Vocational Rehabilitation Rights for North Carolina Workers

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

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

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

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

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

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

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

How vocational rehabilitation is defined

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

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

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

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

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

Who provides the Vocational Rehab Services

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

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

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

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

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

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

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

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

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

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

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

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

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

Types of Small Reimbursements in Workers’ Compensation Cases

Posted on Friday, April 5th, 2019 at 3:06 pm    

The bulk of the payments in a North Carolina or Virginia workers’ compensation claim are the wage loss benefits and the medical expenses. Wage loss benefits are generally paid at the rate of 2/3rds of the worker’s average weekly wages (prior to the accident) – up to preset maximums. The wages are paid until the employee can return to work. Additional payments may be made if the worker has a full or partial permanent disability.  Adjustments to the pay are usually made if the employee can return to work but at a lower paying salary.

Medical payments cover surgeries, doctor visits, psychological counseling, and a variety of different therapies. The payments are made by the employer’s insurance company as long as the treatments are helping the worker get better. Even when an employee has reached maximum medical improvement (no additional medical care will improve his/her condition), the worker is still entitled to have the medical bills paid so that the condition doesn’t worsen. In other words, the worker is entitled to medical coverage to maintain his/her health.

Vocational rehabilitation

Some workers may not be able to return to their prior work because of the severity of their injuries. North Carolina and Virginia allow these workers to explore the option of vocational retraining. The employer may be required to pay the cost of training the worker or helping the worker get an education – up to certain limitations. Helping workers acquire new schools often means they can work in new jobs at somewhat similar pay. Speak with a skilled North Carolina or Virginia workers’ compensation lawyer to learn if you are entitled to vocational rehabilitation expenses.

Mileage reimbursement to the doctors

Workers often need to treat with many different doctors. Additionally, they may be required to see a doctor or health provider multiple times. Many workers, for example, can see their physical therapist several times a week for months at a time.

The cost to get these doctors can add up quickly. In North Carolina and Virginia, workers are entitled to be reimbursed for the cost to see their own doctors, to travel to an independent medical examination when requested, and for vocational rehabilitation support and schooling. The mileage reimbursement expenses continue for health care even if the worker has returned to the job – provided the worker needs the medical treatments to stay healthy.

The mileage expenses are calculated as follows:

In North Carolina, workers can claim mileage reimbursement if the round trip to the doctor or therapist is 20 miles or more. The amount the worker will receive is generally set by the North Carolina Industrial Commission. The NCIC, in turn, sets its rates based on the Standard Mileage Rate that is annually prepared by the IRS.

According to the NCIC, the mileage reimbursement rates are as follows:

“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.”

According to the IRS, the rates for 2017 are 53.5 cents per mile and for 2018, the reimbursement rate is 54.5 cents per mile.

The costs are meant to cover expenses for gasoline as well as wear and tear on the vehicle.

“The Industrial Commission has given the self-insurers and insurance carriers permission to pay drug and travel expenses directly to the employee without approval from the Commission.” This means that, normally, the worker will keep a record of the mileage and then submit the record to the employer’s insurance company. The record should include the date of the visit to the health provider, the identity and location of the healthcare provided, and the total distance traveled. North Carolina actually provides a form, called a Form 25T, upon which the worker should submit his or her mileage information to the employer.  It’s generally a good idea to mark down the odometer amount before the trip starts and at the end of the return home. The distance from your home to the health care provider can also be tracked by using Google Maps.

Generally, workers should be reimbursed within a few weeks from the time they submit their form but unfortunately there is no rule that sets for the time frame by which the employer/insurance carrier are required to reimburse the employee. Unfortunately, some carriers are delinquent in this regard and we sometimes have to file a motion with the Commission if an unreasonable amount of time has passed before payment has been received by the injured worker.  Depending on the amount of medical and/or vocational travel you are engaging in, it’s a good idea to submit mileage reimbursement requests on a monthly basis

Workers who take public transportation are generally allowed to be reimbursed for the cost of the public transportation. Workers who use their car to see their health care provider should also add in the cost of parking – if there is any.

The mileage reimbursement rates in Virginia are based on the same principles.  Virginia likes workers to:

  • Indicate the dates traveled and the addresses (the workers and the health care providers)
  • Attach a MapQuest or Google Maps printout of the directions and mileage
  • List any parking, bridge tolls, or public transportation costs. This can include the cost of a taxi.
  • In Virginia, mileage is reimbursed at 55.5 cents per mile.

 

Reimbursement includes the mileage reimbursement and the other miscellaneous costs – tolls, public transportation, and taxi. Workers should also include a statement from the healthcare provider to confirm they were at the appointment on the scheduled dates. Virginia does not have the 20-mile round requirement that North Carolina does.

At the North Carolina and Virginia Law office of Joe Miller Esq., we’ve been fighting for injured workers for more than 25 years. We fight to get our clients every amount they deserve – large and small. We’ll fight to get you approved for worker’s compensation benefits and explain which forms you need to complete to get paid. To speak with an experienced work injury lawyer, phone 1-(888) 694-7994 or fill out my contact form to schedule a free appointment.

What Are Workers’ Compensation Compromises and Releases?

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

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

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

General considerations

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

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

Additional questions include:

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

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

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

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

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

There are several reasons for entering into a compromise and settlement

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

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

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

There may be additional factors

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

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

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

Changes to the Open Award in Virginia Workers’ Compensation Cases

Posted on Sunday, June 7th, 2015 at 8:53 am    

In Virginia, the entry of the Open Award isn’t 100% foolproof. The employer has an additional 30 days AFTER the entry of the Award to withdraw the Award Agreement. This is also referred to as the Award becoming FINAL. Until those 30 days pass, the Award is not yet final. This means if it is withdrawn during that first 30 days after it is entered, the Award will be vacated and it will be as if the Award was never entered. (more…)

Who Is the Authorized Treating Physician in a Virginia Workers’ Comp Case?

Posted on Tuesday, June 2nd, 2015 at 12:00 pm    

The Authorized Treating Physician. The authorized treating physician in a Virginia workers’ compensation claim merely refers to the doctor who the workers’ compensation carrier has agreed to allow to coordinate and direct your treatment. It is also the physician through whom they agree to pay for all recommended medical treatment. This medical provider is usually chosen and one of two ways: (more…)

Ways Your Employer Will try to Change the Open Award

Posted on Friday, May 22nd, 2015 at 12:00 pm    

Employers will try to change even an Open Award in a workers’ compensation claim. They will normally do this through an Application to Terminate Benefits (or a Termination of Benefits Agreement) because you are able to return to work. The basis for filing this application will be a report from a doctor that you are able to do your job. (more…)

Why an Award Agreement is not Enough to Get Your Comp Benefits Paid In Virginia

Posted on Friday, May 15th, 2015 at 12:00 pm    

In other articles we’ve spoken about an Award Agreement. That is a document which you may sign whereby you and the workers compensation insurance company agree that you are to be paid certain benefits under the Virginia Workers Compensation Act.

But just because you signed and returned and award agreement to the adjuster doesn’t mean you get paid. The employer still needs to sign it AND forward to the Commission AND then the Virginia Workers’ Compensation Commission has to convert that agreement into a formal AWARD ORDER. Then 30 days must pass before the Award Order is considered FINAL. Until that happens, almost any change in circumstance will result in the comp carrier reneging on their agreement to pay you, which means you have nothing. (more…)

What is an Award Agreement in Virginia Workers’ Compensation Claims?

Posted on Monday, May 4th, 2015 at 5:21 pm    

Have you filed a claim for workers’ compensation benefits? If so, your employer has 20 days to respond to your claim, which can include denying your claim, even if you already started getting benefits. Another option is to accept your claim and send you an award agreement. This video explains why an award agreement is important in your claim and what can happen even if you have an agreement.

Read the full video transcription here.