Will I Lose my Comp Checks if I’m Laid Off due to the Coronavirus?

Posted on Thursday, March 26th, 2020 at 11:10 am    

Clearly many folks are concerned right now about the effect on their weekly compensation checks of any potential layoff of themselves and their fellow employees at work or company closures due to the severe economic downturn and mandatory closures related to the Coronavirus. 

This is a very important question right now and also this particular question regarding layoffs happens to be an evolving and very active area of VA Workers Comp law.

The short answer is if you are currently under an ongoing, finalized Award for benefits, meaning an Award for weekly checks for either Temporary Total or Temporary Partial Disability, then NO, you will not lose your benefits; however, if you are NOT under an Award yet and your position is permanently eliminated or the layoffs are clearly permanent with no chance of re-hiring, then you will likely have a very difficult time of trying to obtain comp check benefits from the date of such layoff forward. You may only be able to claim benefits up until the date of the layoff.  It’s not impossible to prove ongoing benefits in a permanent layoff situation, but you will be required to rise to a very high level of proof to show that your inability to obtain a job is due to your disability and not just to your job being eliminated permanently. 

That being said, if the layoff is only temporary—as many will likely be in our current situation—then if you are not under an Award and on light duty, you would still be able to claim benefits; however, you would need to engage in active marketing of your residual capacity to work in order to prove your inability to find a job.  And of course, you will likely end up at a Workers Comp Commission Hearing to prove you engaged in adequate marketing. 

Of course, those held out of work 100% by their doctors due to their work injuries and have the physician’s work notes to prove it would not need to prove marketing.  

If this all seems confusing, I encourage you to first see my video on the importance of being under an Open or Ongoing Award for benefits in Virginia. It’s important to understand what an Award accomplishes for you in Virginia.  

So why is someone under an ongoing or Open Award in a better position compared to someone who is not in a layoff situation?  

It’s because when you’re under an ongoing Award, that Award is a proclamation or Order by the Virginia Workers Compensation Commission that you are entitled to the weekly benefits stated in that Order on an ongoing basis, until proven otherwise by the defense.  In other words, you have met your burden and you have won your case. Many times, the Award occurs due to an Award agreement, but the result is the same—once that Award has been entered by the Commission and the 30 day appeal period has passed, the Order is Final and you have won. 

When you have an ongoing or Open Award for weekly benefits, it becomes the defense’s burden to prove you’ve been returned to full duty and that you are capable of performing your pre-injury work if they want to get out of paying you those weekly benefits.  There are a few other ways for them to stop the Award, such as failure to comply with medical treatment or vocational rehabilitation, but they’re not relevant to our discussion right now. 

If the defense cannot prove you are capable of a return to full duty, then you are going to remain under your ongoing Award and they still have to pay you your ongoing, weekly benefits  even during the layoff and even if the layoff is permanent.  

Now what about folks who are not under an Award yet, but are trying to prove one?  

The case law is clear that for folks who are not yet under an Award, the difficulty of proving you are entitled to benefits really depends on whether the layoff is temporary or permanent. 

This is because an injured worker who is not yet under an Award has no Order from the Commission regarding anything. Nothing has yet been proven, so the burden of proof remains on the injured worker to show he or she is entitled to benefits. 

In a temporary layoff situation, if you are on light duty, assuming your employer does not accept you back at light duty status, so long as you are able to prove sufficient marketing of your residual capacity to work (i.e. looking for work elsewhere within your physical restrictions) during the temporary layoff, you should be able to prove you’re entitled to benefits. Of course, you will likely have to go to Hearing to prove that. 

Again, if you are in a temporary layoff, and your authorized treating physician has you out 100% due to your injuries, then since you currently have no residual capacity to work per your doctor, you do not have to market or look for work.  You would only need to prove your total incapacity with your doctor’s work notes and office notes. 

Unfortunately, for those of you whose positions are eliminated and are fully and permanently laid off along with your coworkers, if you are on light duty and not yet under an Award, you will  unfortunately find it much more difficult to be able to claim ongoing weekly workers comp benefits. The case law in such circumstance requires a higher level of proof to show that your economic loss is due to your injury and not the elimination of your job.     

The Commissioners and Judges have reasoned in the case law that since you don’t yet have an Award, and your job has been eliminated, the burden is on you to prove economic loss due to your work injuries. And since the burden is on you for proof and since the reason you don’t have a job is because your job was permanently eliminated, then you need to prove your economic loss is actually related to your work injuries and not just the fact that your job does not exist any longer. In such cases, just doing the marketing/looking for light duty work as usual is probably not enough. There needs to be proof that not only can you not find a job, but the reason you cannot find a job is because of your work restrictions as set forth by your treating doctor. If you don’t have such proof, then the Commission will find that the loss is not related to your work injury. They will find that it is related to the fact that your job no longer exists. 

Such proof may be through the hiring of an expert such as a vocational rehabilitation expert, and/or through some kind of testimony or other evidence from one or more of the potential employers where you applied that you could not be hired because your work restrictions could not be accommodated. 

We think that the decision by the Court of Appeals back in 2016 which raised the standard of proof for permanently laid off employees was wrong and a harsh result, and in fact there were strong dissents by Judges on the case, but unfortunately those Judges were outvoted and that is the law in Virginia. 

The only good news is that in many of the Full Commission decisions that have followed this 2016 Court of Appeals Case, the Commission has gone to great lengths to say it does not apply to the situation at hand. Clearly, the Full Commission also feels the Court of Appeals went too far and takes every opportunity to try to limit the harsh effects of that decision. 

Also, just to be 100% clear, it is very important to distinguish between an Open or Ongoing Award and a Closed Award. A Closed Award is for some past period of weekly payments that has now ended because you have returned to work. Although such an Award contains a lifetime medical benefit and is also evidence that your claim is compensable (meaning there is no longer a defense that you did not have a legitimate, on-the-job injury) in terms of attempting to get your checks started again because you have been laid off, it’s almost like have no Award at all.  In other words, if you’re on light duty, you would have to prove it’s a temporary layoff and you would have to prove marketing just like the folks with no Award at all. And just like those folks, you would not be able to prove any entitlement to ongoing checks if your layoff became permanent. 

We hope this article has been helpful. 

From all of us here at Joe Miller Law/The Work Injury Center, please stay safe, please follow the CDC COVID-19 Guidelines for prevention,  and God Willing we will all get through this safely together. 

Attorney Joe Miller has been representing injured workers in Virginia and North Carolina for over 32 years. If you have any questions about a worker’s compensation injury incurred by you or a loved one, please do not hesitate to reach out to us at 888-667-8295 or fill out our online contact form

Please do not wait to contact us, as there are time deadlines for filing your claim. If you fail to meet those deadlines, your right to benefits will be forever lost. 

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 888-667-8295. or fill out our online contact form

Your Settlement Demand Went Out. Now What?

Posted on Sunday, December 15th, 2019 at 1:35 pm    

Workers Compensation Attorney Joe Miller discusses what to expect after your settlement demand is sent off to the insurance company:

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:

Reasons to File a Formal Workers’ Compensation Claim if the Employer is Already Paying for Your Medical Benefits and Lost Wages

Posted on Tuesday, November 5th, 2019 at 10:22 am    

It’s tempting for many North Carolina and Virginia workers to think that their employer and the employer’s insurance company are on their side – especially when they’re paying you 2/3rds of your lost wages and paying for your medical bills. While this may seem nice, it can hurt your case in many ways. The best course of action is to consult with an experienced work injury lawyer who will protect your rights by filing a formal workers’ compensation claim on your behalf. The bottom line is that if you are not under an Award in Virginia or you do not have an Accepted Claim in North Carolina, your benefits are in serious jeopardy. 

In Virginia, a claim is formally started by way of a Claim Form. In North Carolina, this is done via a Form 18. 

Some of the reasons workers need to file a formal claim, instead of relying on the informal kindness of their employer are:

  • The employer can stop the payments at any time. Without a formal Award Order from the Virginia Worker’s Compensation Commission, the burden remains on the employee to show he or she cannot work. If the injured worker is released to return to light duty, even a lifting restriction of one pound, the employer and insurance carrier are within their rights to CUT OFF BENEFITS. Why? Because there has been no pronouncement by way of an Award Order that the injured worker is entitled to benefits. 
  • The filing of a Claim Form starts the clock running for the employer/carrier to declare whether or not they are accepting or denying the claim. The Virginia Workers Comp Commission (VWCC) will typically issue a 20-day Order which requires the employer or carrier to declare one way or another what their position is and why. If they agree your claim is compensable, they will issue an Award Agreement, which is usually filled out and sent to you by the claims adjuster or defense attorney. You should have that Agreement reviewed by a competent Workers Compensation Attorney before signing, but you SHOULD NEVER let an Award Agreement sit around unsigned without either signing it and sending it back to the adjuster or consulting a worker’s comp lawyer. This is because once the Agreement is received by the VWCC, they will convert it into an Award Order, which means you have won your case. 
  • In Virginia, once the Award Order is entered and 30 days pass, the burden of proof then automatically shifts to the employer. Now, even if the injured worker is released to light duty, the benefits will not stop unless and until the employer can either return the injured worker to work in the pre-injury job, or find another job at the same or greater pay for the injured worker. 
  • In North Carolina, the Form 18 starts a 90-day countdown whereby the employer is required to let the injured employee know whether or not they are accepting the claim, conditionally accepting the claim, or denying the claim. They do this through one of three forms: 

A Form 60 is Filed by the Carrier if they are accepting the claim. 

A Form 63 is filed by the Carrier is they are conditionally accepting the claim (i.e. they need to investigate a few things first)

A Form 61 is filed by the Carrier if they are denying the claim. 

  • There are time limits that you have to file a claim, which are two years from the date of injury. Workers who don’t file a claim could:
    • Lose the right to lifetime medical care for your work injuries, and potential settlement of the employer’s lifetime obligations;
    • Lose the right to receive any further ongoing compensation, even if your doctor removes you from work due to your injuries. 
    • Lose the ability to be compensated for a permanent impairment rating. These ratings, applied after the employee reaches maximum medical improvement, often provide substantial additional benefits for workers who can return to work (and those who can’t return to work) – but have a permanent medical injury that meets the state law requirements
    • Lose the right to seek vocational rehabilitation if the worker can’t return to an old job but may be able to learn the skills for a new job
    • Other benefits depending on your health status

Employees should understand that there is no expense to file a claim but, as mentioned, there are time limits – generally one day less than two years from the date of the accident. These limits can be extended in some cases if the employee is receiving benefits, but a competent worker’s comp attorney should be consulted to see if you are being protected appropriately. When in doubt, FILE. 

 

Virginia and North Workers’ Compensation Attorney Joe Miller Esq. has the experience and skills to help you get your full benefits and help you fight attempts by the employer to terminate or reduce your benefits. He has helped thousands of workers get strong recoveries and has been representing injured and ill workers for more than a quarter of a century. To speak with a persuasive workers’ compensation attorney, call lawyer Joe Miller at 888-694-1671. or use my contact form to schedule an appointment.

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.

More Information on Clincher Agreements

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

Why employees consider a clincher agreement?

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

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

The disadvantages of a clincher agreement

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

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

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

How is the amount of the lump sum payment determined?

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

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

 

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

 

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

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

 

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

 

 

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

 

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

How are future medical bills addressed in a clincher agreement?

 

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

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

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

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

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

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

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

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

North Carolina Workers’ Compensation Attorney Joe Miller Esq. has been fighting for injured workers in North Carolina and Virginia for more than 30 years. He is highly respected by his legal peers and former clients. He’ll fight to get you every dollar you deserve. He’ll contest any effort by the employer to terminate or reduce your benefits. Call attorney Joe Miller today at 888-694-1671. or use my contact form to schedule an appointment. 

 

Frequently Asked Workers’ Compensation Questions

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

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

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

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

Who can benefit from workers’ compensation?

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

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

Must I show the employer was negligent?

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

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

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

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

What are the standard work injury benefits?

Injured workers typically receive two types of benefits:

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

 

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

 

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

 

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

 

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

 

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

 

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

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

Which doctors must I see? 

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

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

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

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

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

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

Lawyer Joe Miller has helped thousands of injured and ill employees get their full workers’ compensation benefits. He represents workers in North Carolina and Virginia. He’ll answer your questions and explain the workers’ compensation process. He’ll work aggressively to help you get all the benefits you deserve. To review your case now, call  attorney Joe Miller at 1-(888) 694-1671 or use my contact form to schedule an appointment.

Vocational Rehabilitation Rights for North Carolina Workers

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

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

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

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

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

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

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

How vocational rehabilitation is defined

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

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

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

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

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

Who provides the Vocational Rehab Services

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

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

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

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

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

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

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

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

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

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

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

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

Attorney Joe Miller fights for all injured workers. He has decades of experience working with vocational rehabilitation specialists. He understands when employers and insurance companies are truly interested in helping an employee get a new job and when the employer (or insurance company) is just trying to terminate a worker’s benefits or apply pressure to settle.  To learn if you are likely to end up in vocational rehabilitation, call attorney Joe Miller at 1-(888) 694-1671 or use my contact form to make an appointment.

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