipment. Retail workers can fall over merchandise. Apartment workers can fall over loose wires. Teachers can fall over books on the floor or something spilled on the floor. Again, there is no need to prove someone was at fault. Falls can cause broken bones, severe bruises, back and neck pain, brain injuries, and other injuries that need long-term treatment to get healthy again.
  • Falls from high place. Construction workers, firefighters, and other workers can fall from high-beams, scaffolding, ladders, and other places that are high. These falls are especially dangerous. If the worker dies, a distinct possibility, the family of the worker has the right to request workers’ compensation benefits. If there are no witnesses, then there can be a challenge to the compensability of the case.

Workers who survive the fall may suffer paralysis, traumatic brain injury, never damage, broken bones and other serious injuries. Workers who can’t work again due to these injuries can claim up to 500 weeks of temporary total disability benefits. (TTD) Workers with certain types of injuries may have the right to demand additional benefits, as they near the end of their 500 weeks, which would be permanent and total injury benefits. Workers who can work again but at less stressful jobs can claim temporary partial disability (TPD) until they can work again. When the worker then starts working at a lower paying job, they can claim partial disability work injury benefits at 2/3rds of the difference between the pre-injury wage and the lower wage, for up to 500 weeks.

  • Being struck by an object. Construction workers, even when wearing helmets, are at constant risk of being struck from above by falling equipment, lunch pails, tools of the trade, and other equipment. Retail workers can be struck by falling merchandise. These injures can cause brain injury and other serious harm. Sometimes workers get pinned against a dangerous object. An object may be thrown at them by someone who wasn’t looking.
  • Motor vehicle. Anyone who drives a car, truck, or other motorized vehicle for a living may get into an accident. Distracted drivers, speeding drivers, drunk drivers, and just careless drivers are likely to cause an accident. Drivers who are focused on their work may get into an accident. The main issue in vehicle accidents is whether the accident occurred while the worker was doing his/her job and did the accident cause your injuries. You should know that even if the worker is at fault for the accident, he or she still may be able to recover workers compensation benefits. A huge caution: NEVER settle your third party injury case before your workers compensation case. This could subject you to being cut off of your benefits, in most cases, permanently.
  • Equipment accidents. Forklifts, cranes, scaffolding equipment, electronic tools, and other work equipment may malfunction. The equipment may not be used properly. Workers may not see that someone else is using the equipment. Employers are generally required to follow federal regulations such as OSHA (Office of Safety and Health Administration) rules and local state work safety rules. Each piece of equipment should be inspected before it is used. Workers should be trained on the proper way to use electronic devices, jackhammers, expanding ladders, and other devices. Workers are supposed to also be trained on proper safety measures so that electronic shocks, chemical or electric burns, radiation exposure, and other life-threatening injuries don’t occur or that they are protected – such as by wearing goggles and gloves. Once again, there may be a third-party claim against the manufacturer of a piece of equipment. Once again, you should NEVER settle the third-party claim prior to the workers comp claim, or this could deprive you of your ongoing benefits.
  • Repetitive motion injuries. Repeating the same motion over and over again can cause carpal tunnel syndrome, tendinitis, inflammation, and other injuries. People who work with computers or do assembly line work are especially prone to get these injuries. While there is usually a requirement to show a specific accident caused your injuries, employees who are required to do repetitive work may have a legal basis for arguing the claim is an occupational illness or that one particular accident made the condition worse.
  • Workplace violence and catastrophic, violent injuries. The police are especially prone to being attacked during arrests, while investigating crimes, and while handling domestic disputes. A disgruntled worker or an angry worker may take out his/her frustrations on other workers. Angry customers or armed robbers can harm store clerks, retail workers and other types of employees. Nurses, counselors, or other medical personnel who work in mental health facilities or rehabilitations facilities have and do frequently suffer attacks from mentally disturbed or otherwise violent patients or inmates. Anyone who suffers injury due to workplace violence is entitled to file a workers’ compensation claim. Many victims of violence end up not just with physical injuries, but with Post Traumatic Stress Disorder (PTSD) , severe depression, anxiety, and need years of psychological counseling and psychiatric treatment for their physical injuries. Many will never be able to return to their former occupation because of what they were exposed to on the job. We represent many clients who have suffered PTSD as a result of violence in the workplace, or simply because they have suffered a violent and catastrophic accident such as a fall from heights.  

In all work injury cases, employees are entitled to payment of all reasonable and necessary medical bills including surgeries, doctor visits, physical therapy, emotional counseling, medical devices, and medications. They should demand their wage loss benefits, which are 2/3rds of the Average Weekly Wage usually for up to 500 weeks, as long as the injured worker is unable to work.  Workers shouldn’t be forced back to work until they are ready. In some cases, injured workers may be entitled to vocational rehabilitation benefits so they can transfer to a different type of job.

Understand your work injury rights by calling us today

At the North Carolina and Virginia Law office of Joe Miller Esq., we are respected for our ability to get strong results. For more than 25 years, we’ve been fighting for injured workers. We work to show your claim is valid. We understand the arguments insurance companies use to try to deny your claim.  Do not wait to call us or take any action in your case without calling our office first. Many injured workers ruin their case by taking action on their own without contacting a knowledgeable workers compensation lawyer. Please do not do this. Attorney Miller works with your doctors to understand your medical condition, prognosis, and the reasons you can’t work. To speak with an experienced work injury lawyer, please call (888) 694-1671 or fill out my contact form to schedule an appointment.

Teachers and Workers’ Compensation Rights

Posted on Thursday, September 13th, 2018 at 1:00 pm    

Teachers help our country become a better place by education our children and giving them hope for the future. While there are many rewarding sides to teaching, there are physical risks and a great deal of stresses. These risks and stresses can lead to accidents and illnesses. Several questions also arise in teaching claims such as whether claims can be made if you get hurt in after-school and away-from the school activities. In addition, with regard to public schools, which are typically funded by cities and counties, settlement may be out of the question. This is because for the most part— with some exceptions— municipalities and public entities tend to shy away from settling workers comp cases. It really depends how the public entity is insured and whether there are funds set aside to settle cases.

Physical injuries that can lead to teacher workers’ compensation claims in North Carolina and in Virginia

Some of the ways teachers can hurt while teaching include:

    • Slip and fall accidents. Teachers can slip, trip, or fall in a lot of different ways. There’s a lot of traffic among students, teachers, and even parents. This puts a lot of strain on physical resources. Tiles can be become cracked or broken, carpets can tear, and outdoor lighting may not work which can make it hard to see. Students often leave books on floors. Locker contents can spill. Bathrooms can become messy. Kitchen areas often become wet and dangerous. Just one bad slip or trip can cause broken bones, spinal cord damage, chronic pain, muscle damage, torn ligaments, and other injuries. Bad falls can even result in a traumatic brain injury.
    • Exposure to toxic chemicals and substances. Some old schools still have asbestos which can cause life-threatening illnesses. Many schools have mold and dust which can make it hard to breathe. Teachers may suffer rashes, headaches, and other illnesses due to the environment they work in. In severe cases, teachers may even be diagnosed with cancer. Teachers who acquire illnesses may have the right to workers’ compensation benefits based on having an occupational disease; however, these claims can be difficult to prove without the proper proof. This proof tends to come in the form of air samples of measurements of these substances, as well as definitive statements from a qualified doctor that the illness of the worker is from exposure at the job site.
    • Repetitive stress issues. Teaching involves different types of repetitive stresses such as constantly writing on chalkboards, using computers on a daily basis, marking papers, and other repeated actions. These stresses can cause carpal tunnel syndrome requiring the teacher to take off from work while he/she receives treatment. Other complications include bursitis (inflammation), tendinitis, and rotator cuff injuries. Repetitive stress injuries may be compensable if the worker, with the help of a skilled workers’ compensation lawyer can show:
      • That the stresses were due to work conditions and not home or other conditions
      • That the school environment contributed to their repetitive stress injuries and
      • That the risk of developing repetitive stress injuries were more than the general public typically faces
    • Injuries that are unique to the courses being taught. Chemistry teachers might have a chemical accident. Driver’s education teachers are always at risk of a student getting into a crash. Physical education teachers constantly risk a pulled muscle, sprained back, or other injury. Teachers who work with after-school musicals can hurt instructing a student how to dance.
    • Unusual stresses. Teaching is hard work. There’s constant pressure from parents to want their kids to excel. Often, teachers need to be substitute parents. Many children have emotional problems. Teachers have to make sure their students pass standardized tests. There’s a lot of paperwork. Many days, teachers suffer from depression, frustration, high blood pressure, and anxiety. These stresses can lead to mental health concerns which require the teacher to take time off to rest and get psychological help. Unfortunately, these sorts of things are not typically going to be compensable via workers compensation.
    • Violence and physical attacks. Sadly, in some schools, teachers are either attacked directly by disgruntled students or they are hurt trying to break up fights. In many schools, these days, gun violence is a major realistic concern. Teachers may be also be stabbed or kicked. Teachers who are physically attacked or shot have the right to demand workers’ compensation while they tend to their physical and emotional health. Exposure to a violent incident may result in Post Traumatic Stress Disorder (PTSD).

 

 

 

 

  • Benefits an injured teacher or a teacher with a work injury or proven occupational illness is entitled to:

 

Teachers are entitled to the following:

  • The cost of all medical treatment including pain doctors, orthopedists, surgeons, hospitals, and other physicians
  • The cost to treat with physical therapists that are reasonably required to heal physical injuries
  • Payment for psychologists, psychiatrists, and mental health counselors – as reasonably needed
  • Generally, 2/3rds of the teacher’s average weekly wages while the teacher is temporarily unable to work for up to 500 weeks.
  • Permanent and Total disability payments for life if the teacher can’t return to work, and the injury qualifies as a permanent and total disability case.
  • If the teacher is able to return to work, possible additional money if there is a permanent impairment to a ratable body part;
  • Mileage reimbursement to and from the medical provider’s offices

Teachers may also be entitled to vocational rehabilitation if they are unable to return to teaching again.

Dependents of teachers who are tragically killed have the right to demand workers’ compensation death benefits.

Some additional teacher workers’ compensation issues

Some additional issues teachers face in claiming North Carolina or Virginia work injury benefits.

  • Injuries after-school and away from work. Many teachers work as sports, cultural, and other instructors after school. Many times, these activities take them to other schools and to organizations at places in different counties and even in different states. As a general rule, teachers are entitled to workers’ compensation as long as they were in the employ of the public or private school district when the accident occurred.
  • Injures while driving to school. Generally, teachers are not entitled to work injury benefits while they commute to school. Each case is unique. Some exceptions do apply. Injured teachers should speak with an experienced workers’ compensation lawyer to learn if they have a claim. For example, a teacher who volunteers to take children home from an after-school baseball game may have a claim if an accident occurs on the way home.

Speak with an experienced workers’ compensation lawyer today

Attorney Joe Miller Esq., has helped thousands of injured employees get justice. He’s been a strong advocate for injured workers for more than 25 years. He understands your legal rights and works with your medical doctors, and independent doctors, so you aren’t forced back to work until you’re able to work. For help now and answers to your questions, please call (888) 694-1671 or complete my contact form.

Three Doctor Panels in Virginia Workers Compensation

Posted on Wednesday, September 5th, 2018 at 2:47 pm    

Virginia Workers Compensation Attorney Joe Miller explains when you may be entitled to a three-doctor panel of doctors to choose from for your ongoing medical care for your work injury:

What if I’m hurt on the job in Virginia and my employer has failed to maintain workers compensation insurance?

Posted on Thursday, August 23rd, 2018 at 9:33 am    

What if you’re hurt on the job in Virginia and your employer has failed to maintain workers compensation insurance? Attorney Joe Miller explains in his latest video:

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