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 888-667-8295. 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 888-667-8295. or fill out my contact form to make an appointment.

A Few Unique Medical Considerations in a Workers’ Compensation Case

Posted on Wednesday, October 30th, 2019 at 10:08 am    

In Virginia, workers are generally required to treat with a doctor chosen from a list of doctors provided by the employer. This list is known as a “panel” of doctors. Panels must be provided for each individual specialty required.  Oftentimes, there is no time to choose from a panel because the injured worker has been transported by ambulance to the emergency room and/or undergone surgery by a physician such as an orthopedic surgeon, who will typically continue to treat the injured worker.  If the injuries are severe, there is often an extended hospital stay where the injured worker may see several specialists while in the hospital. In those circumstances, panels are not usually required, as the doctors who treat the injured worker in the hospital will typically become the authorized treating physicians by virtue of their visits with the patient and their familiarity with his or her injuries and treatment over time. 

Workers in Virginia should be wary of companies who shuffle workers off to a “company doctor” as the sole means of treating an injury. This is not in accordance with the law. The injured worker in Virginia is entitled to choose from a panel of three doctors which the employer/comp carrier must provide.  Note that all of the doctors on the panel must be from different practices. The employer cannot simply list three doctors within the same practice and ask the injured worker to choose one.   

In North Carolina, there are no panels of physicians offered. The workers’ compensation carrier is pretty much given free reign to choose a physician to treat the worker’s injuries. The thinking is that if the employer is footing the bill, they get to choose the doctor. That being said, the same kind of restrictions apply as in Virginia for Emergency treatment: The surgeons or other providers who treated the injured worker in the hospital will typically become the authorized physicians, and the carrier really does not have the right to randomly switch treating physicians just because they do not like the surgeon who performed the surgery in the hospital. 

The big difference in North Carolina is that there is a provision for a second opinion exam at the expense of the insurance company if the worker is dissatisfied with the treatment of the authorized treating physician. This must be agreed upon or ordered by the Industrial Commission. 

In Virginia, there are unfortunately no such provisions for a second opinion examinations with physicians chosen by the employee; however, workers are free to pay for their own second opinion examinations or treatment with whatever doctor they want to if they so choose, or if they are able to do so under private health insurance. That being said, workers should be cautioned that the VWCC will always give more weight to the opinions of the authorized treating physician than the injured worker’s chosen doctor. 

While the pain doctors, orthopedists, and other doctors that treat workers are of primary concern, a secondary concern is which pharmacy the employee uses and the prompt filling of prescriptions. The treating doctor is the physician who fills out the prescription. The nurse or staff for the doctor normally calls in, emails, or mails the prescription to a local pharmacy. It can be extremely frustrating for some patients when the workers compensation insurance company either delays the approval of certain medications or simply does not respond to the pharmacy’s requests for approval in a timely fashion. 

Sometimes this is based on the fact that the particular medication prescribed by the treating doctor is simply too expensive. 

 

Deciding the right medications for a worker’s condition

“According to the Insurance Journal, North Carolina authorized a study (called a drug formulary) of which drugs should be used to treat specific work injury conditions and illnesses in 2015.

“A drug formulary is, very simply, a preferred list of prescription drugs. This list can include both generic and brand name drugs, and is composed to identify drugs that are: 

(1) appropriate to treat the compensable injuries and

(2) offer good value. 

The drugs included on a formulary are considered to be medically appropriate and also cost-effective when prescribed for certain medical conditions. It is not uncommon for health care payors to maintain lists of pre-identified and pre-approved drugs. Formularies are widely considered an appropriate tool to encourage the safe and affordable use of prescription medicines.”

Supporters of drug formularies claim it saves costs and offers better medical treatments. Opponents argue that the employee may not be getting the correct drug for his/her medical condition. 

North Carolina eventually decided not to use a drug formulary. Instead they developed rules for the use of opioids for pain management.

Virginia does not use formularies, either. The authorized treating physician is free to prescribe whatever medications that he or she deems necessary to effect a cure or give relief to the patient. 

Choosing the pharmacy

Generally, while the employee in a North Carolina workers’ compensation case must use the company’s doctors, the employee can decide which pharmacy to use. The employee can also switch pharmacies if one pharmacy isn’t satisfactory. 

An alternative to visiting the local pharmacy is to use a mail-order pharmacy. For employees who can’t move about easily (workers’ compensation does not normally pay for the cost of travel to the pharmacy, a mail-order pharmacy offers the convenience of not having to leave home and saves the costs. If the carrier will not pay the costs of the medication outright, the injured worker can make a claim in North Carolina for prescription costs with a Form 25P

Often workers who have reached the point of maximum medical improvement – where additional treatments with their doctors won’t improve their condition – still need to use medications for the rest of their lives or for a substantial period of time.

Impairment Ratings in North Carolina Workers’ Compensation Cases

Posted on Monday, September 23rd, 2019 at 11:06 am    

Workers who were injured while doing construction work, retail work, hospital work, or any type of work have the right to get the best health care available to treat their injuries. Many injured employees need to treat with their doctors for months or longer before they begin to see improvement. Some workers are fortunate to return to their old job. Many workers need to work to work with medical restrictions.

Injured workers have the right to be compensated for their injuries (typically at a 2/3rds rate) until they reach maximum medical improvement – the point where additional medical care won’t improve their health. When they reach MMI, workers have the right to have their treating doctor assign a permanent partial disability rating. The worker is entitled to this rating if they haven’t returned to work – and even if they have returned to work. 

Impairment ratings are authorized by the North Carolina Workers’ Compensation Act. Once the rating is assigned, the worker can request a lump sum payment for lost wages based on the impairment rating. The worker will still be entitled to have the employer’s insurance company pay their medical bills so their health doesn’t get worse – provided they comply with the necessary formalities.

Impairment ratings are set forth in North Carolina Statute 97-31.  that most workers are entitled to for up to 500 weeks – provided they are unable to return to work.  

A common misconception is that the permanency or impairment ratings are very important in valuing a worker’s comp settlement. Many times, that is not the case. If one is unable to return to his or her occupation due to the work injury, then that is certainly not true. Impairment ratings are only relevant in terms of settlement discussions in cases where the injured worker has RETURNED TO WORK at the same or higher wage as the pre-injury job.  This is because in those circumstances, his or her ongoing benefits would have ceased, so that all that remains would be the weeks the worker would be entitled to based on the impairment ratings. 

If the injured worker is unable to return to his or her occupation, in most cases, the impairment rating is not relevant to settlement discussions. This is because one cannot get more than 500 weeks of benefits except in rare cases. The ratings cannot ADD to the 500 weeks and one cannot get ratings money at the same time one is getting weekly checks for workers comp. 

So, what becomes relevant in a case where a worker cannot return to his or her job is how many weeks remain of the maximum allowable weeks of 500 weeks. Usually, the impairment ratings, unless there are extremely severe injuries to multiple body parts, are not going to come anywhere close to the remainder of the 500 weeks. So that number—the number of remaining weeks of the 500 weeks times the weekly workers comp check—becomes the most relevant number when discussing a settlement of the claim. 

The worker should review with an experienced North Carolina work injury lawyer whether his or her case fits into the category of a matter that falls under a ratings-type case or a disability-from-work claim.  There are other considerations that the lawyer will review such as the need to look for alternative work if you’ve reached MMI. If you’re not careful, you may even lose your weekly benefits if you don’t follow the correct procedures.

Workers who are likely to return to work soon, or have returned to work at the same or higher watges and don’t anticipate much additional medical care would be more likely to be accepting an impairment rating payout as part of any settlement.  

How the permanent impairment rating works

Your treating doctor will review whether you have an injury that is listed in the North Carolina impairment statute. If you do, the physician will then determine the severity of your injuries based on North Carolina Industrial Commission standards or standards established by the American Medical Association. The rating examines whether you have lost the full use of an arm, for example, or whether you some limited ability to use the arm. Ratings today are typically done through Functional Capacity Examinations (FCE’s). The treating doctor merely signs off on those ratings. If the treating doctor’s rating seems wrong, workers can request a second opinion at the employer’s insurance company’s expense.

For example, the loss of hearing is paid at 2/3 rds of your average weekly wages for 70 weeks for the loss of hearing in one ear. The amount rises to 2/3rds of your average weekly wage for 150 weeks for the loss of hearing in both ears.

So, if you were earning $900 a week, your comp rate would be $600.00. If you lost hearing in one ear, the doctor will assess the degree of loss. If the impairment rating is 30% for hearing loss in just one ear,  that would be 70 weeks x .30 or 21 weeks. Then your payout would be $600.00 x 21 weeks or $12, 600.

Example impairments

The North Carolina statute assigns the following ratings losses for some injuries. The statute contains the full list:

  • 97-31. Schedule of injuries; rate and period of compensation.

In cases included by the following schedule the compensation in each case shall be paid for disability during the healing period and in addition the disability shall be deemed to continue for the period specified, and shall be in lieu of all other compensation, including disfigurement, to wit:

  1. For the loss of a thumb, sixty-six and two-thirds percent (66 2/3%) of the average weekly wages during 75 weeks.
  2. For the loss of a first finger, commonly called the index finger, sixty-six and two-thirds percent (66 2/3%) of the average weekly wages during 45 weeks.
  3. For the loss of a second finger, sixty-six and two-thirds percent (66 2/3%) of the average weekly wages during 40 weeks.
  4. For the loss of a third finger, sixty-six and two-thirds percent (66 2/3%) of the average weekly wages during 25 weeks.
  5. For the loss of a fourth finger, commonly called the little finger, sixty-six and two-thirds percent (66 2/3%) of the average weekly wages during 20 weeks
  6. The loss of the first phalange of the thumb or any finger shall be considered to be equal to the loss of one half of such thumb or finger, and the compensation shall be for one half of the periods of time above specified.
  7. The loss of more than one phalange shall be considered the loss of the entire finger or thumb: Provided, however, that in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand.
  8. For the loss of a great toe, sixty-six and two-thirds percent (66 2/3%) of the average weekly wages during 35 weeks.
  9. For the loss of one of the toes other than a great toe, sixty-six and two-thirds percent (66 2/3%) of the average weekly wages during 10 weeks.
  10. The loss of the first phalange of any toe shall be considered to be equal to the loss of one half of such toe, and the compensation shall be for one half of the periods of time above specified.
  11. The loss of more than one phalange shall be considered as the loss of the entire toe.
  12. For the loss of a hand, sixty-six and two-thirds percent (66 2/3%) of the average weekly wages during 200 weeks.
  13. For the loss of an arm, sixty-six and two-thirds percent (66 2/3%) of the average weekly wages during 240 weeks.
  14. For the loss of a foot, sixty-six and two-thirds percent (66 2/3%) of the average weekly wages during 144 weeks.
  15. For the loss of a leg, sixty-six and two-thirds percent (66 2/3%) of the average weekly wages during 200 weeks.
  16. For the loss of an eye, sixty-six and two-thirds percent (66 2/3%) of the average weekly wages during 120 weeks.

Additional injuries covered include:

  • The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or any two thereof,
  • Total loss of use of a member or loss of vision of an eye shall be considered as equivalent to the loss of such member or eye. 
  • In case of serious facial or head disfigurement, the Industrial Commission shall award proper and equitable compensation not to exceed twenty thousand dollars ($20,000).
  • Back injuries

Other injuries and conditions apply.

Virginia and North Workers’ Compensation Lawyer Joe Miller Esq. has helped thousands of injured workers get the full workers’ compensation benefits they deserves. He works with the treating doctors and independent doctors to properly assess your medical condition. He’ll detail how much money you will get if you continue on disability or if you settle your claim in a lump sum. To speak with an experienced work injury lawyer, call attorney Joe Miller at 888-667-8295. or complete my contact form to make an appointment.

Maximum Medical Improvement (MMI) in Workers’ Compensation Cases

Posted on Thursday, September 19th, 2019 at 11:06 am    

Workers who are injured on the job can take months or even years before their injuries are properly healed. Many employees with severe injuries such as spinal cord damage, lost vision, or traumatic brain damage never fully heal.

In workplace injury cases, the initial medical goals are to treat any emergency conditions, make a proper diagnosis of the worker’s injuries, and develop a treatment plan. The physicians should also explain to the patient the long-term prognosis for their medical condition. The employer’s insurance carrier (unless the employer is self-insured) is required to pay for all necessary medical care to help the worker improve physically and emotionally – as much as possible.

A major medical and legal determination and milestone in an injured worker’s case is when he or she finds out if the worker can return to his or her job. Another important determination connected with this is whether the worker has reached maxim medical improvement (MMI). 

MMI is the point where additional medical care is not reasonably likely to improve the health of the worker. Additional surgeries aren’t likely to help and additional therapies aren’t likely to help. MMI does not automatically mean the end of medical care because some injured workers still need physical and other types of therapy such as pain management so their condition doesn’t worsen or they can achieve ongoing pain relief. 

Options when the worker achieves maximum medical improvement

MMI does not mean the worker is as healthy as he/she was before the accident. It just means that additional medical care won’t make a major difference. When a worker has reached MMI, then he/she should work with an experienced North Carolina workers’ compensation lawyer to review the following issues:

  • Can the worker return to his/her job without or with restrictions?
  • Can the worker return to work with restrictions such as not have to lift more than 20 pounds? 
  • Has the employer initiated vocational rehabilitation?
  • Is it necessary to look for work within the now permanent work restrictions that been assigned to the injured worker? 
  • Has there been a permanency rating assigned by the doctor to the injured body parts? 
  • Additional options discussed below

MMI usually means you may consider an overall settlement of your claim

Workers who have reached maximum medical improvement could also consider settling their overall claim. Workers generally can’t settle their claim if there’s the reasonable probability that continued medical care of a substantial nature would improve their condition. This does not mean medical care such as pain management or the ongoing taking of medication. MMI is typically not declared by the treating physician if additional, major procedures such as surgery are upcoming. 

On the other hand, if the worker has been declared to have reached MMI, then what usually happens is the treating physician will refer the worker for a Functional Capacity Exam (FCE) to determine their permanent physical restrictions. 

After receiving the results of the FCE results, that is usually a good point to think about seeking a lump-sum settlement based on the worker’s average weekly pay, the standard 2/3rds adjustment of the pay, the number of weeks they can still receive pay, (which is usually the remainder of 500 weeks if they are under an Award or under an Accepted Claim) their likely future medical bills, and other factors. 

In North Carolina, a settlement agreement in a workers’ compensation case is called a Clincher Agreement. In Virginia, it’s simply called a Full and Final Settlement. Once you accept the lump sum payment as a settlement, upon entry of the Settlement Order by the Workers Comp or Industrial Commission, your rights to income payments due to a temporary total or temporary partial disability generally stop, as do your medical benefits. 

There are a lot of pros and cons to settling your case once you’ve achieved MMI:

  • If you settle your claim, you get the funds now. You then control how the funds are invested and what you can do with the money.  
  • If you were to die, if you have an Open Workers Comp case, the funds would simply stop and your family or heirs would receive no benefit. If you settle, the money is yours to leave to whomever you want. 
  • A danger in settling the case is that you can’t come back later and ask to reopen the case. If there is a likelihood that you will need future medical care because your condition will likely worsen or because you need the care to keep your health at the same level – then:
    • If you settle your case, you also settle how much will be paid for these future medical bills
    • If you keep your case open, then if the medical expenses become more than you expected, you can demand payment for these new medical bills as they occur.

MMI means you can seek a Permanent Impairment rating

Additionally, as noted above, the worker can seek an impairment rating which can result in income payments based on the type of injury the worker has the severity of the injury. The severity of the injury is based on an impairment rating typically expressed as a percentage, and that rating is then translated into a number of weeks of payments, all set forth in the statute books.  Typically, the treating doctor will assign an impairment rating based on the workers condition and standard medical guidelines such as those of the American Medical Association or the North Carolina Industrial Commission. 

A common misconception is that the permanency ratings are very important in valuing a worker’s comp settlement. If one is unable to return to his or her occupation due to the work injury, then that is certainly not true. Impairment ratings are really only relevant in terms of settlement discussions in cases where the injured worker has RETURNED TO WORK at the same or higher wage as the pre-injury job.  

If the injured worker is unable to return to his or her occupation, in most cases, the impairment rating is not relevant to settlement discussions. This is because one cannot get more than 500 weeks of benefits except in rare cases. The ratings cannot ADD to the 500 weeks and one cannot get ratings money at the same time one is getting weekly checks for workers comp. So, what becomes relevant is how many weeks remain of the maximum allowable weeks of 500 weeks. Usually, the impairment ratings, unless there are extremely severe injuries to multiple body parts, are not going to come anywhere close to the remainder of the 500 weeks. So that number—the number of remaining weeks of the 500 weeks times the weekly workers comp check—becomes the most relevant number. 

Reaching your MMI does not mean your disability benefits end. They continue as long as the law allows, meaning unless you settle your claim or return to a job paying the same or higher wages as you had before you were hurt. 

The impairment rating is essentially based on whether your type of injury is covered by the North Carolina statutes – at NC Workers Compensation Act 97-31.  

Covered injuries are assigned a number of weeks. For example, the loss of an arm is assigned 240 weeks. If you can still use your arm but not as much as before the accident, the treating doctor will assign an impairment rating to reflect the degree of loss. If the impairment rating is 20% that would equate to 240 x .20, or 48 weeks. Then if your average weekly income was $1,000 a week – then your comp payments are $666.67 per week. So you would be entitled to 666.67 x 48 weeks, or $32,000.16.

Workers in North Carolina have the right to challenge the impairment rating of the treating doctors by getting a second opinion which is paid for by the employer’s insurance carrier. If the ratings differ, then the North Carolina Industrial Commission may be required to decided which rating to use. No such right exists in Virginia. 

 

Virginia and North Workers’ Compensation Attorney Joe Miller Esq. has been helping injured workers for more than 25 years. He’ll review and explain your options once you’ve reached maximum medical improvement. He’ll work with your doctors and you so that you make the right choices for your physical and economic needs. To review your case now, call lawyer Joe Miller at 888-667-8295. or use my contact form to make an appointment.

Workers’ Compensation and Repetitive Stress Injuries

Posted on Friday, September 6th, 2019 at 3:11 pm    

Repetitive stress injuries, according to Medical News Today, can affect most every movable part of your body. They are generally associated with repeating the same task over and over again, vibrations, and forceful exertions. Some of the other names for repetitive stress injury (RSI) are repetitive motion disorder, cumulative motion disorder, repetitive motion injury, occupational overuse syndrome, and regional musculoskeletal disorder. 

Generally, in both North Carolina and Virginia, repetitive stress injuries do not constitute valid claims. If one claims, for instance, that due to years of heavy lifting one’s back has started to hurt, that claim will be denied by the insurance company as well as by both the Virginia Workers Comp Commission or the North Carolina Industrial Commission. 

There are, however, a couple of sets of exceptions carved out in the law.  

The first is if the repetitive stress injury is suddenly aggravated by a traumatic event. In Virginia, as long as the doctor can say that the traumatic event caused a “sudden mechanical change” in the injured body part, then this would be a valid injury. Similarly, in North Carolina, a slip, trip or fall that aggravates a repetitive injury would be compensable. 

The second set of exceptions relate to some specific injuries that are very common and generally accepted as either occupational diseases or ordinary diseases of life caused by repetitive work trauma.  

Carpal tunnel syndrome is perhaps the best- known form of RSI. It is treated as an ordinary disease of life that is an occupational disease. It is a condition, according to Orthoinfo, that occurs when a major nerve to the hand (the median nerve) “is squeezed or compressed as it travels through the wrist.” It can be quite painful and generally gets worse over time unless it is treated. For some patients, surgery may be required to take pressure off the median nerve.

CTS is very common in machinist occupations and electrical occupations where repetitive use of the hands is required. 

Some of the symptoms of repetitive stress disorder

Symptoms include:

  • A throbbing sensation or a pulsing sensation in the part of the body affected
  • Loss of sensation
  • Pain or tenderness in affected joints and muscles
  • Loss of strength
  • A tingling sensation
  • Reduced range of motion
  • Reduced flexibility

Symptoms often vary depending on the part of the body that is affected.

Many workers don’t’ realize they have an RSI until the damage to their body is significant. By the time they do feel the pain, they need to stop working and get medical help.

Causes of repetitive stress injury

Some of the general causes of repetitive stress injuries include:

  • Using the same muscle or group of muscles again and again
  • Working in temperatures that are cold
  • Equipment that vibrates
  • Not working in a sound ergonomic work environment
  • Poor posture or keeping the same posture for a long time
  • Tiredness
  • Carry of lifting heavy objects
  • Direct pressure on a certain part of the body

Psychological stress can worsen RSI.

Some of the causes of RSI that cause workers to lose time off from work and file a workers’ compensation claim include:

  • Computer work. This is one of the more common causes of RSI, more specifically carpal tunnel syndrome. Workers who type and type all day long are using the same muscles over and over again. Clicking a mouse, typing on a keyboard, using a smartphone while typing – all can lead to repetitive stress injuries that can make work difficult. Workers should routinely take breaks from typing, make sure their monitor is the right distance away from the keyboard, use keyboards and computer setups that are ergonomic, and try to mix up their work with other tasks.
  • Construction work also often requires that workers perform the same tasks. These repeat tasks including using a jackhammer, hammering nails, digging in the ground, operating a forklift or a crane, cutting tree branches, or other tasks. The repeat work can develop into an RSI over time. Employers and workers should consider rotating tasks so the same muscles aren’t used all the time. Positioning and work techniques can also help reduce the risk of an RSI.
  • Retail work. Most retail workers are on the feet all day long which leads to fatigue. While they’re working, they are doing repeat tasks such as putting clothes on hangers or removing clothes, organizing the inventory, or operating a cash register.
  • Waitressing. Most waitress do the same physical tasks every day. They take order, carry food on trays, take the food off the trays, and unless they have someone to help – clean the dishes and the tables.
  • Standing or sitting in one position all day. These tasks can be bad for the heart and bad for your joints, muscles, ligaments, and tendons. People who sit in a on office all day long should make an effort to get up, stretch, and walk around. People who stand all day are putting pressure on their whole body. It helps for standing workers to take regular breaks where they can sit for a while.
  • Nursing. Nurses are constantly giving patients medications, moving and turning patients, checking blood pressure and doing other tasks on a repeat basis.
  • Machinist work. Constant working with hand tools can often cause carpal tunnel syndrome. 
  • Electrical work. Using screwdrivers and other tools in tight spaces can often cause carpal tunnel syndrome. 

Other jobs that are known to cause RSIs include delivery work, plumbing, agricultural work, firefighting, stocking shelves, janitors, maid services, and food processors. Professional athletes and professional musicians also do a lot or work that involves repetitive motions.

Treatment for an RSI

The earlier workers begin treatment for an RSI, the better. Doctors will conduct a range of tests depending on the body part that hurts and other factors. These tests include:

  • Nerve conduction studies
  • Electromyogram (EMG) which measures the electrical activity in muscles.
  • X-Rays and MRIs may be used

Treatments for an RSI include:

  • Surgery on the affected body part
  • Medications to reduce the inflammation and the pain
  • Braces and splints may help
  • Steroid injections
  • Certain types of exercises

The recovery process for surgical and non-surgical treatments can take months or even up to a year.

Can you claim workers’ compensation benefits for a repetitive stress injuries?

Unfortunately, other than Carpal Tunnel Syndrome (CTS), or aggravation of pre-existing RTS injuries by a single traumatic event, Virginia does not recognize any other repetitive stress injuries as valid, compensable injuries or an occupational disease

In North Carolina, the legislature has carved out a few specific, repetitive stress injuries that are recognized as specific, valid, occupational diseases. 

In addition, in North Carolina, (not in Virginia) repetitive stress injuries can sometimes be classified as occupational diseases and be compensable IF they are proven to be caused by things that are characteristic and peculiar to the employment of the injured person and excluding ordinary diseases of life to which the public is equally exposed. An example is a cameraman who develops a rotator cuff injury over time. His job requires him to carry the heavy camera on his shoulder every day, and if the doctor supports it, this would be an example of a compensable RTS injury in North Carolina. 

One should proceed with caution, however. These types of North Carolina “ordinary disease of life” cases are notoriously difficult to prove. The doctor must not only say that the work caused the issue, but that it was NOT caused by exposure to repetitive stress outside of work. For some jobs, such as daily work with a jackhammer, the proof may be clear. For other jobs, such as computer work, an insurance company may argue that your off-duty typing or exposure to other, off duty activities caused the RSI. 

There are, however, some RTS diseases in North Carolina that are specifically listed by the legislature as an occupational disease. 

The RTS diseases that are specifically listed in North Carolina General Statute Sec. 97-53 as compensable occupational diseases are: 

  • Blisters due to use of tools or appliances in the employment
  • Bursitis due to intermittent pressure in the employment
  • Bone felon [a type of finger infection-ed.] due to constant or intermittent pressure in employment
  • Synovitis, caused by trauma in employment; 
  • Tenosynovitis, caused by trauma in employment 

Examples of repetitive stress injuries that might be compensable in North Carolina, (but not in Virginia) depending on the proof of facts, are:

  • Tendonitis
  • Shoulder and rotator cuff injuries 
  • Tennis elbow, more formally called epicondylitis
  • Muscle strains
  • Trigger finger
  • Many other types of RSIs

If you have a workers’ compensation claim because of a repetitive stress injury, Virginia and North Workers’ Compensation Attorney Joe Miller Esq., will explain your legal rights. In most cases, unless you fall into one of the exceptions listed above, there is a good chance you may not have a case. But if you have a valid work injury claim, he’ll work with your doctors to determine your full health condition.  In some cases, he may recommend that you see other doctors who are approved by the state workers’ compensation organizations. To learn if you have a claim, call attorney Joe Miller at 888-667-8295. or fill out my contact form to schedule an appointment. Joe Miller has been fighting for injured workers for more than 31 years.

Workers’ Compensation and Back Injuries

Posted on Wednesday, September 4th, 2019 at 3:11 pm    

According to the Occupational Health and Safety Administration (OSHA), there are numerous reasons why back injuries are a major cause of lost work days. Back disorders generally occur in one of two ways:

  • A single traumatic event
  • Repetitive actions over time
  • A combination of both

A single traumatic event or a combination of a single traumatic event that aggravates an accumulated problem both generally constitute compensable, valid injuries under workers compensation law in both Virginia and North Carolina; however, cumulative injuries by themselves are generally not compensable and do not constitute a valid workers compensation claim. 

Also, while usually in North Carolina, a “slip, trip, or fall” is required to prove an injury by accident, an exception is carved out in the law with respect to back injuries. Evidence of a single, traumatic event is usually sufficient to prove a back injury in North Carolina. 

Virginia also only requires a single, traumatic event, but there must also be a “risk of employment” associated with the accident. This means that if one is simply injured suddenly in the course of performing one’s duties in Virginia, unless there is something that is a “risk” posed by the employment, i.e. a very heavy weight being lifted, a defective piece of equipment, or a weight suddenly shifting, simply feeling sudden back pain will not rise to the level of a valid injury in Virginia. In North Carolina, with respect only to back injuries, it would, so long as the injured worker can point to a specific moment when the pain started during the performance of work duties.

Often, workers and employers fail to treat back problems which accumulate over time – until the symptoms become very so severe, so acute – that the cause a disabling injury. Some of the causes of back injuries include improper lifting techniques or lifting loads that are just too heavy for the  worker’s body.

Often, the single traumatic event is really due to “years of weakening of the musculoskeletal support mechanism by repetitive micro-trauma. Injuries can arise in muscle, ligament, vertebrae, and discs, either singly or in combination.”

Once again, unfortunately, these types of back injuries, if not precipitated or aggravated by a single traumatic event that the injured worker can point to, will not give rise to a valid workers compensation claim. 

OSHA states that back injuries from working aren’t known to cause fatalities. They do, however, cause a lot of pain and suffering and lost productivity. Back injuries affect nearly 600,000 employees on a yearly basis at a cot of nearly $50 billion annually. As the average age of employees increases, the cost to treat and pay disabled workers is likely to rise.

Some of the many reasons back disorders occur

Some of the workplace activities that cause deterioration of muscles, discs, joints, and ligaments – which in turn cause back injuries – include:

    • Poor posture. It’s important to sit and stand properly with good support. This means quality shoes and chairs. 
    • Staying in one position for too long. This means standing up occasionally if you have a desk job and sitting down occasionally if your job requires you to be on your feet all day long.
    • Reaching for objects at the same time you’re lifting. 
    • Using improper body techniques – when you lift, pull, push, or carry objects. There are standard ways, for example, that you should lift objects so the weight isn’t fully on your back.
    • Not being in good shape. Poor physical conditioning can affect your ability to use your back without experiencing pain.
    • Poor ergonomic equipment. Workstations should be designed to enhance your posture, to avoid the need to reach, and to help take pressure off your back. Your employer should consider having you wear a brace if you do a lot of heavy lifting.
    • Using your body instead of equipment. Employers should provide dollies, forklifts, and other equipment to help you mechanically lift and move anything that might be too heavy.

 

  • Twisting or bending while lifting.

 

  • Working while tired. It’s critical that workers be allowed to take periodic breaks. They shouldn’t work too many hours in any one day. Fatigue makes the muscles tired which can make movements harder. Additionally, tired workers are more likely to trip and fall which can result in acute back pain.
  • Not having proper footing. Workers shouldn’t lift, carry, push, or pull on uneven ground, on wet ground, or anywhere where their footing isn’t secured.
  • Working with machines that vibrate a lot. Truck drivers and delivery drivers are especially prone to back injuries if the cargo moves around or the truck can’t handle the load.

Some of the ways to help reduce back injuries

Some loads are much harder to lift or move than other loads. Generally, any load that is more than 50 pounds should be moved or lifted by using some of the following equipment or strategies:

  • Use hand trucks, pallet jacks, and forklifts
  • Try to break the load into smaller sizes and weights
  • Use ramps to load and move objects
  • Suction devices may help if they can carry the weight
  • Be aware that rolling items may help – but rolling may be dangerous if the motion can’t be stopped
  • Request that extra workers be used to lift, carry or move the load

OSHA states the employers and employees can help each other in the following ways:

  • Employers should ask employees what they think about how difficult task are and what their personal experience is with pain
  • Employers should observe first-hand the posture of their workers as they lift. They should also use video to analyze the motions
  • Employers should have a way to weigh objects and materials before lifting
  • Employers need to review how often and how long a worker is lifting
  • Workers should be rotated to different jobs so they’re not using the same muscles repetitively

“Principal variables in evaluating manual lifting tasks to determine how heavy a load can be lifted are: 

  • The horizontal distance from the load to the employee’s spine
  • The vertical distance through which the load is handled
  • The amount of trunk twisting the employee utilized during the lifting
  • The ability of the hand to grasp the load
  • The frequency with which the load is handled”

Other manual lifting variables include examining space constraints, the size of the load, and the stability of the load. 

Once all these variables are known, The National Institute for Occupational Safety and Health (NIOSH) of the US CDC – has a formula for determining whether a lift is safe or not.

Recommended OSHA safety tips

OSHA further recommends the following safety tips for manually handling objects to help avoid the risk of bank injuries:

  • Minimize the frequency of the activity, the range of motion, and the weight of the objects or materials.
  • Reduce the distance between the worker and the object being handled.
  • “Platforms and conveyors should be built at about waist height to minimize awkward postures. Conveyors or carts should be used for horizontal motion whenever possible.”
  • Pushing is generally better than pulling. 
  • It helps if the items being moved have handles that are easy to grasp.
  • Workstations should be configured properly so the worker doesn’t have to bend over. They should be designed to help the worker remain in a relaxed upright stance or fully supported, seated posture.
  • The worker shouldn’t have to bend his/her upper body and spine. Bins should tilted, elevated, or have collapsible sides– to improve access and avoid the need to bend.
  • Sustained twisting motions or leaning to one side should be avoided. 
  • Heavy objects should be stored at waist level
  • Employers should provide lift tables and lift-assist devices.

Virginia and North Workers’ Compensation Attorney Joe Miller Esq. understands back pain injuries. He workers with your doctors and independent doctors, when necessary, to diagnose your pain and prepare a full prognosis for your recovery. He’s helped thousands of injured workers get just recoveries. For help with your work injury claim, due to a back injury or for any reasons, call lawyer Joe Miller at 888-667-8295. 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 888-667-8295. 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) 667-8295 or use my contact form to schedule an appointment.

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