Posted on Tuesday, May 5th, 2020 at 4:46 pm
In addition to injuries caused by forklifts, overexertion, loading dock injuries, being struck by an object, and being pinned – warehouse workers can suffer slips and falls and other serious accidents. Right now, the country is relying on warehouse workers, medical staff, retail staff, and many others for our survival. Many are deemed “essential” workers and are therefore a heavy burden is placed on them as they serve the needs of the rest of our citizens, who may be confined to their homes. Workers in all these industries have the continuing right to file workers compensation claims if they are injured while doing their job. The right to file for work injury benefits applies to employees in North Carolina and Virginia. (Click here for a video explaining whether you have a right to workers compensation if you become ill from COVID-19 exposure at work as of May 2, 2020 )
Warehouse workers can slip (or trip) and fall for many reasons including the following:
Workers who slip for any reason or stumble for any reason can suffer a range of injuries including:
Part and parcel of every warehouse is having trucking companies drop off their cargo and pick up shipments to be delivered. Trucking accidents, especially backing up accidents, can occur in the loading docks and the parking areas. Injuries can happen to the drivers and to any workers in the path of a truck. Many drivers work long hours which can cause them to make carless mistakes because they’re tired.
Warehouse accidents can involve forklifts and trucks. While they often work in tandem – the forklift operator takes the truck loads and begins to move the load into the warehouse – accidents can occur if each operator isn’t looking out for the other driver.
Some warehouses work with toxins and other hazardous materials. Any spill can cause serious injuries which can damage a warehouse worker’s lungs or skin. Lung injuries can cause breathing difficulties. Inhaling dangerous chemicals can also cause cancer and other injuries. If the spill comes into contact with the skin, the warehouse worker can suffer severe burns. Chemical injuries require immediate medical attention. Workers may suffer permanent injuries and disfigurement.
Warehouse worker at big companies like Amazon are often required to treat with in-house clinics such as AmCare. According to one report, “In 2014, a National Association of Worksite Health Center study found that 43 percent of surveyed companies had an onsite or near-site clinic in place.” Amazon began using AmCare clinics in 2009. These clinics are generally staffed by licensed EMTs. Amazon’s website claims that one of AmCare’s purpose is to “participate in the Worker’s Compensation process.”
The EMTs at the company site generally have broad discretion in deciding whether a worker should be sent to see a physician or if they should be treated in-house for 21 days, after which Amazon does require that AmCare refer the employee to an outside physician. AmCare is generally designed for quick relief. Some workers, according to the report, say that – while AmCare has broad discretion in referring workers to doctors, the company doesn’t have physicians on site – which is just part of the difficulty warehouse workers face. They claim Amazon has high production pace requirements which affect worker health.
All that being said, please understand that under Virginia law, unless and until an injured worker has established an ongoing pattern of care with a particular physician, he or she would be entitled to choose from a three-doctor panel of physicians. An employer who simply shuffles an employee off to a “company-designated” physician is not following the law. If you have only seen such a physician or other healthcare provider once after a work injury, and for whatever reason, you are not satisfied, you need to file a claim form and thereafter also claim your right with the Commission to your three-doctor panel immediately. Do not let time go by wherein you continue to treat with the “company doctor,” otherwise, that doctor will be deemed your authorized treating physician. On the other hand, you must not unjustifiably refuse to see a physician being offered you. When asked why you are not seeing the “company doctor” you must tell the adjuster you are exercising your right to a three-doctor panel and you would like to choose your doctor from that panel.
Warehouse workers will seek treatment with many different doctors and therapists depending on the types of injuries they suffer. Some of these health care providers might include:
Workers who suffer emotional injuries along with their physical injuries may also need to treat with psychologists and psychiatrists.
Any North Carolina or Virginia warehouse worker who is injured on the job:
Virginia and North Carolina workers’ compensation lawyer Joe Miller Esq. understands how dangerous warehouse jobs are. He’s helped thousands of injured workers get just work injury companies. He explains that there is no need to prove fault. Employees who are injured while working for their employer should generally be compensated for their lost income (up to the amounts allowed by law) and for all their necessary medical expenses.
To speak with an experienced workers’ compensation lawyer call Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to schedule an appointment. Cases are handled on a contingency fee basis.
Posted on Tuesday, May 5th, 2020 at 4:39 pm
As of December 2019, more than 1.1 million people worked in the warehousing industry, according to data from the Bureau of Labor Statistics. Warehouse jobs include industrial truck operators; people who move and handle freight stock, and materials, clerks in shipping and receiving; stock clerks; people who complete orders; and storage and distribution managers.
As the COVID-19 pandemic is altering the lives of everyone; more and more people are depending on efficient warehouse operations for their Amazon delivers, groceries, and a range of essential products. In addition to thanking these workers for essentially helping to save our lives, we also appreciate that all the work (often including extra hours now) can result in serious injuries in the workplace.
The Bureau of Labor Statistics recent reports confirm that for every 100 warehouse workers, 5.1 workers were injured during the work year. Which is generally higher than the average workplace injury rate for all work sectors. (click here for a video on whether you can obtain comp benefits if you get sick from COVID-19 on the job).
Any employee who is injured while working at a warehouse has the right to file a workers’ compensation claim for 2/3rds of their average weekly wages and for all reasonable medical bills related to the injury. Some workers may also receive vocational rehabilitation benefits.
Some of the more common ways that injuries occur while working in a warehouse include the following.
These devices are small trucks used to move, store, raise, lower, and move inventory, pallets, boxes, and other items. Generally, forklift operators drive these trucks throughout the warehouse. These trucks can result in injuries or death for many reasons. Some workers aren’t properly trained in how to use forklifts. Many injuries occur when workers take incorrect turns, their loads drops, the forklifts run into or pin other workers, or for other reasons.
According to Safety and Health Magazine:
According to Safety and Health Magazine, overexertion is another leading cause of injuries and deaths for warehouse workers. These injuries are due to using too much force or stress in doing tasks such as lifting, carrying, pushing, and pulling objects. Workers who suffer overexertion injuries often need to time off from work to treat injuries to their neck, shoulders and backs. Other injuries due to overexertion include harm to the wrists, arms, and knees. Overexertion injuries can lead to acute pain. They can also lead to chronic pain which can require weeks, months, or even a lifetime of continual treatment.
Overexertion injuries include strains and sprains, torn ligaments, joint damage, tissue injuries, and nerve injuries. Overexertion can also cause heart attacks and heart disease.
Employers can help reduce overexertion injuries by:
Loading dock injuries can occur for different reasons. Often, the injuries or deaths involve forklifts and trailers that fall off the docks. Workers can also be knocked off the docks or suffer serious slip and fall injuries if they are knocked down by a forklift or trailer. Warehouse workers who work near these vehicles for long stretches of time may suffer carbon monoxide poisoning. Other common injuries occur when there is an uneven surface between a truck and loading dock such that a dolly may get stuck or fall into a space and thereby cause injury to whomever is pushing the dolly.
There’s a lot of moving activity at a warehouse. Forklifts are in constant motion, Workers are pushing and pulling carts and other devices to move the loads around too. Many workers can easily be struck be loads from the forklifts or from the shelves if the inventory is not properly loaded and secured. Warehouse workers can be injured if the company requires that items be stacked very high.
Workers who are struck by objects, especially heavy ones, can suffer traumatic brain injuries, head and neck injuries. back injuries, broken bones, and a range of other serious injuries that require time off from work to properly treat.
Many warehouse injuries are due to a worker being pinned between a forklift and a wall and between different pieces of equipment. Sometimes the injures affect the whole body. Often, a warehouse worker’s hand or fingers are pinned. Workers who are caught between objects can suffer:
North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. understands how much every-day hard workers are now putting their lives on the line to serve others, particularly now, when many warehouse workers are deemed “essential” in Virginia to keep goods and services rolling to quarantined consumers. It’s only just and proper that if warehouse employees are injured while working, that they should receive all of the worker’s compensation that the law allows. Joe Miller has been helping workers get the recoveries they deserve for workplace injuries for over 30 years. To discuss your workers’ compensation claim, call us at 888-667-8295. or use our online contact form to schedule a free consultation.
Posted on Thursday, March 26th, 2020 at 11:10 am
Clearly many folks are concerned right now about the effect on their weekly compensation checks of any potential layoff of themselves and their fellow employees at work or company closures due to the severe economic downturn and mandatory closures related to the Coronavirus.
This is a very important question right now and also this particular question regarding layoffs happens to be an evolving and very active area of VA Workers Comp law.
The short answer is if you are currently under an ongoing, finalized Award for benefits, meaning an Award for weekly checks for either Temporary Total or Temporary Partial Disability, then NO, you will not lose your benefits; however, if you are NOT under an Award yet and your position is permanently eliminated or the layoffs are clearly permanent with no chance of re-hiring, then you will likely have a very difficult time of trying to obtain comp check benefits from the date of such layoff forward. You may only be able to claim benefits up until the date of the layoff. It’s not impossible to prove ongoing benefits in a permanent layoff situation, but you will be required to rise to a very high level of proof to show that your inability to obtain a job is due to your disability and not just to your job being eliminated permanently.
That being said, if the layoff is only temporary—as many will likely be in our current situation—then if you are not under an Award and on light duty, you would still be able to claim benefits; however, you would need to engage in active marketing of your residual capacity to work in order to prove your inability to find a job. And of course, you will likely end up at a Workers Comp Commission Hearing to prove you engaged in adequate marketing.
Of course, those held out of work 100% by their doctors due to their work injuries and have the physician’s work notes to prove it would not need to prove marketing.
If this all seems confusing, I encourage you to first see my video on the importance of being under an Open or Ongoing Award for benefits in Virginia. It’s important to understand what an Award accomplishes for you in Virginia.
So why is someone under an ongoing or Open Award in a better position compared to someone who is not in a layoff situation?
It’s because when you’re under an ongoing Award, that Award is a proclamation or Order by the Virginia Workers Compensation Commission that you are entitled to the weekly benefits stated in that Order on an ongoing basis, until proven otherwise by the defense. In other words, you have met your burden and you have won your case. Many times, the Award occurs due to an Award agreement, but the result is the same—once that Award has been entered by the Commission and the 30 day appeal period has passed, the Order is Final and you have won.
When you have an ongoing or Open Award for weekly benefits, it becomes the defense’s burden to prove you’ve been returned to full duty and that you are capable of performing your pre-injury work if they want to get out of paying you those weekly benefits. There are a few other ways for them to stop the Award, such as failure to comply with medical treatment or vocational rehabilitation, but they’re not relevant to our discussion right now.
If the defense cannot prove you are capable of a return to full duty, then you are going to remain under your ongoing Award and they still have to pay you your ongoing, weekly benefits even during the layoff and even if the layoff is permanent.
Now what about folks who are not under an Award yet, but are trying to prove one?
The case law is clear that for folks who are not yet under an Award, the difficulty of proving you are entitled to benefits really depends on whether the layoff is temporary or permanent.
This is because an injured worker who is not yet under an Award has no Order from the Commission regarding anything. Nothing has yet been proven, so the burden of proof remains on the injured worker to show he or she is entitled to benefits.
In a temporary layoff situation, if you are on light duty, assuming your employer does not accept you back at light duty status, so long as you are able to prove sufficient marketing of your residual capacity to work (i.e. looking for work elsewhere within your physical restrictions) during the temporary layoff, you should be able to prove you’re entitled to benefits. Of course, you will likely have to go to Hearing to prove that.
Again, if you are in a temporary layoff, and your authorized treating physician has you out 100% due to your injuries, then since you currently have no residual capacity to work per your doctor, you do not have to market or look for work. You would only need to prove your total incapacity with your doctor’s work notes and office notes.
Unfortunately, for those of you whose positions are eliminated and are fully and permanently laid off along with your coworkers, if you are on light duty and not yet under an Award, you will unfortunately find it much more difficult to be able to claim ongoing weekly workers comp benefits. The case law in such circumstance requires a higher level of proof to show that your economic loss is due to your injury and not the elimination of your job.
The Commissioners and Judges have reasoned in the case law that since you don’t yet have an Award, and your job has been eliminated, the burden is on you to prove economic loss due to your work injuries. And since the burden is on you for proof and since the reason you don’t have a job is because your job was permanently eliminated, then you need to prove your economic loss is actually related to your work injuries and not just the fact that your job does not exist any longer. In such cases, just doing the marketing/looking for light duty work as usual is probably not enough. There needs to be proof that not only can you not find a job, but the reason you cannot find a job is because of your work restrictions as set forth by your treating doctor. If you don’t have such proof, then the Commission will find that the loss is not related to your work injury. They will find that it is related to the fact that your job no longer exists.
Such proof may be through the hiring of an expert such as a vocational rehabilitation expert, and/or through some kind of testimony or other evidence from one or more of the potential employers where you applied that you could not be hired because your work restrictions could not be accommodated.
We think that the decision by the Court of Appeals back in 2016 which raised the standard of proof for permanently laid off employees was wrong and a harsh result, and in fact there were strong dissents by Judges on the case, but unfortunately those Judges were outvoted and that is the law in Virginia.
The only good news is that in many of the Full Commission decisions that have followed this 2016 Court of Appeals Case, the Commission has gone to great lengths to say it does not apply to the situation at hand. Clearly, the Full Commission also feels the Court of Appeals went too far and takes every opportunity to try to limit the harsh effects of that decision.
Also, just to be 100% clear, it is very important to distinguish between an Open or Ongoing Award and a Closed Award. A Closed Award is for some past period of weekly payments that has now ended because you have returned to work. Although such an Award contains a lifetime medical benefit and is also evidence that your claim is compensable (meaning there is no longer a defense that you did not have a legitimate, on-the-job injury) in terms of attempting to get your checks started again because you have been laid off, it’s almost like have no Award at all. In other words, if you’re on light duty, you would have to prove it’s a temporary layoff and you would have to prove marketing just like the folks with no Award at all. And just like those folks, you would not be able to prove any entitlement to ongoing checks if your layoff became permanent.
We hope this article has been helpful.
From all of us here at Joe Miller Law/The Work Injury Center, please stay safe, please follow the CDC COVID-19 Guidelines for prevention, and God Willing we will all get through this safely together.
Attorney Joe Miller has been representing injured workers in Virginia and North Carolina for over 32 years. If you have any questions about a worker’s compensation injury incurred by you or a loved one, please do not hesitate to reach out to us at 888-667-8295 or fill out our online contact form
Please do not wait to contact us, as there are time deadlines for filing your claim. If you fail to meet those deadlines, your right to benefits will be forever lost.
Posted on Saturday, March 21st, 2020 at 2:18 pm
The JLARC’s review of Virginia’s workers’ compensation laws focused on a variety of issues including the relationship between firefighting and 10 different types of cancer to determine what presumptions should apply. They study was performed by epidemiologists at Johns Hopkins University’s Bloomberg School of Public Health.
We discussed some of these issues in a previous article. The general findings of the study were as follows:
83 studies on cancer, heart disease, respiratory disease, and PTSD among firefighters and police officers were analyzed and evaluated for quality and bias.
The epidemiologists made the following findings regarding the validity of Virginia’s current and proposed cancer presumptions:
Johns Hopkins University epidemiologists determined that the best available evidence provides some support for most of Virginia’s current and proposed cancer presumptions.
The study found that the firefighters had an increased risk of the following types of cancer:
The Johns Hopkins study did not have enough evidence on the following cancer types:
No research was done on ovarian cancer. This is interesting, since pancreatic cancer and breast cancer are specifically listed in VA Code 65.2-402 ( C ) among those cancers to be presumed to be an occupational disease. As mentioned in a previous article on this subject, the mention of pancreatic cancer is inherently contradictory since it is really impossible to know what caused any pancreatic cancer based on our current state of scientific knowledge.
The JLARC report, based on the John Hopkins study, recommended that worker’s compensation laws in Virginia create presumptions for the following cancer types:
The reports added that colon cancer could be added to the list though the evidence for adding it wasn’t as strong as the other two cancer types.
Current cancer presumptions which should be maintained or could be subject to a sunset provision depended on the following:
Enactment of Virginia House bill 1804 (which adds several cancer presumptions) for firefighter should result in just about six new compensable workers’ compensation claims yearly – though the five year total is expected to be high.
“Some additional liability would be created for firefighters no longer working with an employer and still within statute of limitations.”
The JLARC also found that the “requirements to establish cancer presumptions for firefighters are unreasonably burdensome and appear counter to the purpose of the presumption.” This is the same comment I had made in my previous article on this subject.
Most disputed claims by firefighters for Virginia workers’ compensation benefits – between 2019 to 2018 – found that the firefighter would not be entitled to benefits – in large part because of the failure to prove exposure to the right substance.
Of the 20 firefighter/cancer cases heard during that timeframe:
The “presumption covers firefighters who have had “contact with toxic substance encountered in line of duty.” A big part of the reason for these denials was that firefighters were required to “prove exposure to specific carcinogen suspected to cause their particular type of cancer.” “Of 16 cases heard by VWC in which firefighters did not meet all requirements, the firefighter did not meet the toxic exposure requirement in seven.”
The Johns Hopkins scientists found that:
The study found that it would be sufficient if firefighters were required to show exposure to hazardous conditions that, in turn, exposed them to carcinogens.
Another finding by the JLARC study was that Virginia’s requirement for 12 years of continuous service was not supported by scientific evidence (studies have shown that less service time could cause cancer) and was the highest in the country (the next highest was 20 years). In fact, there is case law that says that assuming there is sufficient proof that a firefighter has a type of cancer caused by exposure to known cancer-causing toxins that match up to that cancer, he or she need only prove ONE SINGLE EXPOSURE to a fire to prove there was sufficient exposure. In that context, the 12 continuous years of service makes little sense.
Virginia workers’ compensation lawyer Joe Miller Esq. has been fighting aggressively for injured workers and workers who suffer occupational illnesses – for more than 31 years. He understands how dangerous firefighting, policing work, and other types of first response work are. For help with any illness claim based on your work, please phone Joe Miller, Esq., at 888-667-8295. or use my online contact form to speak with a strong advocate.
Posted on Thursday, March 19th, 2020 at 2:24 pm
Virginia and North Carolina Workers Compensation Attorney Joe Miller here explains why with some possible exceptions, it is unlikely that you would be able to pursue a compensable claim based on your contraction of the COVID-19 or Coronavirus at work. The possible exception might be someone whose sole job is to treat patients who are known to be infected with the virus, or test people for infection with the Coronavirus. Even then, it would be challenging.
Posted on Thursday, March 19th, 2020 at 2:16 pm
This is the third in a series of recommendations by the Joint Legislative Audit and Review Commission (JLARC) for how to improve the Virginia Workers’ Compensation system. Earlier articles discussed executive recommendations and legislative recommendations. This article is a continuation of the legislative recommendations.
Recommendations 21. The JLARC recommends that the Virginia General Assembly consider changing the Virginia Workers’ Compensation laws to address amending the criteria for establishing presumptions with respect to certain occupational diseases of first responders as follows:
Recommendation 22. The JLARC recommends that the state legislature consider amending the state workers’ compensation laws for certain occupations diseases of first responders to reduce the “years of service requirements from 12 years.” Right now, they must show continuous service of 12 years to be eligible for the disease presumptions.
Recommendation 23. The Virginia General Assembly should consider amending the current work injury laws so that the word “continuous” is removed from the years of service requirement part of § 65.2-402.c for first responders.
The JLARC also recommends that the following options be considered by the Virginia General Assembly regarding amending § 65.2-402 of the Code of Virginia (the state’s workers’ compensation law):
Presumptive disease laws, according to Business Insurance, have been in place in many states to help protect firefighters, police officers, and other first responders such as EMT personnel. The presumptions are used in occupational illness cases. Anyone who is hurt in a workplace accident has the general right to file a workers’ compensation claim provided that the accident caused their injuries, but occupational disease cases do not require a specific accident to have occurred.
Occupational disease claims are based on the premise that some workers are exposed to unique hazards at work that are beyond those to which the general public is exposed. Normally, workers have the burden of proof to show:
Unless the disease is one that is typically recognized in the case law and statutory law as an occupational disease, proving these two elements can be quite difficult. The presumption that a disease is occupational shifts the burden to the employer to show that the disease uniqueness and causation factors do not explain the worker’s illness. Otherwise, the disease is considered an “ordinary disease of life” and to be compensable, the injured worker must meet a standard of “clear and convincing evidence.”
Presumption laws in many states already help emergency personnel and other first responders by allowing for presumptions for heart and lung disease. Business Insiders says that there is push in many states to apply the presumption of compensability to other disorders such as:
The shift in presumptions is generally a balance argument. Employers argue that shifting the presumptions will increase their employer insurance costs. Opponents of expanding presumptions argue that public safety workers in some states have other types of occupational disease protections or that that emergency responders are trained to handle some of these disorders such as stress situations.
Advocates for firefighters, police officers, and other ER officers argue that the shift is only fair because these brave workers put their lives on the line every day. Opponents to expanding the presumptions argue that, “There’s greater scientific knowledge, but that doesn’t mean that it’s all attributable to the workplace, and municipalities are very vigorous in their opposition of expanding the costs of workers compensation.”
According to the International Association of Fire Fighters, over 40 states have some type of presumption allocation for public employees in the areas of heart and lung disease, cancer, infectious diseases, or mental health diseases.
“A 2013 study by the National Institute for Occupational Safety and Health found that firefighters have increased rates of cancer. That data has led to an influx of proposed cancer presumptions, said Jim Brinkley, Washington-based director of occupational health and safety at the International Association of Fire Fighters. Opponents argue that the scientific connections showing links between the workplace conditions and diseases are not strong enough yet.
As discussed in a previous article, although Virginia does have such presumptions in place for certain cancers amongst firefighters, Virginia has made the standards of proof difficult to meet in the event a firefighter should contract cancer, even listed cancers such as pancreatic cancer, since we have no idea what causes pancreatic cancer. That is why the JLARC has recommended a loosening of those standards for our first responders.
Virginia work injury attorney Joe Miller Esq. understands Virginia workers’ compensation law and keeps current with any changes. He understands that while many workers file claims based on workplace injuries, workers who spend a lot of time with an employer and become ill due to the type of work they do should also be able to demand workers’ compensation. For help with all workers’ compensation claims in Virginia, call Joe Miller, Esq., at 888-667-8295. or complete my online contact form to schedule an appointment. Cases are handled on a contingency fee basis.
Posted on Wednesday, March 18th, 2020 at 10:35 am
The Joint Legislative Audit and Review Commission (JLARC) followed up its recent review of the Virginia Workers’ Compensation system my making specific legislative, executive, and policy recommendations. Some of the recommendations, in addition to those discussed previously, include:
I have said previously that this is a great idea, and that I would go further and say that the VWCC should also designate a few Commissioners or Deputy Commissioners to further disseminate this information in video format that is clear and easy to understand. The most important thing that I think most injured workers do not understand is the importance of being under an Award Order and the process that is necessary to get that done.
Also an excellent idea. Some of the folks who you will get on the phone at the VWCC are very knowledgeable. Others not so much. The other problem is it is sometimes very hard to distinguish between giving legal advice and just providing information. I suppose the distinction would be if someone calls and asks “Should I file a Claim?” That is something the VWCC folks cannot tell you as that would be legal advice; however, they CAN tell you all of the necessary steps should you choose to file your claim and provide an easy guide to make it easy for that to happen.
As noted in the previous article, many injured workers do not understand that they have the right to contest the denial by the insurance company. They believe that is the end of the line. As noted previously, these decisions to accept or deny a claim are often made by adjusters who may not be knowledgeable about Virginia Law. These incorrect decisions can and should be challenged by filing a claim as soon as possible. Sometimes, all it takes is a little “education” of the adjuster on the part of our firm, and the claim becomes accepted.
Notices should have been sent to all applicable injured workers no later than January 31, 2020.
Also an excellent idea. So many calls to our office are from folks who never filed a claim because they did not know they had to or did not know there was a two-year time limit.
It is very sad to have to tell these folks that they no longer have a case.
The JLARC recommends that the Virginia General Assembly consider directing the VWC, through the Appropriation Act, to hire a neutral but reputable national research organization (skilled in workers’ compensation policy) to:
(ii) summarize key policy considerations associated with modifying statute to cover cumulative trauma injuries.”
The VWC should submit the proposals to the House Appropriations and Senate Finance committees by November 30, 2020.
As noted previously, other than carpal tunnel syndrome, under the current law, a compensable claim is only one where the injury occurred at some definite time and involved a “sudden mechanical change” in the body. Working over a period of time and developing spinal disease or bursitis from years of heavy labor, is, for instance, not compensable.
This is an interesting recommendation. Currently, there is a requirement that to make a claim for a psychological injury from work, one must have undergone a “sudden shock or fright.” It is presumed that those whose job it is to, for instance, investigate murders or other gory scenes would be reasonably expected to be exposed to such scenarios on a fairly frequent basis. Therefore, usually such persons would be precluded from bringing a claim for PTSD because an exposure to such an event is not a “sudden shock or fright,” because his or her job requires such exposure.
Virginia workers’ compensation lawyer Joe Miller Esq. has been fighting for injured workers in Virginia for more than 32 years. He’s helped thousands of employees obtain a just recovery for their medical expense, wage loss entitlement, and any other benefits that may apply. He helps workers when insurance companies try to force workers back to work too soon. To review your Virginia workers’ compensation case with Joe Miller, Esq., call me at 888-667-8295. or fill out my online contact form to make an appointment.
Posted on Monday, March 16th, 2020 at 10:20 am
The Joint Legislative Audit and Review Commission (JLARC) followed up its recent review of the Virginia Workers’ Compensation system with a series of recommendations for improving how to best benefit injured workers while respecting the rights of employers. The general recommendations are these:
The JLARC recommends that the state legislature:
We see this frequently in our practice. A worker is injured, sometimes severely, and the insurance company has given no clear answer on whether they are going to deny or accept the claim. Meanwhile, week after week passes with no incoming checks. Maybe the insurance company has elected to cover the medical treatment; maybe not.
Even after we file the claim, which typically results in the issuance of a 20-Day Order, meaning the insurance company is supposed to have only 20 days to respond to the claim, there is often no response from either the insurance company or the Commission. Many times, we have to call the Commission and ask them to place the matter on the docket due to the lack of response.
In still other cases, there is a response, but it is something vague such as “the matter is still under investigation.”
JLARC is certainly right about this. Insurance companies should not be permitted to indefinitely fail to clarify whether they are accepting or denying a claim. Of course, a reasonable period of time must be permitted in the event further investigation by the insurance company is required after a work injury. But there needs to be a time limit. For instance, North Carolina gives a 90-day deadline. If they can’t respond in that time frame, then the claim is considered accepted.
The JLARC also recommends that:
I would even go further and require some of the Commissioners to do a series of public service videos to break down the law and its requirements as clearly as possible for injured workers and their families, and put those videos up on the VWC Website.
Each and every day, we have to tell folks who call our office that they do not have a case because the injured worker failed to follow some requirement of the law, such as filing their claim within the two-year statute of limitations. It is not really their fault, because except for places like this, the information on the requirements to preserve and enforce your rights under the Virginia Workers Compensation Act are not widely publicized. This is on purpose, because the insurance companies—who have a large lobbying presence—do not want you to know this information.
The JLARC recommends that workers’ compensation policies add the following:
The full list of recommendations includes the following:
This is a great idea and long overdue. There need to be consequences for those insurance adjusters who just “sit on their hands” and do not respond to claims that are filed.
their decisions in a timely manner after receiving notice of work-related injuries and diseases and
(ii) actions taken by VWC to ensure the timeliness of these decisions.”
This recommendation states that the first report on this topic should be “submitted by VWC to the House Appropriations and Senate Finance committees no later than June 30, 2022.”
Virginia work injury attorney Joe Miller Esq. understands Virginia workers’ compensation law. He keeps current with any changes to the law and he understands the arguments insurance companies make to try to reduce or deny your claim. For more than 32 years, he’s been a strong advocate for injured workers. For help with your work injury or occupational illness claim, call Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to schedule an appointment with an experienced Virginia workers’ compensation lawyer.
Posted on Tuesday, February 25th, 2020 at 9:55 am
In addition to the findings previously discussed, the Virginia Joint Legislative Audit and Review Commission also found the following:
In the area of firefighting and various types of cancer, JLARC reviewed a study of available scientific evidence examining the causal connection between firefighting and 10 different cancer presumptions. The study was done by epidemiologists at Johns Hopkins University’s Bloomberg School of Public Health. The study did find some mixed results. Still, it did find enough of a causal connection to “support a plausible connection between firefighting and the cancers currently included as presumptive diseases in the Code of Virginia.”
It also found plausible connections between firefighting and colon cancer, testicular cancer, and brain cancer – three cancer types that Virginia is considering adding to the state law. The causal connection that is the weakest (but still plausible) is between firefighting and colon cancer.
The reason it is unreasonably burdensome to document carcinogen exposure, according to researchers at John Hopkins University, is that is cost prohibitive and because of the inability of current technology to prove the exposure. “Additionally, requiring a firefighter to identify a single carcinogen that is known to cause his or her type of cancer appears counter to the purpose of the presumption, which is to relieve firefighters of the need to prove that their occupation caused the disease.”
The JLARC raised the following concerns about the disability requirement:
There are times when a “firefighter’s cancer was not presumed to be caused by work simply because the worker did not have a period of wage loss. Whether a firefighter loses wages because of his or her disease does not appear to be relevant to whether his or her employment caused the disease.
The JLARC found that the requirement that firefighters work 12 or more years under the state cancer presumption statute was not clear and “does not align with research on cancer among firefighters.” Researchers at John Hopkins University found cases were exposure for less than 12 years could create an increased caner risk. The 12-year requirement is also longer than that for many other states.
The risk of heart disease increases the more years a worker does his/her job. There is credible scientific evidence that the risk of heart disease among public safety workers does increase as the years of service increase. Other states have a years of service requirement that public workers must meet in order to benefit from a cardiovascular disease presumption. Virginia dose not have a statutory requirement for years of service. JLARC states that a specific years of service requirement would:
The JLARC doesn’t currently recommend an alternative benefit program for public workers such as firefighters – which is what some states, since 2017, have done to help public safety workers get the wage benefits, medical payments, and rehabilitation expenses they deserve.
JLARC believes that improvements to the current Virginia workers’ compensation system would be beneficial. The report includes numerous recommendations for how to make the state workers’ compensation system address its shortcomings. JLARC recommends implementing these recommendation before considering any broader changes.
These recommendations include legislative action, executive action, and implement specific policy options.
As a firm who represents injured workers, including first responders, we sincerely hope that the legislature in Richmond sees fit to make the recommended changes so that police and firefighters are not prevented from making claims for heart disease, cancer and other occupational diseases set forth in the law.
Virginia workers’ compensation lawyer Joe Miller Esq. helps workers who suffer an injury due to a workplace accident. He also fights for workers who develop an occupational disease due to their workplace environment. He fights to obtain payments for long-term medical care when needed due to injuries or a disease. He also seeks to classify a worker who qualifies as having a permanent disability. He demands payment for all allowable lost wages (the percentage authorized by statute). To discuss how to prove your claim and how to verify your medical needs and wage rights, please call attorney Joe Miller, at 888-667-8295. or fill out my online contact form to schedule an appointment.
Posted on Monday, February 24th, 2020 at 9:53 am
The Joint Legislative Audit and Review Commission (JLARC) is a Virginia organization that provides oversight to numerous state agencies including the Virginia Workers’ Compensation agency. The JLARC is specifically authorized to by the Virginia Code to conduct reviews and oversight.
In December 2018, JLARC began a review of the workers’ compensation system for the state and specifically reviewed how disease presumptions are handled. The main goals of the review were to:
Workers’ compensation is designed to help workers who suffer injuries while doing their job or suffer an occupational illness because of their work environment. Employees who can’t work due a workplace injury or an occupational illness are generally entitled to three benefits:
Often a key to winning an occupational illness or disease case is determining whether the worker’s illness was due to workplace conditions and not conditions that he or she may have been exposed to outside of the hazardous work environment. Virginia law assumes that some jobs are so inherently dangerous that there is a presumption that if the worker did a certain job, that specific illnesses such as cancer are presumed to be the consequence of the job if they end up with that disease. A presumption that there is a relationship between a disease and a job makes it easier for the employee to be awarded his/her workers’ compensation benefits. Workers can still prove their illness was job-related if there is no presumption – but more evidence is required. Employers can rebut presumptions if they have compelling evidence that the workplace environment did not cause the occupational illness.
The oversight review made the following findings:
JLARC noted that delays do happen while the insurers for the employers are reviewing whether the worker’s claim is compensable. For example, the JLARC stated that, for firefighters, insurance company delays in review their claims, was the second leading challenge. Virginia is one of only several states that doesn’t have a statutory frame for when insurers must make a decision about compensability.
This is one of our “pet peeves” as well here at The Work Injury Center. We are constantly receiving calls from potential clients who have essentially ruined their own cases due to this lack of information available to injured workers in the Commonwealth relating to Workers Compensation.
It is very frustrating to us when we have to reject what might have been a perfectly compensable claim because the injured worker took certain unadvisable steps before checking with a worker’s compensation attorney or seeking out information on the subject.
This is why we are constantly uploading new videos and producing articles such as this one to attempt to educate the public as much as possible about the Workers Compensation Law and process. It is our attempt to make up for the lack of information provided by the Virginia Workers Compensation Commission, as cited by JLARC.
As a practical matter, employees should consult with experienced workers compensation Virginia lawyers to understand their rights, to process their claims correctly, and to get the help they need with each phase of the workers’ compensation process.
Again, we strongly encourage anyone with any questions relating to workers compensation to also explore our website. We also have a wealth of videos both on our website as well as on our YouTube Channel relating to many, many issues facing injured workers. I do my best to “break it down” for you. If you’ve been hurt in an accident, we urge you to arm yourself with the extensive knowledge that we have made available to you.
JLARC’s report stated that more than 200 firefighters who had a job-related injury or illness were not aware that they had the basic right to contest an insurance company denial of their claim to the Virginia Workers’ Compensation Commission. The remedy for that is to make sure you file a claim and get to a Hearing. Many firefighters also stated that they thought reporting their diagnosis of heart disease or cancer to their employer was all that was required – when they had to take the additional step of filing a formal claim with VWC. The failure to file the claim can result in a full denial of benefits if a timely claim isn’t filed.
We see this as one of the most common misconceptions when folks call our office about a work injury. The most common statement is “I’m pretty sure my employer filed my claim for me.”
We cannot repeat this enough: There is no such thing as your employer filing your claim for you. The ONLY way to protect your rights is to file a CLAIM FORM (previously called a Claim for Benefits) with the Virginia Workers Compensation Commission within two years of the date of your work accident.
Virginia work injury attorney Joe Miller Esq. has been helping injured workers get the recoveries they deserve for more than 30 years. He’s helped thousands of workers in both the private and public sectors get strong results. He’ll guide you through process, help your file your claim, contest all efforts by the insurance company to deny or reduce your claim, and negotiate fair settlements when possible. To speak with Joe Miller, Esq., an experienced Virginia workers’ compensation lawyer, call me at 888-667-8295. or fill out my online contact form.