More JLRAC Recommendations and More on Presumptive Diseases

Posted on Thursday, March 19th, 2020 at 2:16 pm    

This is the third in a series of recommendations by the Joint Legislative Audit and Review Commission (JLARC) for how to improve the Virginia Workers’ Compensation system. Earlier articles discussed executive recommendations and legislative recommendations. This article is a continuation of the legislative recommendations.

Legislative recommendations

Recommendations 21. The JLARC recommends that the Virginia General Assembly consider changing the Virginia Workers’ Compensation laws to address amending the criteria for establishing presumptions with respect to certain occupational diseases of first responders as follows:

  • Total or partial disability – can be shown through wage loss, lost work time, or medical evidence
  • Workers who seek only medical benefits should for a total or partial disability should only be required to submit medical evidence

Recommendation 22. The JLARC recommends that the state legislature consider amending the state workers’ compensation laws for certain occupations diseases of first responders to reduce the “years of service requirements from 12 years.” Right now, they must show continuous service of 12 years to be eligible for the disease presumptions. 

Recommendation 23. The Virginia General Assembly should consider amending the current work injury laws so that the word “continuous” is removed from the years of service requirement part of § 65.2-402.c for first responders. 

Option recommendations

The JLARC also recommends that the following options be considered by the Virginia General Assembly regarding amending § 65.2-402 of the Code of Virginia (the state’s workers’ compensation law):

  • Option 1. “To add brain and testicular cancers to the list of cancers that are presumed to have been caused by firefighting.”
  • Option 2. “To add colon cancer to the list of cancers that are presumed to have been caused by firefighting.”
  • Option 3. “To specify that the presumptions for breast, colon, ovarian, and pancreatic cancers covered by the statute shall not apply to workers’ compensation claims submitted after June 30, 2030.” Prior to June 30, 2030, the state legislature could direct that there be a study of the latest national research to determine if there is an “association between firefighting and these cancers.”
  • Option 4. “To require that workers’ compensation claimants have completed a minimum number of years of service as a firefighter or police officer, including any time spent in required training, to claim the cardiovascular disease presumption.”

Presumptive diseases and workers’ compensation

Presumptive disease laws, according to Business Insurance, have been in place in many states to help protect firefighters, police officers, and other first responders such as EMT personnel. The presumptions are used in occupational illness cases. Anyone who is hurt in a workplace accident has the general right to file a workers’ compensation claim provided that the accident caused their injuries, but occupational disease cases do not require a specific accident to have occurred.  

Occupational disease claims are based on the premise that some workers are exposed to unique hazards at work that are beyond those to which the general public is exposed.  Normally, workers have the burden of proof to show:

  • That the occupational illness/disease was caused by conditions that are unique to the worker’s type of employment
  • That the occupational illness was not a disease that a worker would generally develop in the same way the general public would develop the disease.

Unless the disease is one that is typically recognized in the case law and statutory law as an occupational disease, proving these two elements can be quite difficult. The presumption that a disease is occupational shifts the burden to the employer to show that the disease uniqueness and causation factors do not explain the worker’s illness. Otherwise, the disease is considered an “ordinary disease of life” and to be compensable, the injured worker must meet a standard of “clear and convincing evidence.” 

Presumption laws in many states already help emergency personnel and other first responders by allowing for presumptions for heart and lung disease. Business Insiders says that there is push in many states to apply the presumption of compensability to other disorders such as:

  • Mental health disorders such as post-traumatic stress disorder
  • Many different types of cancers

The shift in presumptions is generally a balance argument. Employers argue that shifting the presumptions will increase their employer insurance costs. Opponents of expanding presumptions argue that public safety workers in some states have other types of occupational disease protections or that that emergency responders are trained to handle some of these disorders such as stress situations.

Advocates for firefighters, police officers, and other ER officers argue that the shift is only fair because these brave workers put their lives on the line every day. Opponents to expanding the presumptions argue that, “There’s greater scientific knowledge, but that doesn’t mean that it’s all attributable to the workplace, and municipalities are very vigorous in their opposition of expanding the costs of workers compensation.” 

According to the International Association of Fire Fighters, over 40 states have some type of presumption allocation for public employees in the areas of heart and lung disease, cancer, infectious diseases, or mental health diseases.

“A 2013 study by the National Institute for Occupational Safety and Health found that firefighters have increased rates of cancer. That data has led to an influx of proposed cancer presumptions, said Jim Brinkley, Washington-based director of occupational health and safety at the International Association of Fire Fighters. Opponents argue that the scientific connections showing links between the workplace conditions and diseases are not strong enough yet.

As discussed in a previous article, although Virginia does have such presumptions in place for certain cancers amongst firefighters, Virginia has made the standards of proof difficult to meet in the event a firefighter should contract cancer, even listed cancers such as pancreatic cancer, since we have no idea what causes pancreatic cancer.  That is why the JLARC has recommended a loosening of those standards for our first responders. 

Virginia work injury attorney Joe Miller Esq. understands Virginia workers’ compensation law and keeps current with any changes. He understands that while many workers file claims based on workplace injuries, workers who spend a lot of time with an employer and become ill due to the type of work they do should also be able to demand workers’ compensation. For help with all workers’ compensation claims in Virginia, call Joe Miller, Esq., at 888-694-1671 or complete my online contact form to schedule an appointment. Cases are handled on a contingency fee basis.

Recommendations by the Joint Legislative Audit and Review Commission – Part Two

Posted on Wednesday, March 18th, 2020 at 10:35 am    

The Joint Legislative Audit and Review Commission (JLARC) followed up its recent review of the Virginia Workers’ Compensation system my making specific legislative, executive, and policy recommendations. Some of the recommendations, in addition to those discussed previously, include:

  • Recommendation 10. The Virginia Workers’ Compensation Commission (VWC) should help injured workers understand the workers compensation process by developing and publishing a “comprehensive and easy-to-understand guide.” The guide should be published online. It should help all workers in Virginia who have been hurt while doing their job. The guide should include information about:
    • Their rights under the state Workers’ Compensation
    • The role the VWC plays in the workers’ compensation process
    • How claims are filed and resolved
    • What VWV services are available
    • How an injured worker can find an experience attorney to fight for them.

I have said previously that this is a great idea, and that I would go further and say that the VWCC should also designate a few Commissioners or Deputy Commissioners to further disseminate this information in video format that is clear and easy to understand. The most important thing that I think most injured workers do not understand is the importance of being under an Award Order and the process that is necessary to get that done. 

  • Recommendation 11. The VWC should review all its online and written materials that communicate with employers, workers, and insurers – by January 1, 2021 – “to ensure that all materials are as clear, accurate, comprehensive, and accessible as possible.”
  • Recommendation 12. The Virginia General Assembly should “consider amending § 65.2-200 of the Code of Virginia to create an ombudsman office within the Virginia Workers’ Compensation Commission.” This office should be run by a lawyer in good standing with the state bar. The office should:
    • “(i) provide timely and confidential educational information and assistance to unrepresented parties to help them understand their rights under the Workers’ Compensation Act and the various processes available to them
    • (ii) carry out duties with impartiality and not provide legal advice
    • (iii) maintain data on inquiries received, types of assistance requested, and actions taken.”

Also an excellent idea. Some of the folks who you will get on the phone at the VWCC are very knowledgeable. Others not so much. The other problem is it is sometimes very hard to distinguish between giving legal advice and just providing information. I suppose the distinction would be if someone calls and asks “Should I file a Claim?” That is something the VWCC folks cannot tell you as that would be legal advice; however, they CAN tell you all of the necessary steps should you choose to file your claim and provide an easy guide to make it easy for that to happen. 

 

  • Recommendation 13. The Virginia General Assembly should consider amending the state code to require that insurance carriers for employers and employers who are self-insured be required to have a notice in any letter that denies their workers’ compensation claim – that the worker has the right to contest the denial “through the Virginia Workers’ Compensation Commission (VWC). The notice should indicate:
    • (i) “VWC’s neutral role within the workers’ compensation system to adjudicate disputed claims
    • (ii) the need to file a claim for benefits with VWC within the applicable statute of limitations
    • (iii) contact information for VWC.”

As noted in the previous article, many injured workers do not understand that they have the right to contest the denial by the insurance company. They believe that is the end of the line. As noted previously, these decisions to accept or deny a claim are often made by adjusters who may not be knowledgeable about Virginia Law. These incorrect decisions can and should be challenged by filing a claim as soon as possible. Sometimes, all it takes is a little “education” of the adjuster on the part of our firm, and the claim becomes accepted. 

  • Recommendation 14. The VWC should “send a notice to all injured workers for whom it has received a First Report of Injury, but who have not yet submitted a claim for benefits to VWC and are still within the applicable statute of limitations,” which explains:
  •   The worker’s rights to contest the denial of work injury benefits by the employer
    • That the VWC exists and what its role is in the state workers’ compensation process
    • The requirement to file the workers’ compensation claim within the statute of limitations period to preserve their right to claim benefits

 

Notices should have been sent to all applicable injured workers no later than January 31, 2020.

Also an excellent idea. So many calls to our office are from folks who never filed a claim because they did not know they had to or did not know there was a two-year time limit. 

It is very sad to have to tell these folks that they no longer have a case. 

  • Recommendation 15. This recommendation pertains to cumulative trauma injuries. Cumulative trauma injuries are generally injuries to nerves, muscles, and tendons caused by continual wear and tear over time. Common cumulate trauma injuries include carpal tunnel syndrome, bursitis, tendonitis, Cubital Tunnel Syndrome and DeQuervain’s Tenosynovitis.

The JLARC recommends that the Virginia General Assembly consider directing the VWC, through the Appropriation Act, to hire a neutral but reputable national research organization (skilled in workers’ compensation policy) to:

    • “(i) develop options for covering workers’ cumulative trauma injuries through Virginia’s workers’ compensation system

(ii) summarize key policy considerations associated with modifying statute to cover cumulative trauma injuries.”

    • The research organization should take into consideration:
    • “(i) the annual number of cumulative trauma injuries in Virginia and other states
    • (ii) other states’ evidentiary requirements for claiming workers’ compensation benefits for such injuries
    • (iii) necessary changes to Virginia’s statutory provisions
    • (iv) impacts on workers, employers, and insurers.”

The VWC should submit the proposals to the House Appropriations and Senate Finance committees by November 30, 2020. 

  • Recommendation 16. The Virginia General Assembly should consider changing the state code so that cumulative trauma injuries are compensable under the Workers’ Compensation Act. 

As noted previously, other than carpal tunnel syndrome, under the current law, a compensable claim is only one where the injury occurred at some definite time and involved a “sudden mechanical change” in the body. Working over a period of time and developing spinal disease or bursitis from years of heavy labor, is, for instance, not compensable. 

  • Recommendation 17. The Virginia General Assembly should consider amending the state code to “authorize and direct the Virginia Workers’ Compensation Commission (VWC) to include in its existing biennial reviews of Virginia’s workers’ compensation medical costs a comparison of Virginia’s medical fees to Medicare reimbursement rates for the same services in Virginia.”
  • Recommendation 18. The Virginia General Assembly should consider changing the state code to provide that psychological injuries can be compensable “even if the event causing the psychological injury could have been reasonably expected by the worker to have occurred as part of his or her job responsibilities.” 

This is an interesting recommendation. Currently, there is a requirement that to make a claim for a psychological injury from work, one must have undergone a “sudden shock or fright.” It is presumed that those whose job it is to, for instance, investigate murders or other gory scenes would be reasonably expected to be exposed to such scenarios on a fairly frequent basis. Therefore, usually such persons would be precluded from bringing a claim for PTSD because an exposure to such an event is not a “sudden shock or fright,” because his or her job requires such exposure. 

  • Recommendation 19. The Virginia Genera Assembly should consider amending the state code to create a method for “reviewing the scientific research on proposed new presumptions or modifications to existing presumptions under the Virginia’s Workers’ Compensation Act prior to legislative action.” The changes should consider how strongly. the occupation, the disease, and the relative hazards of the worker’s occupation relate to each other – and “the relevance, quality, and quantity of the literature and data available to determine the strength of evidence.”
  • Recommendation 20. The General Assembly should consider “amending § 65.2-402.C of the Code of Virginia to provide that a firefighter may meet the toxic exposure requirement either by demonstrating:
    • (i) exposure to a toxic substance, as is currently required, or 
    • (ii) participation in responses to fire scenes, either during the fire or afterwards as part of clean-up or investigation.”

Virginia workers’ compensation lawyer Joe Miller Esq. has been fighting for injured workers in Virginia for more than 32 years. He’s helped thousands of employees obtain a just recovery for their medical expense, wage loss entitlement, and any other benefits that may apply. He helps workers when insurance companies try to force workers back to work too soon. To review your Virginia workers’ compensation case with Joe Miller, Esq., call me at 888-694-1671 or fill out my online contact form to make an appointment.

Recommendations by the Joint Legislative Audit and Review Commission – Part One

Posted on Monday, March 16th, 2020 at 10:20 am    

The Joint Legislative Audit and Review Commission (JLARC) followed up its recent review of the Virginia Workers’ Compensation system with a series of recommendations for improving how to best benefit injured workers while respecting the rights of employers. The general recommendations are these:

Legislative action

The JLARC recommends that the state legislature:

  • Require, by statute, that the insurance companies for the employers be required to make a timely initial determination of the worker’s claim when the worker notifies the employer of any injuries or diseases. The Virginia Workers Compensation (VWC) should be required to monitor if and when the insurers are meeting this timeframe. The VWC should have the authority to impose financial penalties for noncompliance. 

 

We see this frequently in our practice. A worker is injured, sometimes severely, and the insurance company has given no clear answer on whether they are going to deny or accept the claim. Meanwhile, week after week passes with no incoming checks. Maybe the insurance company has elected to cover the medical treatment; maybe not. 

 

Even after we file the claim, which typically results in the issuance of a 20-Day Order, meaning the insurance company is supposed to have only 20 days to respond to the claim, there is often no response from either the insurance company or the Commission. Many times, we have to call the Commission and ask them to place the matter on the docket due to the lack of response. 

In still other cases, there is a response, but it is something vague such as “the matter is still under investigation.” 

 

JLARC is certainly right about this. Insurance companies should not be permitted to indefinitely fail to clarify whether they are accepting or denying a claim. Of course, a reasonable period of time must be permitted in the event further investigation by the insurance company is required after a work injury. But there needs to be a time limit. For instance, North Carolina gives a 90-day deadline. If they can’t respond in that time frame, then the claim is considered accepted. 

 

  • Require that that self-insured employers and the insurance carriers for the employers inform injured workers about their right to contest a denial of workers’ compensation benefits by the employer. It is truly amazing to me that so many folks are completely unaware of their rights under the law. Many believe that a company denial is the end of the road. They do not realize that the decision to deny their claim has been made by an insurance adjuster. In many cases, that adjuster is not in the Commonwealth and does not know the law. In other words, many times, the insurance adjuster is simply wrong. The only way to fix it is to move the case to hearing. Sometimes a defense lawyer who does know the law will get involved after we file the case, and after we present the facts or engage in depositions. convince the carrier that they have made a mistake, and the claim will then be accepted. 
  • Expand the current workers’ compensation medical benefits to include compensation for “cumulative trauma injuries”  Currently, except for carpal tunnel syndrome and certain occupational diseases, to be compensable, an injury must have occurred at some definite time and involve a “sudden mechanical change” in the body. 
  • Require that the VWC conduct a comparison of Virginia’s medical fees to the reimbursed fees allowed by Medicare – as part of its biennial review of state workers’ compensation expenses. Currently all Medical Fees are governed by a Medical Fee Schedule
  • Change the “cancer presumption to allow firefighters to meet the toxic exposure requirement through evidence that they responded to fires.” This was covered in our previous article on this subject. 
  • Make clear that the “disability requirement for claiming a disease presumption can be met through medical evidence.” As was discussed in the previous article, firefighters currently must identify the specific pathogen that they were exposed to. This is an undue burden on our sick first responders. All that should be required is a medical opinion. 
  • Lower the years of service requirement for the presumption of cancer for firefighters from 12 years down to something less. 

Executive action

The JLARC also recommends that:

  • The Fairfax workers’ compensation office employ at least one more deputy commissioner
  • Update all written communication materials (for workers, employers, and insurers) so that information in the materials ins clear and accurate. The materials should include a comprehensive guide so that workers who are injured can understand their rights and what role the VWC plays in workers’ compensation cases. This is an excellent idea.

 

 I would even go further and require some of the Commissioners to do a series of public service videos to break down the law and its requirements as clearly as possible for injured workers and their families, and put those videos up on the VWC Website. 

 

Each and every day, we have to tell folks who call our office that they do not have a case because the injured worker failed to follow some requirement of the law, such as filing their claim within the two-year statute of limitations. It is not really their fault, because except for places like this, the information on the requirements to preserve and enforce your rights under the Virginia Workers Compensation Act are not widely publicized. This is on purpose, because the insurance companies—who have a large lobbying presence—do not want you to know this information. 

 

  • “Notify, as soon as practicable, all injured workers who have not yet submitted a claim for benefits about their right to dispute insurers’ denials and the need to file a claim directly with VWC within the statute of limitations to preserve their right to benefits.” I have seen this done in many cases, but the triggers to get this information out to the injured worker is not always consistent. And for a ‘scofflaw” employer who fails to file a First Report of Injury with the VWCC, the VWCC would not even be aware that a work injury occurred. 

Policy options

The JLARC recommends that workers’ compensation policies add the following:

  • “Add brain, colon, and testicular cancers to the list of cancers presumed to be caused by firefighting. 
  • Add a years of service requirement to the cardiovascular disease presumption.

Specific JLARC recommendations for the Virginia Workers’ Compensation System

The full list of recommendations includes the following:

  • Recommendation 1. The VWC commission should hire one ore more deputy commissioners to the Fairfax office – so they can handle hearings and mediations.
  • Recommendation 2. The VWC commission “should ensure that its chief deputy commissioner issues guidance to deputy commissioners that communicates that they have discretion to prioritize the order in which they write their opinions so that they can maximize the number of opinions issued within 21 days.”  This would be nice. I have seen the rate of the issuance of opinions vary greatly. In some cases, it can be a month, in others up to six months to receive an opinion. Remember, after a Hearing, basically nothing happens until the written opinion is rendered by the Deputy Commissioner who heard the claim.  That’s why the following are all good ideas. 
  • Recommendation 3. The VWC should:
    • Change its electronic reporting system so that the number of days each deputy commissioner takes to issue opinions after the record is closed – is placed into the system.
    • Create quarterly reports which identify which deputy commissioners have taken more than 21 days to issues a majority of their opinions.
    • Require that the chief deputy commissioner work with his/her deputy commissioners to improve how promptly the deputy commissioners who are taking more than 21 days, on average, issues their opinions.
    • Require that the “chief deputy commissioner file an annual report on the timeliness of opinions to the full state Commission.
  • Recommendation 4. THE VWC Commission should increase the amount of time slots that can be used for full and final mediation of workers’ compensation matters – by authorizing staff lawyers “to conduct full and final mediations in cases where neutral facilitation is selected by the parties. I agree with this, and I would go further by adding mediation locations as well. 
  • Recommendation 5. The VWC Commission should discontinue using the mediation process for disputes that usually aren’t resolved through the mediation process. Currently, everything that is contested is automatically referred to alternative dispute resolution, but almost no one engages in it. ADR is usually only used in full and final mediations for settlement in the context of Workers Comp in Virginia. 
  • Recommendation 6. The VWC Commission should make sure one or more deputy commissioners who are certified for conducting mediations are assigned to the Fairfax office. 
  • Recommendation 7. The Virginia General Assembly should “consider amending Title 65.2 of the Code of Virginia to require:
    • (i) “workers’ compensation insurers, including those employers who are self-insured, to make a determination as to whether a worker’s injury or disease is accepted as compensable and notify the worker, as well as the Virginia Workers’ Compensation Commission, of this decision within 30 days of receiving notice of the injury or disease”
    • (ii) the VWC “enforce this requirement through monetary penalties” on the employer’s insurers and on employers who are self-insured – for noncompliance with the 30 day timeline. 

This is a great idea and long overdue. There need to be consequences for those insurance adjusters who just “sit on their hands” and do not respond to claims that are filed. 

  • Recommendation 8. The Virginia General Assembly should consider adding language to the state Appropriation Act directing that the VWC Commission report each year on:
    • “(i) the extent to which workers’ compensation insurers, including those employers who are self-insured, are making compensability determinations and notifying workers on

their decisions in a timely manner after receiving notice of work-related injuries and diseases and 

(ii) actions taken by VWC to ensure the timeliness of these decisions.”

This recommendation states that the first report on this topic should be “submitted by VWC to the House Appropriations and Senate Finance committees no later than June 30, 2022.”

  • Recommendation 9. The VWC Commission should, on request, be able to provide interpreters for mediations.

Virginia work injury attorney Joe Miller Esq. understands Virginia workers’ compensation law. He keeps current with any changes to the law and he understands the arguments insurance companies make to try to reduce or deny your claim. For more than 32 years, he’s been a strong advocate for injured workers. For help with your work injury or occupational illness claim, call Joe Miller, Esq., at 888-694-1671 or fill out my online contact form to schedule an appointment with an experienced Virginia workers’ compensation lawyer.

Common Workers’ Compensation Definitions

Posted on Thursday, January 30th, 2020 at 12:39 pm    

Here’s a list of many of the worker’s compensation terms used in North Carolina and Virginia work Injury cases. The definitions may vary Depending on the state and the Issues at Hand.

  • Accommodation. This is something to be wary of. When an employee has been released to light duty and the employer “accommodates” the employee’s light duty restrictions imposed by his or her doctor, the employee’s radar should be up. Accommodation is often a pathway to the light duty getting fired for cause for some trumped up minor infraction. While one cannot refuse a reasonable accommodation, injured workers returning to “made up” jobs at their workplace should be very careful how they behave when returning to work. 
  • Adjuster. The agent for the insurance carrier who reviews your claim and negotiates settlements. Employees should let an experienced workers’ compensation lawyer negotiate their work injury claim with the adjuster. 
  • Authorized treating physician. (ATP) The doctor who is the primary healthcare provider for the injured worker and has been authorized by the workers compensation insurance company to treat the injured worker. 
  • Carrier. The insurance company that pays and administers the workers’ compensation claim on behalf of the employer for the benefit of the employee.
  • Claimant. In Virginia, the employee who was hurt or suffered an occupational illness and is requesting medical and wage benefits. 
  • CMS. The Center for Medicare and Medicaid Services. They usually need to be consulted and the Medicare Set Aside must be approved by them if the employee and employer are going to enter into a settlement if the claimant is on Medicare or is likely to be on Medicare soon.
  • Compensable. This means that the worker was an employee and that his/her injuries were due to workplace employment. Workers need to show their claim has merit, is compensable, before any medical bills or wage losses will be paid.
  • Contested claim. This is when the employer denies liability for some reason such as that the worker is not an employee, the injuries were not due to work, or for some other reason.
  • Date of injury. This is the date the workplace accident occurred. Employees generally must notify their employer on the date the workplace accident occurred that they have suffered an injury. Any questions of law are based on the date of injury.
  • First report of injury. This is a form that the employee completes and submits to the state workers’ compensation commission notifying the commission that a worker was injured. A first report of injury is not the same as a legal claim. Employees should not assume that their claim will be proceed if an injury report is filed – even if the carrier makes payment. Employees need to file a proper legal claim with the help of an experienced workers’ compensation lawyer
  • Functional capacity exam (FCE). A test that examines a worker’s physical abilities to perform certain tasks – to assess the type of work the employee can and can’t do. A separate portion of the test may also assist the authorized treating physician in providing a permanent  impairment rating for any injured body parts such as the extremities. 
  • Impairment rating. After a worker reaches the point of maximum medical improvement, he/she should be examined to determine whether he/she has a partial or permanent impairment in particular body parts that are capable of being rated via the FCE and the authorized treating physician’s opinion. In Virginia this typically includes the extremities but excludes the back and neck. In North Carolina, the back and neck are ratable. 
  • Indemnity. Refers to the portion of workers comp benefits that constitute the weekly checks paid by the workers compensation carrier to the injured worker while he or she is physically unable to work, or must work at reduced capacity in a lower-paying job due to his or her injuries.  
  • Independent Medical Exam (IME). Essentially this is a second opinion usually ordered by the defense, to determine whether the treating physician’s assessment of the employee’s health and ability to return to work are accurate, or if any recommended treatment such as surgery is appropriate. In Virginia, an employee can go to his or her doctor of choice for a second opinion provided he or she pays for it; however, there is no formal procedure available in Virginia to obtain a second opinion or IME.  Virginia. In North Carolina, there is, in fact, such a procedure in place. In North Carolina an IME can be obtained at the workers compensation insurance company’s expense. The IME can be used by the employee to help show that that the employee should be entitled to additional treatment or that he or she is incapable of returning to work. 
  • Light duty. Many workers can’t return to their old job because their doctor places physical limitations on what they can do – such as that the worker shouldn’t lift more than 20 pounds during work. Light duty is less strenuous work. The worker may do light duty work as a transition while he/she is healing to their old type of work. Light duty may ultimately be the only type of work an employee can do due to his/her injuries. 
  • Marketing Your Residual Capacity to Work. If you are not under a current, ongoing Award in a Virginia Case, and if you have been put on light duty by your treating physician, then you need to do this, which is looking for work after light duty. Also, pretty much any North Carolina injured worker should look for work if he or she has been placed on light duty. If you are unable to find work within your restrictions, then this is one of the methods by which you may prove that you are entitled to ongoing temporary total disability benefits. 
  • Misclassification. Often, employers will try to classify a worker as an independent contractor so that the worker won’t be eligible for workers’ compensation benefits. A misclassification occurs when the independent contractor should be classified as an employee and thus is eligible for work injury benefits.
  • Maximum medical improvement (MMI). This is the stage when the treating physician determines that additional medical treatment won’t improve the employee’s health. It does not mean medical treatments should end since many workers need health treatments such as physical therapy to ensure their health doesn’t worsen. After an employee reaches MMI, he/she can be assessed for a partial or permanent disability. Workers generally should not consider settling their case until their health has reached the MMI state.
  • Medicare Set Aside. (MSA)This is a set of figures used to cover the cost of future medical expenses factoring in the amount that Medicare will pay for the worker’s medical bills due to his/her eligibility for Medicare. If the injured worker currently qualifies for Medicare, it is a necessary part of the settlement to have any such amounts approved by Medicare first. Even if the injured worker is not currently eligible, if there is any anticipation of application to Social Security Disability, then it would be wise for the injured worker to set aside monies in a separately maintained account to cover work-related injury treatment as part of any settlement. 
  • Nurse case manager. (NCM) A health professions hired by the employer to, in theory, helps the employee manage and keep his/her appointments. Often, the employer is mainly interested in having the nurse case manager find a reason to encourage the treating physician to return the employee back to full duty, thereby terminating benefits. Some unscrupulous NCM’s will also pull dirty tricks like giving last minute notifications of appointments, or sending letters that will not arrive in time regarding appointments so a case may be made for noncompliance with treatment requirements—another path to termination of benefits. 
  • Permanent and total disability.  If found, this will entitle the injured worker not only to the maximum of 500 weeks, but lifetime weekly compensation benefits beyond the 500 weeks due to complete and total loss of any capacity to work. In Virginia and North Carolina, it is defined by a set of very specific injuries in order to be qualified for permanent and total disability. Typically one may not apply for permanent and total disability until the injured worker approaches the end of the 500 week maximum of his or her receipt of benefits. 
  • Permanent partial disability or impairment (PPD or PPI). This is the assessment of how severe workers’ injuries are after he/she has reached MMI and what statutory work loss benefits should be paid. Usually expressed as a rating. 
  • Temporary Partial Disability. (TPD) An injured worker would be entitled to TPD if he or she has physical restrictions due to the work injury, and is able to return to work at a lower-paying job then the pre-injury job. In such case, the injured worker is entitled to 2/3rds of the difference between the pre-injury and light job wage. 
  • Temporary total disability (TTD). This is essentially the period when the worker is unable to work in any capacity and is receiving medical care and weekly checks from the workers compensation insurance company.  While a worker is on temporary total disability, he/she usually receives 2/3rds of his/her lost wages up to a statutory caps/limits of 500 weeks. This type of disability is classified as a temporary total disability (TTD) if the worker can’t do any work; however, in Virginia, an injured worker under an ongoing Award who is on light duty and is not being accommodated by the employer would also be entitled to TTD. Usually the same holds true in North Carolina under an accepted claim; however, a light duty employee should always be marketing his or her residual capacity to some extent in North Carolina, even on an accepted claim. 
  • Settlement. Also known as a full and final settlement sometimes referred to as a “clincher” in North Carolina. A resolution of the employee’s overall claim usually occurs only after the worker has reached the MMI stage. Typically, the worker will receive a lump-sum payment to cover future medical bills and any future indemnity benefits that the worker would likely be entitled to if the claim was not settled. Adjustments may be made to the total amount due to reflect that the worker is getting the funds now and should be able to earn interest on the settlement amount.  (Present Value). 

The main thing to remember insofar as settlements in workers compensation are concerned is that all settlements are voluntary on the part of the workers compensation insurance company. Unlike Court cases, where a verdict can be obtained, in most cases, if the workers compensation insurance company does not want to settle, then they do not have to settle. If the carrier is paying what it has been Ordered to pay by the Commission, then that is all it is required to do. A skilled workers compensation lawyer can often help employees get the best settlement for their types of injuries and medical situation, but there are never any guarantees. Any attorney who says he or she can guarantee a settlement is lying. 

North Carolina and Virginia work injury attorney Joe Miller Esq. understands the legal issues, understands how to negotiate with insurance companies, and understands how to review your medical conditions. He’s been a strong advocate for injured employees for more than 30 years. He’ll help you file and pursue your workers’ compensation claim. To schedule an appointment with attorney Joe Miller, call 888-694-1671 or fill out our online contact form

Occupational Disease for First Responders

Posted on Wednesday, January 8th, 2020 at 9:52 am    

OCCUPATIONAL DISEASE: PRESUMPTIONS FOR FIREFIGHTERS, POLICE, AND OTHER FIRST RESPONDERS

Normally, injuries and accidents that occur under Virginia Workers Compensation must consist of a specific traumatic event that caused a sudden anatomical change in the body to the injured worker; however, there are a whole class of cases that do not follow that approach and these are cases which involve an occupational disease.  Sometimes these can be hard to prove, but the Virginia legislature has made it easier for police, firefighters, sheriffs, and other first responders and public law enforcement officers to prove occupational disease claims. 

Without getting into all the specifics of proving an occupational disease, which is covered in other articles, suffice it to say that an occupational disease means a disease arising out of, and in the course of employment, but not including an ordinary disease of life to which the public is equally exposed. 

What this definition means is the oftentimes, even though someone may be suffering from a disease that was directly caused by exposure for instance, to hazardous chemicals on their job, if it is the kind of disease not specifically recognized as arising directly out of the employment, and therefore an ordinary disease that the public may also get, such as a form of cancer, then the disease is not going to be recognized as an occupational disease.  It will be considered an ordinary disease of life and the standards of proof for that are much higher than for a regular occupational disease. 

The good news is that the Virginia legislature carved out an exception to this rule for police, firefighters, sheriffs, and other first responders and public law enforcement officers. 

What this law says is that if you are a firefighter, police officer, or other first responder, then for certain diseases, such as respiratory diseases, hypertension or heart diseases, and certain types of cancers, it is to be presumed that the disease in question is in fact an occupational disease suffered in the line of duty.   

Now this presumption can be overcome by the defense if, for instance, they can prove that the disease came about for exposure to something completely unrelated to work, and that the first responder was not in a position to be exposed to anything that might give rise to the disease in question. 

Unfortunately, insofar as firefighters are concerned, the law as it stands contains some barriers and defects that make it hard to prove some occupational diseases. 

The statute lists a number of presumptions for cancers that firefighters and other first responders are entitled to and they are for the cancers of leukemia, pancreatic, prostate, rectal, throat, ovarian, or breast cancer.  The problem is that the law as it stands now also requires that the International Agency for Research on Cancer (IARC) recite in their listings that whatever the injured worker was exposed or came into contact with to during their job actually causes, or may cause the type of cancer the injured worker is suffering from.   They also require that the first responder with one of these types of cancer have completed 12 years of continuous service. 

The good news is that according to the case law, the injured worker need only prove one instance of exposure to the toxic chemical during his or her career that may cause cancer as identified by IARC. 

The bad news is that at least one form of cancer on the list specifically has no known cause and that is pancreatic cancer

Pancreatic cancer is one of the few cancers where medical science currently simply has no idea as to the cause.  Apparently, the only thing that might contribute to it is cigarette smoke. 

Because of this, many agree that the law as currently written, in this regard, for lack of a better word, is ridiculous. The current law in Virginia actually says that pancreatic cancer is one of the presumptive types of cancer that is considered to be contracted in the line of duty, but at the same time, the law also says you have to prove there was exposure to something that might cause it, and as we just said, nothing is known to do that except possibly cigarette smoke. So basically, the Legislature has drafted a law that—at least with respect to pancreatic cancer—is completely useless. 

Moreover, a State Review Board has also noted that the law is lacking as it currently stands. The Joint Legislative Review Commission (JLARC) Audit Report of the Virginia Workers Compensation Commission that was released on Monday, December 17, 2019 says on page 3, in the headline: “Requirements to establish cancer presumptions are unreasonably burdensome and not supported by science.” 

The JLARC specifically talks about firefighter benefits and how many claims are denied because the firefighter failed to prove proper exposure to the carcinogen that caused his or her type of cancer.  The JLARC then suggests that all an injured firefighter should have to prove is that he or she fought fires and was exposed to smoke. They say that should be sufficient, given the toxic soup of chemicals that any scientist and industrial hygienist knows is released by any house or industrial fire. I certainly could not agree more. 

We rely on our first responders to protect us. They put their lives on the line for us every day. Can we not make it as easy as possible for them to make a claim in the event they suffer because of the years of dedicated service to this cause? 

Hopefully, plans are afoot in Richmond to change these laws so this never happens to any firefighters or other first responders who in the future develop cancer or any of the other diseases given a presumption in the law. 

In the meantime, if you have been advised that you are suffering from an occupational disease, please do not wait to contact a worker’s compensation lawyer to assist you. You only have two years from the date that the diagnosis was first communicated to you by a physician to file a claim form with the Virginia Workers Compensation Commission. 

If you have been exposed to toxic chemicals in your line of work, and your doctor supports that your disease came from that exposure, and you’re a member of a Union, know that your Union should be able to steer you in the direction of an expert such as an industrial hygienist, or other such expert, who can assist in proving your exposure to the relevant chemicals in your claim. You may very well need his or her testimony in order to win. 

Joe Miller has been representing victims of on-the-job injuries and occupational disease for over 30 years. If you or a loved one has been injured on the job or suffered an occupational disease, please do not hesitate to call us toll free at 888-694-1671 or complete our online contact form 

 

Cold Weather Injuries and Workers’ Compensation

Posted on Thursday, January 2nd, 2020 at 3:41 pm    

As North Carolina and Virginia get ready for lower temperatures, it helps to consider some of the causes of cold weather injuries. While many conditions are more severe in northern states; southern climates do experience snow, ice, frost, and winter chills. The effects of cold weather are most prominent among anyone who works outdoors – such as construction workers and agricultural workers. Other workers who are in danger of cold weather injuries include:

  • Workers who build and maintain roads
  • Airport personnel
  • Dock workers
  • Workers who work in food storage, processing, and packing
  • Window cleaners
  • Public safety workers such as police, firefighters, and emergency technicians
  • Postal workers
  • Trash collectors and sanitation workers

The good news for anyone who works in cold weather or is affected by cold weather is that that as long as the accident occurred during work, the employee should be able to file a work injury claim – without the need to prove an employer was at fault for not salting the ice, providing warning signs, or taking other precautions.

Causes of cold weather injuries

Some of the many different types of winter workplace injuries that occur during cold weather are:

  • Slips and falls because snow and ice was not cleared from sidewalks, parking lots, and other outdoor sites
  • Slips and falls because workers and visitors track melting snow water and dirt into the entranceways of the workplace building
  • Vehicle accidents due to cold weather. Ice, especially black ice which isn’t readily visible, can easily cause a driver to lose control of his/her vehicle. Truck drivers who are injured while delivering goods, construction workers who use vehicles at construction sites, and salespeople who are on the road – all can claim workers’ compensation benefits if they are hurt in a car or truck accident while on company time.

Employers should take extra precautions to:

  • Ensure their workers are properly dressed for the cold
  • Ensure that vehicles are inspected so they don’t break down on the roads
  • If necessary, make sure vehicles are equipped with appropriate snow tires
  • Ensure that machines and equipment are in working order if they are to be used outdoors or in cold conditions
  • Make sure they review weather forecasts and plan accordingly

Hypothermia, Trench foot, and Frostbite

Hypothermia is a major risk for workers who work outside or who work inside where there isn’t a proper amount of insulation or heat. Often, it’s the inside workers who are at most risk for hypothermia because outside workers take steps to prepare for working in the cold starting with making sure they are properly dressed. 

Hypothermia is the falling of the body’s temperature below 95 degrees, 3.6 degrees below the body’s normal temperature of 98.6 degrees. Hypothermia, if not treated promptly, can be threaten a worker’s life. The disorder can cause cardiac failure and breathing difficulties. Survivors may suffer gangrene and frostbite – especially in their fingers and toes.

Some of the symptoms of hypothermia include:

  • Shivering
  • A pulse that is weak
  • Speech that is slurred
  • A lack of coordination
  • A poor pulse rate
  • A lack of energy
  • Tiredness and fatigue

Some of the key risk factors for hypothermia in workers include:

  • Being in the cold for long stretches of time
  • Getting wet
  • Inadequate clothing
  • Poor heating systems

Wind is an extreme risk factor for hypothermia because it lowers the effective temperature and can remove the warm air at the skin level. Areas that aren’t properly protected are especially vulnerable to losing heat. Contact with ice and other cold surfaces can also increase the risk of hypothermia.

Other risk factors for hypothermia include drinking alcohol, the use of drugs, some medications, the age of the worker, and how tired the worker is. Workers who are exposed to cold should dress in layers, keep dry, and pay special attention to keeping their head, hands, and face warm. Employers should allow for extra break times in cold weather. Employers should also rotate their work force more often so no worker is in the cold for too long.

Trench foot. This condition occurs when the foot is wet. To stop any heat loss, the foot’s blood vessels constrict, which can cause circulation to be shut down. If not treated correctly and in a timely manner, the constrictions can cause tissue to die. Some of the symptoms of trench foot include blisters, redness of the skin, swelling, and numbness.

Frostbite. The disorder occurs when the skin and the tissues underneath the skin begin to freeze. Usually, frostbite occurs in the toes and the fingers – so that the body can keep the vital organs working. Any worker whose skin turns white or gray, whose skin becomes hard, or who develops blisters or numbness should be treated by medical professionals immediately.

Workers who suffer hypothermia, trench foot, frostbite due to direct exposure to the cold or suffer broken bones and other injuries due to workplace accidents have the right to file a work injury claim. The claim should include:

  • Payment of all medical bills including doctor visits, hospital stays, and medications
  • Compensation, primarily at the 2/3rds rate of their lost wages for the time they can’t work
  • If any part of the body requires amputation, the worker may be entitled to statutory benefits for a permanent disability.

North Carolina and Virginia workers’ compensation Lawyer Joe Miller Esq. has been fighting for injured employees for more than a quarter of a century. He’ll fight the efforts of the insurance company to deny or limit your claim. He’ll contest every attempt to force you back to work before you’re ready. His priority is helping you get all the medical benefits and lost wages the state laws permit. To review your rights and to speak with a strong advocate, call attorney Joe Miller at 888-694-1671 or complete my online contact form

Common Misconceptions of Workers Comp Cases

Posted on Friday, December 13th, 2019 at 1:33 pm    

Workers Comp Lawyer Joe Miller explains three of the most common misconceptions surrounding workers compensation:

Don’t Miss Your Doctors or PT Appointments

Posted on Wednesday, December 11th, 2019 at 1:33 pm    

Workers Compensation Lawyer Joe Miller talks about the negative consequences to your case if you miss your doctor’s appointments or physical therapy appointments when you are under an Award in Virginia or an Accepted Claim in North Carolina.

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 888-694-1671. or fill out my contact form to make an appointment.

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