Posted on Monday, February 18th, 2019 at 5:41 pm
Here Virginia Workers Comp Attorney Joe Miller reviews the Settlement Process in a Virginia Workers Compensation Case. Although he is addressing his clients, if you are looking at settling your case, you can benefit from this “inside baseball” view of settlements as well.
Posted on Wednesday, January 9th, 2019 at 5:01 pm
In this video, Attorney Joe Miller explains why you should NEVER obtain a side job or other “under the table” job while receiving workers’ compensation benefits:
Posted on Wednesday, January 9th, 2019 at 4:56 pm
Here’s our third series in common questions and answers about North Carolina and Virginia worker’s compensation.
Employers have the right to appoint a nurse case manager to help injured and ill workers with their medical needs. Employers will say that the nurse case manager is just trying to help the worker get healthy. That’s not always the case, in fact it is mostly not the case. While a nurse case manager can help coordinate your appointments and help get workers to their treatment or therapy sessions; nurse case manager’s main goal is to show that you are ready to return to work. They are agents of the insurance company and one of the defense professionals usually hired to do the insurance company’s dirty work.
What is that “dirty work.” The insurance company’s interest is to get you back to work as soon as possible. In Virginia, if you are not yet under an Award, and you get released to light duty— that means ANY light duty—even with a one lbs lifting restriction—then the insurance company does not have to pay you a penny, even if your employer does not accommodate your restrictions.
Employees should review with their worker’s compensation lawyer exactly what the nurse case manager can and cannot do. Nurse case managers do have the right to know about your appointments. They do have the right to go the doctor’s office or therapy office. They do have the right to obtain bills and reports from the health provider’s office. They do have the right to discuss your medical condition (including the diagnosis, necessary treatments, and prognosis) with the health professional. They can help you get transportation to the medical office.
They don’t have the right to be in the examination room with you the entire time, if you do not want them in there. At least some portion of your examination with your doctor should be private so you’re comfortable explaining exactly why you’re hurting. Your doctor should know you can’t lift objects or that it hurts when you move. You also have the right to be present when the nurse case manager discusses your case with the physician. The nurse case manager and the doctor are supposed to be there to help you – not bow to the insurance company’s desires. They do not have the right to “manage” your medical care by deciding where or with whom you will treat. Those decisions belong to the authorized treating physician.
For the most part, the nurse case manager’s access to your physician will be dependent on how open your physician is to dealing with the nurse case manager. Some are more open to allowing the NCM into the examination room, while others are less open to it. Our interpretation of the law is that their only obligation is to provide the records to the NCM. Beyond that, your physician is under no legal obligation to talk to the NCM. The issue is that many physicians realize that if they completely “shut out” the NCM, it is less likely that the physician is going to get any further referrals from the insurance company. In other words, it’s bad for business. Most patient advocate type physicians will walk a fine line of communicating with the NCM, but maintaining their own independent medical judgement, despite the pleas of the NCM to return you to work before you are ready.
Sometimes, the employer or your own lawyer will request an independent medical examination (IME). An IME is a physical and oral examination of your current health condition. It is performed by a physician who is not one of your treating doctors. In North Carolina, you are entitled to an IME with a physician of your choice respect to your permanent impairment rating if you do not like your treating physician’s opinion in that regard, at the defendant’s expense. In North Carolina, you are also entitled to an IME at the defendant’s expense for general issues as well; however, there must either be an agreement by both sides as to who will perform the general IME, or the Industrial Commission will have to order who will perform the IME via a motion filed by the attorney.
In Virginia, you have no right to obtain an IME at the defendant’s expense; however, you are entitled to see any doctor you like at any time at your own expense. In North Carolina, it is not advisable to do this, as the IC will generally ignore unauthorized examinations and opinions.
On the other side, the employer’s insurance company also has the right to request an IME at any time in both Virginia and North Carolina. The defense may request an IME to try to show you are ready to go back to work, or when there is a question as to whether a procedure or surgery recommended by your physician is medically necessary. The doctor is hired by the employer’s insurance company which means he/she is not your friend. The employer physician normally only sees you one time at the IME. He or she will take an oral history and then conduct the physical exam.
You and your lawyer have the right to challenge any report the IME doctor makes that suggests you can return to work or that you can go back to work with some restrictions. Your lawyer will normally seek to have one of your own doctors review the IME doctor’s report – and explain where the report is not accurate. Your treating doctors can show what the IME doctor misses because he/she only sees you one time and why any conclusions about your ability to work are not true.
Some workers can’t return to the type of job they did before their accident. For example, construction workers who needed to be able to lift 50-100 pounds or more to do their job may now not be able to lift much more than a few pounds. Going back to work with restrictions may not be an option – either because there are no suitable restrictions (you just can’t do physical labor any more) or because the employer doesn’t have a job that matches your abilities.
Since you can’t do the job you’ve been trained for, you may be eligible to be retrained to do a new type of job. The new job is often more clerical and administrative if you were a physical laborer. Your North Carolina or Virginia work injury lawyer should then explain that you may be eligible to go back to school or to attend a training program so that you can be qualified to do more work.
That being said, the process of vocational rehabilitation, unless it is a simple payment for school tuition (rarely the case), is generally not what it sounds like. In our experience, it is generally an unpleasant and difficult process designed to strip you of your benefits. It is generally not designed to find you suitable employment but trip you up and find you out of compliance and hence no longer entitled to your workers comp benefits.
While engaged in vocational rehabilitation, you still have the right to be paid your compensation checks (generally 2/3rds of your average weekly wages) and treat with you doctors. The insurance company is supposed to pay for your tuition or course costs, your books and training materials in connection with any vocational rehabilitation, but in our experience, they will typically take the cheapest road and enroll you in free courses if any re-training is required. If you need help getting to the course programs or school, vocational rehabilitation is supposed to either help or reimburse you for your transportation costs as well.
This is someone who is trained to say what type of work a person can and can’t do based on the worker’s education, past job experience, current skills, and current physical and emotional abilities. Employers sometimes employ a vocational professional to say that – while you can’t do your current job – you should be able to find suitable work in the area where you live. These professionals usually review Department of Labor standards and other guidelines to help make their determination.
They will typically start with an initial session which goes through your entire work history to determine your current transferrable skills. They will also review any FCE’s and your doctor’s records to determine your current work restrictions. After that, the vocational rehab professional will often meet with you on a weekly basis to provide job leads for you to apply to. These job leads are supposed to be pre-screened, meaning they job must be within your physical restrictions, within your skills, and also at least some significant portion of your pre-injury wages. In other words, if you were earning $1500.00 per week pre-injury, having you apply for a minimum wage job would not be suitable employment.
Experienced work injury lawyers understand how to question vocational professionals. They also understand that most of the time, their job is not to find you suitable employment, but to trip you up so that you are stripped of your workers compensation benefits. They work to make sure the vocational rehabilitation counselor follows the rules and guidelines which govern what they can and cannot do. In some cases, they may consult with another vocational professional who has a different opinion about the work you can and cannot do.
Attorney Joe Miller Esq. has been a strong advocate for injured and ill workers for more than 30 years. He’s helped thousands of North Carolina and Virginia employees get just recoveries when they’re hurt on the job or suffer an occupational illness. To speak with a lawyer who fights for injured workers, please call 1-(888) 667-8295 or fill out my contact form.
Posted on Thursday, August 2nd, 2018 at 12:30 pm
Lately, we have been coming across cases where we haven’t been able to help an injured worker because they have quit their job after being hurt.
We understand how frustrating it is when an employer or insurance company will not cooperate, or you are sent to a company doctor who will not listen to you. You are hurt and the doctor is sending you back to work when you know you are really in severe pain and you have no business working. So in frustration, you just quit your job and hope for the best.
But injured workers need to understand that just because they are hearing the job numbers in the U.S. are up and there is low unemployment, that does not mean the worker can “have his cake and eat it too,” by simply quitting his job after a serious injury. When the injured worker quits, he does irreparable damage to his chances of obtaining a fair recovery for his workers compensation claim.
You simply cannot quit the job you were hurt on and then expect to have a decent workers compensation claim.
In this video, workers compensation attorney Joe Miller explains why you should NEVER quit your job after an on-the-job injury.
Posted on Thursday, July 26th, 2018 at 8:29 am
Many injured workers can never return to work. A traumatic brain injury, spinal cord injury, paralysis, or other disorder may make the worker permanently disabled. Some workers can return to work but with medical restrictions. Many employees need to be retrained so they can learn a new job.
Employees should work with their doctor and their workers’ compensation lawyer so that they understand their medical needs and legal rights. Employers often try to force workers back to their job or a job before the worker is really ready.
Most workers are happy to return to work if they can do the job. Workers’ compensation generally just pays about 2/3rds of the worker’s wages. It’s nice to get 100% of your pay. With work comes the reward of helping your company and your community. Workers who can’t return to work shouldn’t be rushed. You do have the right to contest efforts to make you return to a job before you’re physically ready.
First, you do have the right to have your treating doctor evaluate your ability to perform the tasks needed to do your job. You should explain to your doctor all the tasks that are required. This includes
Your doctor will generally make one of the following evaluations
Once a medical evaluation has been made, an employee should review these options with an experienced North Carolina or Virginia workers’ compensation attorney. If you think you’re just not physically or mentally ready, the lawyer may seek an independent medical evaluation.
There are differences as to how this is accomplished as between North Carolina and Virginia. North Carolina has a statutory method for obtaining an independent medical evaluation (IME) at the defendants’ expense. Attempting to see a doctor outside of this permissible scenario will likely not accomplish anything, as the treatment or evaluation was not authorized.
Virginia has no such method for an IME; however, in Virginia there are really no restrictions on you seeing a doctor on your own, assuming you can pay for it. It must also be remembered that the Virginia Workers Compensation Commission will generally side with the opinion of the authorized treating doctor as opposed to someone you chose on your own. The exception is if the treating doctor has released you and stated that he or she has nothing more to offer you insofar as treatment is concerned. In those cases, you may be entitled to move for a change in treating physicians.
Possible return to work scenarios include:
Working with restrictions.
Often, doctors will say you can return to work with restrictions. Examples of restrictions include:
The doctor should prepare detailed written restrictions. The restrictions, in turn, should be given to your attorney if you have one, and he will disseminate those restrictions to your employer and/or opposing counsel. If an employer doesn’t respect these restrictions, you do have the right to complain to your doctor. You should take written notes of every time an employer forces you to work beyond these restrictions and you should make sure you tell your doctor precisely which duties are causing you severe pain.
Employees who work with restrictions whose employers cannot accommodate those restrictions may still be entitled to their temporary total disability checks, assuming the worker has an accepted claim in North Carolina or is under an Award in Virginia. If the worker returns to light duty at a lower wage, then the worker would be entitled to 2/3rds of the difference between the pre-injury wage and the light duty wage. This is called “temporary partial disability”. This category of worker usually earns less money than they earned before the accident or occupational illness.
For example, take John who was making $900 a week before his injury. After his injury, he only earns $600 a week. John is entitled to his $600 pay. He is also entitled to 2/3 of the difference between the pre-injury and light duty pay. Since the difference is $300, John is entitled to claim a $200-per-week temporary total disability payment on top of the $600 weekly wage.
The worker continues to be entitled to payment for all reasonable medical bills, treatments, medical devices, and medications while working with restrictions. Workers with restrictions often continue to treat with physical therapists. Many take prescription medications.
Just because you return to work, doesn’t mean you reached your maximum medical improvement. Many employees continue with medical treatments while they’re doing light duty work. It is only when the employee reaches MMI that an evaluation can be made as to whether the employee has a permanent disability, a partial permanent disability, or no disability. Long-term settlements in workers’ compensation cases may be possible when maximum medical improvement is achieved.
Workers who can’t return to the same job with or without restrictions may be entitled to vocational training. This training ideally allows the worker to learn new skills so he/she can get a new job. It is sometime used, for example, when a worker who did manual labor is retrained to do clerical work.
But one should be extremely cautious with the vocational rehabilitation counselors. Although they are supposed to help the worker find a job, their real mission is usually to torpedo and sink your case by claiming that you failed to comply with their often ridiculous job search requirements.
Understand your right to return to work only when you’re able to
At the North Carolina and Virginia Law offices of Joe Miller Law and the Work Injury Center, we have been fighting for injured workers for more than 30 years. Joe Miller has helped thousands of injured workers get the workers’ compensation benefits they fully deserve. Joe Miller works with your doctors to understand you medical problems and when you can competently do your job. For help , please call (888) 694-1671 or complete my contact form.
Posted on Tuesday, March 6th, 2018 at 11:14 am
If you or someone you love is disabled from a work injury, the disabled worker can receive 2/3rds (.66667) of their average weekly wage loss benefits on a weekly basis for up to 500 weeks. This is called temporary total disability or TTD. In some very narrow categories of permanent and total disability injuries, that can be extended to lifetime payments, often well beyond the 500 weeks.
Many employees prefer though, to settle their case rather than continue to receive weekly checks. As part of the settlement, they will ask for some or all of the future wage losses in a lump sum benefit as well as an estimate of the value of their future medical care, rather than continue to receive their wages and medical care from the workers compensation carrier on a weekly basis. That way, the employee has immediate access to their funds and can also invest the funds and even pass the money on to his or her heirs. If the worker gets another job or dies, then the payment stops and there are no funds to pass on to one’s children or grandchildren. Experienced North Carolina or Virginia worker’s compensation lawyers understand how to properly value your case so that you or your loved one gets all that he/she deserves.
The amount of the lump sum that needs to be calculated as to your future comp payments is essentially 2/3rds of your average weekly wages up to 500 weeks; however, there may be initial discounts to consider if it is anticipated that you will return to work sometime before the end of the 500 weeks. In addition, there is no guarantee that you will live for the entirety of the 500 weeks. You could, in fact, die from unrelated causes and if that happens, or if you return to work at the same or higher wages, then the weekly payments would stop.
Another consideration is that if you get paid in a lump sum, in North Carolina, your calculation as to future payments must be discounted because you can invest your settlement funds into interest bearing accounts. This is called figuring out the PRESENT VALUE of the future amounts.
We typically do not do this in Virginia, because Virginia provides workers under Awards with the right to COLA payment increases whereas North Carolina does not. Do in Virginia, if we simply take out the anticipated future COLA payments when figuring out the future lump sum amounts, then any gains are really offset by inflation, so there is no discount rate needed.
North Carolina, on the other hand, does not provide COLA as part of its compensation scheme, so you give nothing up when figuring up future lump sums. So you must therefore reduce to present value.
Present Value and the Discount rate.
The discount rate is a way of figuring what the present value of your future income should be in North Carolina. For example, if your Average Weekly Wage (AWW) is $900.00, your compensation rate is 2/3rds of that, or $600.00. If you elect to be paid weekly over 500 weeks, you will ultimately receive $600.00 x 500 weeks= $300,000.
If the interest rate is calculated at three 3 %, the present value of your money is approximately $260,500.00. In other words, if you invest $260,500.00 at 3 percent yearly interest, you will generate $300,000 in money in 500 weeks. In this example, your $300,000 in income is being discounted about 13% down to the $260,500 figure.
While financial experts understand how much money a settlement will earn if it obtains, for example, three percent per for 30 years, the experts don’t know whether the interest rates may change over time.
Generally what is done is that the parties argue and usually compromise over the discount rate during negotiations. The defense obviously wants to pay less so they will use a higher discount rate, where the injured worker’s attorney will argue that while higher interest rates are available, the investments that produce them are often more risky and volatile, and less safe. The injured worker’s lawyer will argue that something safe would be something like treasury bonds or other such instruments, which typically pay something like 3-4%, depending on the year. Defense attorneys will argue for investments in the 6-8% range or higher.
In both North Carolina and Virginia, while most employees are limited to TTD payments up to 500 weeks, that is not the only component that goes into figuring up the value of a potential settlement. There is also the lifetime medical award, and this is where it is important to understand your life expectancy. For instance, if you are on certain expensive prescription medications for your injuries, and it is likely you will have to remain on them for the rest of your life, this could be a huge component and “exposure” to the workers compensation carrier which may motivate them to settle your claim.
As an example, let’s assume you are a 55-year-old male injured worker in Virginia. Using the table for Virginia below, we are entitled to assume your life expectancy is 24.3 years. Let’s say that you are taking an expensive prescription that is costing the comp carrier $500.00 per month. That translates to an annual cost of $6000.00 x 24.3 years, which is a future prescription cost of $145,800.00. Along with future potential surgeries, or other treatment as recommended by your doctor, this future medical treatment can form a significant component of any demand to fully and finally settle your claim.
North Carolina uses the following life expectancy figures for worker’s compensation cases (just the first few years and then increments of five years are provided):
Virginia uses the following life expectancy figures (for both genders, for just men, and for just women)
There are other factors that are crucial in determining the amount of any full and final settlement. Some of these factors are:
After the future TTD estimates and Future Medical costs are added up, we will typically then present a figure that we request for our demand in the case. Other components that might go into the demand are future medical travel costs, future x-rays, MRI’s or other medical monitoring. We also always ask that the carrier pay any outstanding, related medical costs that have not yet been paid. In addition, ongoing weekly payments typically continue until issuance of the Settlement Order by the Virginia Workers Compensation Commission or Industrial Commission.
Note that if you are a current Medicare recipient, ALMOST NONE OF THIS APPLIES as you will have to engage in a MEDICARE SET ASIDE (MSA) and Medicare will have to approve the MSA amounts in order for you to receive any kind of medical settlement. In these circumstances, your future medical costs will be calculated by one of any number of companies who will submit a report estimating the cost of your future, injury-related care to Medicare for approval. You or your attorney will have no control over determining those estimates. The only items that will fall outside the purview of the MSA are items that would not be covered by Medicare. For instance, certain prescriptions are not approved by Medicare for treating pain.
We recommend that you do not try to negotiate your lump sum full and final settlement or clincher on your own. You can’t renegotiate the lump sum payment if you make a mistake. Any worker considering a full and final settlement (called a clincher in North Carolina) should consult with an experienced North Carolina or Virginia workers’ compensation attorney. You may be wildly underestimating what your case is worth.
Do not settle your claim without speaking to an experienced work injury lawyer. Attorney Joe Miller Esq. has been helping injured workers get justice for over a quarter century. He understands how to negotiate and what wage and medical benefits you are entitled to. To learn what your rights are, please call lawyer Joe Miller at (888) 694-1671. You can also reach him through his contact form.
Posted on Tuesday, September 5th, 2017 at 2:22 pm
Attorney Joe Miller explains what mediation is and how it can be helpful:
Posted on Friday, September 1st, 2017 at 1:08 pm
Joe Miller recently negotiated a substantial, six-figure settlement for a construction supervisor who fell off of a roof and lost consciousness. He suffered numerous other injuries which required surgical repair and fixation.
The worker’s compensation insurance company denied the claim, utilizing the willful misconduct defense, surmising that Joe Miller’s client must have been too close to the edge of the roof while performing his work, in violation of OSHA regulations and Company safety rules.
The problem that the defendants had was that the claimant could not recall precisely what had occurred, or how he had even ended up in the area where he had fallen from the roof. In addition, the one potential witness to the incident was no longer available.
Accordingly, insurance company had a difficult problem. In order to block a claim because of a violation of a statute or safety rule, it must be proven that the claimant intentionally violated the statute or rule. Unlike personal injury cases, mere negligence of an employee in performing his duties, even if the negligence is severe, does not bar a workers comp claim. Without a witness to say that the claimant clearly knew he was violating a safety rule and statute at the time of his injury, or that he otherwise intentionally ignored safety regulations, this would be difficult.
These potential problems were brought to the attention of the defense attorney prior to hearing. Approximately two weeks prior to hearing, Joe Miller engaged in negotiations with the defense attorney, which resulted in settlement of the claim for a significant six-figure sum, and in addition an agreement for full payment of all past medical bills related to the claim.
Posted on Wednesday, May 17th, 2017 at 9:28 am
This is a frequent question we get and our best piece of advice is to seek the advice of an attorney who specializes in Divorce Law in Virginia.
This is because the law in the area of domestic relations is one that is constantly changing and evolving and more likely than not, even the little bit of information we are providing here is likely to be outdated by the time you read this. (more…)
Posted on Friday, July 8th, 2016 at 2:00 pm
In cases where a worker has been tragically killed on the job, the injured worker’s dependent(s) must complete the upper portion of the eligibility form to include the name of the deceased, accident date, Jurisdiction Claim Number and Social Security Number of the deceased.
The dependent(s) must have a representative from the Social Security Administration complete Sections 1 and 2. The eligibility form must be signed by a Social Security Representative even if Social Security Survivors Benefits are not being received.
The eligibility form should be signed by the injured worker’s dependent(s) and then filed with the Commission.
Benefits generally cannot be more than 80% of the combined weekly wage and the Social Security benefit.
Dependents of injured workers may be entitled to multiple benefits including workers’ compensation death benefits and Social Security benefits. These are the benefits that are traced back to the injured/deceased worker. Workers’ Compensation in Virginia has guidelines on the upper limit of money a survivor can receive. Attorney Joe Miller has been helping injured workers and dependents get a just recovery for over 25 years. For help now, call Joe Miller at the Work Injury Center at 888-694-1671 or complete his online contact form.