Psychiatric or Psychological Treatment in a Worker Compensation Case

Posted on Wednesday, July 29th, 2020 at 1:19 pm    

Workers Compensation Attorney Joe Miller explains the advantages of not ignoring significant psychological issues that may be related to your severe, catastrophic work injury. Getting the right psychiatric treatment, and not being ashamed to do so, could mean the difference between getting a small settlement, or substantial settlement in your workers comp case.

Common Mistakes that Can damage Your North Carolina or Virginia Workers’ Compensation Case

Posted on Wednesday, July 22nd, 2020 at 9:53 am    

Workers have the right to file for workers’ compensation if they are an employee, if they are hurt on the job, and if the injuries they suffer stop them from working. Workers may also be entitled to work injury benefits if they suffer an occupational illness due to their job. There is no requirement to prove the employer was at fault. The claims process is normally easier than in a personal injury case. Still, there are many mistakes employees can make that can hurt their case. Just one key mistake can affect your entire claim or your ability to get all the compensation you deserve.

The insurance companies for the employers will be looking to take advantage of any mistake to deny your claim or reduce your benefits. The best course of action is to speak with an experienced workers’ compensation lawyer as quickly as possible. An experienced work injury lawyer will guide you through each stage of the litigation. 

Key mistakes workers should avoid

Some of the key errors experienced North Carolina and Virginia workers’ compensation lawyers help their clients avoid are:

  • Waiting to get medical help for any injuries. Employees shouldn’t try to be heroes by refusing medical treatment. Many minor injuries have hidden symptoms. Delay can make a minor injury become more serious. 

Employees should seek help so the injury can be examined, diagnosed, and so a treatment plan can be implemented. Seeking medical help also verifies the injuries. Insurance adjusters may try to argue that the delay means the injuries aren’t that serious. They may also argue that the injuries were due to some other medical condition or some other accident.

Bottom line. Doctors should evaluate your medical condition as soon as possible after an accident.

  • Waiting to report your injury to your employer. Both North Carolina and Virginia require that the employer be given prompt notice of any injuries, actually, in written form, within 30 days of your accident. Most of the time, reporting the injury to your supervisor is sufficient, but ideally, an accident report is much better. This is in part to verify your claim. It is also so the employer can investigate the underlying causes and work to fix those causes so other workers aren’t injured.

In addition, if you suffer a workplace injury, your private doctor may not be able to help you. If your injury is severe and a true emergency that requires surgery or other corrective measures, than the surgeon who treats you in the hospital will usually become your treating physician by default. 

In other scenarios, employers have their favorite providers, usually some type of franchise medical provider such as Patient First, where they will direct you first. 

In Virginia, that is actually not appropriate. Workers’ compensation rules require that employees who are not in emergency situations be provided by the workers compensation insurance company with a list or “panel” of three different health care providers for the employee to choose from. Again, barring a severe, emergency situation, failure to treat with a doctor on the panel in Virginia can affect your rights to workers’ compensation if you later decide to pursue your work injury claim. 

Your choice in treating doctors in North Carolina is unfortunately more restrictive than Virginia.  Unless the injury is severe enough to require immediate hospitalization, the employer and workers compensation carrier typically exercise complete control over your medical treatment. There is no requirement for a panel of doctors in North Carolina; however, North Carolina does have some other provisions allowing for an independent medical examination with an agreed-upon physician that Virginia does not. 

Failing to utilize an authorized doctor can have other negative repercussions. If you attempt to treat for a work accident utilizing your own health insurance, your insurance company may deny coverage on the basis that your employer should be paying for the medical care. 

In North Carolina, the Industrial Commission will typically pay no attention to the opinion of any doctor with whom you treat who was not approved or authorized to treat you by either the workers compensation insurance company or the Industrial Commission itself. 

In Virginia, non-authorized physician opinions carry less weight than the opinion of your authorized treating doctor, but the Commission will consider those opinions nonetheless. 

  • You assume the employer and the insurance carrier have your best interests at heart. It’s a mistake to assume your employer and insurance carrier will automatically pay you if you are injured – even if it’s 100% clear that you were injured while doing your job. It’s also a mistake to assume that – if the insurance company pays you – that it will continue to pay you. The insurance company is only obligated to pay you in Virginia when there is an Award Order approved by the Virginia workers’ compensation commission. If the employer is paying you without a formal order, they can stop paying you as soon as you are released to light duty.  You’ll then have to seek legal counsel and engage in several steps, including a Hearing, to obtain the formal order. It’s better to seek legal counsel right away – even if the employer and insurance carrier sympathize with you.
  • You fail to keep proper medical records, especially work notes. You can’t be paid if there aren’t medical records to support your claim. You can’t successfully counter any effort by the employer to deny your benefits such as arguing you’re fit and can return to work – unless you have proper medical records, which most importantly include the doctor’s note which either gives you an excuse to be out of work completely, or provides you with physical restrictions what allow you to work only within those physical restrictions due to your injuries.  While your doctors will have their own records, it’s up to the employee to have those records as well. When the time comes to file your claim, along with those filings must be records which act as proof of your injuries on the job as well as your ongoing inability to return to that job due to your injuries. Without those records, you have no case.  You should also keep records of the cost to get to and from the doctors if you take public transportation or use a private service such as a taxi or rideshare. You should also document all your symptoms and questions so that you can review the symptoms and questions with your health providers each time you see them.
  • You don’t follow your doctor’s orders.  There are two primary reasons you need to follow your doctor’s medical advice – as best as you can:
    • Your doctor is trying to help you. If you don’t follow his/her advice, your recovery may be in jeopardy. If there is a reason for not following the advice, such as that the treatments are increasing your pain, you should review those concerns with your doctor.
    • The insurance company may try to deny your claim. Insurance companies routinely argue that employees should lose their workers’ compensation wage benefits and that their future medical bills should no longer be paid by the insurance company – if you stop following the doctor’s orders. Insurance companies generally have the right to assume the medical advice you are getting is competent. Any failure to follow a doctor’s orders (unless there is a very good reason) can result in a request to terminate your benefits. 

To make things worse, insurance companies often hire nurse case managers who basically act as spies for the insurance company to check to see if you are indeed following the medical advice of your doctors. I always tell my clients—don’t give them the satisfaction of messing up your case by you not following your doctor’s advice. 

Now sometimes, there are exceptions. The doctor may actually be incompetent, or  otherwise not providing you with a proper standard of care for your work injuries. In those rare situations, there are remedies and things that can be done to change treating physicians. This would have to be discussed with a competent workers compensation attorney. 

  • You think that you are going to get away with be secretive or about a previous injury to the same body part. One of the worst things you can do is lie to your doctor and/or your attorney about previous injuries or accidents to the same area of your body you injured in your work accident. You must understand that the workers compensation insurance company has vast resources at its disposal to discover all of your previous medical care, and the law gives them the right to investigate all of that when you bring a workers comp case. Doctor-patient privilege does not apply. So, one of the worst things you can do is be untruthful to your treating doctor. It will ruin your credibility with the doctor, and even more importantly, with the Deputy Commissioner who will hear your claim. Moreover, by lying about your medical treatment, you make it almost impossible for your attorney to present a “clean case” to the Deputy Commissioner for a decision. Before you even enter the Hearing room, you already have several strikes against you. 

 

Also, understand that unless you were still in active treatment for a previous injury to the same body part at the time of your work accident, it is extremely rare in workers compensation cases that a prior injury or other pre-existing condition will derail a case. The law recognizes that an aggravation of a pre-existing injury is considered a new injury. Your case will likely be fine. That is, unless you try to cover up that pre-existing injury by lying about it. Then you have created a problem in your case where none existed before. 

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. understands the ins and outs of filing a workers’ compensation. For more than 31 years, he has helped thousands of injured workers get just recoveries. To speak with an experienced North Carolina and Virginia workers’ compensation lawyer, call North Carolina and Virginia lawyer Joe Miller, Esq., at 888-667-8295, or fill out our online contact form.

Workers Compensation Case – Nurse Case Manager

Posted on Friday, July 17th, 2020 at 4:14 pm    

Workers Compensation Lawyer Joe Miller here explains the role of the Nurse Case Manager, particularly in Virginia. According to the law, they are supposed to help facilitate your treatment with your doctors. In reality, at least in Virginia, the Nurse Case Managers tend to act as proxies for the workers compensation insurance companies, and their primary interests are therefore aligned with them–which means–get you back to work even before you are ready, get you to the insurance-friendly doctors that they want you to see. and to the facilities that will skew your case in the insurance company’s favor.

The Occupational Injury and Illness Classification System (OIICS)

Posted on Tuesday, June 23rd, 2020 at 8:55 am    

According to the Centers for Disease Control and Prevention, “the Bureau of Labor Statistics (BLS) developed the Occupational Injury and Illness Classification System (OIICS) to characterize occupational injury and illness incidents.” There are been several revisions to the original system. The OICS breaks down workplace injuries and illnesses into the following four categories:

  • Nature of the injury or illness. The principal physical characteristic(s) of the injury or illness.
  • Part of Body Affected by the injury or illness. The part of the body directly affected by the previously identified nature of injury or illness.
  • Source and Secondary Source of the injury or illness. The objects, substances, equipment, and other factors that were responsible for the injury or illness incurred by the worker or that precipitated the event or exposure.
  • Event or Exposure. The manner in which the injury or illness was produced or inflicted by the source of injury or illness.

Each of the four categories is broken down into further subcategories. The categories include definition and examples. Some of the relevant sections, that may be used to assess workplace injuries and illnesses are the following. In many cases, an injury or illnesses may be categorized in another part of the OICCS

Event or Exposure

 

  • Violence and Other Injuries by Persons or Animals

 

    •  This category covers “violence and other injuries by persons or animals.” It includes intentional injuries, injuries with weapons (such as firearms and tools designed to be used as weapons) – regardless of intent. It also includes “injuries involving direct physical contact with persons, animals, or insects regardless of intent.” Unfortunately, this has become more of an issue these days, due to workplace violence and mass shootings. 
    • The category doesn’t include injuries due to overexertion or bodily reactions such as running after a suspect or being unintentionally hit by a box thrown or dropped by another person. It also doesn’t include unintentional drug overdoses and “exposures to infectious agents unless intentional or transmitted by an insect or animal bite.”
  • Transportation Incidents. The category includes transportation vehicles, powered industrial vehicles, powered industrial equipment involving at least one vehicle (or mobile equipment) –“and the injury or illness was due to collision or other type of traffic incident; loss of control – or a sudden stop, start, or jolting of a vehicle regardless of the location where the event occurred.”
    • There are additional requirements for transportation accidents involving pedestrians, roadway workers, and other non-passengers struck by a vehicle or other qualifying vehicles or powered equipment.
    • The category applies to many different vehicles including railway vehicles, animals and other non-motorized transportation, aircraft, water vehicles, roadway accidents, and pedestrian accidents. The category includes cars, trucks, RVs, motorcycles, buses, amusement park rail vehicles, canoes, fishing boats, Segways, snow mobiles, forklifts, and other listed vehicle types.
    • Falls “on or from vehicles are transportation incidents if the vehicle was in normal operation.”
    • This category doesn’t include events such as injuries due to the vibration of a vehicle, carbon monoxide poisoning, spilling hot drinks where there’s no collision, gear slips, and other specified incidents.
    • Vehicles that doesn’t fall into this category include, “dollies, carts, wheelbarrows Nonindustrial, non-roadway mobile equipment Wheelchairs–motorized and nonmotorized, stretchers, and wagons.”
  • Fires And Explosions. This category includes cases where a person falls or jumps from a burning building, inhales harmful substances, or is pinned or struck by objects due to the explosion or fire. The category also includes “incidents in which the worker was injured due to being trapped in a fire or whose respirator had run out of oxygen during a fire.” It doesn’t include fires or explosions caused by transportation accidents or intentional actions – which are covered elsewhere. It includes a variety of injuries to firefighters such as injuries from lifting hoses, arson and falls in a parking lot of a burning building. 
    • Injuries due to direct contact with flames from controlled sources such as stove tops that someone in a restaurant kitchen might suffer; and burns due to touching ovens, grills, and burners – are covered elsewhere.
    • In addition, many times folks who come through such experiences, as well as workplace violence will still suffer terrible psychiatric effects long after the physical injuries have healed. Our firm deals with many cases like this, which typically involve development of Post Traumatic Stress Disorder, or PTSD
  • Falls, Slips, and Trips. These include “falls on the same level, falls and jumps to lower levels, falls and jumps that were curtailed by a personal arrest device, and slips and trips that do not result in a fall.”
    • Falls that are covered in other sections includestepping to a lower level (such as, off a ladder, out of a vehicle, or off a curb), falls through openings in floors, or falling into a body of water. 
  • Exposure to Harmful Substances or Environments. Over time, long-term exposures to noise or other harmful substances such as asbestos, silica, or trichloroethylene (TCE) can result in severe impairments, such as asbestosis, cancer, brain damage, and death. 
  • Contact with Objects and Equipment. This category applies to contact between the injured person and the source of injury unless the contact is covered in another category such as a fall or a violent act. The category doesn’t include workplace contact with other people or animals. It also doesn’t include exposures to hot or cold objects or substances, contact with electrical currents, exposure to toxins or allergic substances, and exposures to infectious agents. Those contacts are generally covered in other categories.
  • Overexertion and Bodily Reaction. This category applies generally to non-impact injuries or illnesses that result from “free bodily motion, from excessive physical effort, from repetition of a bodily motion, from the assumption of an unnatural position, or from remaining in the same position over a period of time.”
    • Further subcategories include:
      • Overexertion and bodily reaction, unspecified. Examples include lifting, pushing, pulling, turning, holding, carrying, wielding, throwing, and catching
      • Overexertion involving outside sources
      • Repetitive motions involving microtasks 
      • Other exertions or bodily reactions 
      • Multiple types of over-exertions and bodily reactions 

North Carolina workers’ compensation lawyer Joe Miller Esq. has helped thousands of workers in North Carolina and in Virginia get just recoveries for a wide variety of workplace injuries. He’s been fighting for employees for more than 31 years. He has the experience and resources to fully document your medical expenses, your lost wages, and any other related work injury costs. He’ll fight to get you a strong recovery. To schedule an appointment with a respected work injury lawyer, is please phone Joe Miller, Esq., at 888-667-8295. or fill out my online contact form

Wounds, Bruises, and Workers Compensation Claims

Posted on Monday, June 22nd, 2020 at 8:46 am    

The Occupational Injury and Illness Classification System (OIICS) of the Bureau of Labor Statistics classifies surface wounds and bruises according to several categories. Surface wounds are a form of traumatic bruise or injury that occur on the surface of the body and “generally do not involve open wounds.” “Generally, a traumatic injury or disorder is the result of a single incident, event, or exposure over the course of a single shift.” 

The OIICS guide is a useful resource for classifying a wide range of workplaces injuries and diseases. Cases that are categorized as traumatic bruises or injuries don’t need to be “consistent with the Occupational Safety and Health Administration (OSHA) recordkeeping definition of an injury or whether the employer reported the case as an injury or illness on the OSHA log.”

Some surface wounds such as mosquito bites and foreign object in the eye are categorized elsewhere in the OICCS. The subcategories for surface wounds are the following:

 

  • Unspecified wounds and bruises. 

 

  • Abrasions and scratches. This group includes “traumatic injuries where the skin, mucous membrane, or superficial epithelium have been removed or marked, usually as a result of rubbing, scratching, or scraping.” 
  • Blisters. This category includes “the localized collection of fluid in the epidermis associated with friction or impact.” The category includes blood blisters and friction blisters but doesn’t’ include blisters associated with burns which are categorized elsewhere. 
  • Bruises and contusions. This category includes “injuries that produce capillary hemorrhaging with the skin remaining intact.” Examples include bruises and contusions (with or without swelling), hematomas, “black eye, ecchymosis, hyphema, and contusions resulting from nonvenomous animal bites, bruised bones.” It doesn’t include concussions, non-traumatic and traumatic cerebral hemorrhages, and other related injuries which are categorized elsewhere.
  • Multiple surface wounds band bruises. This category includes multiple injuries and disorders of equal severity.
  • Surface wounds and bruises, n.e.c. This category includes mosquito bites and other minor nonvenomous insect bites

Other wound injuries may be categorized as

  • Traumatic injuries to bones, nerves, spinal cord
  • Traumatic injuries to muscles, tendons, ligaments, joints, etc.
  • Open wounds
  • Burns and corrosions
  • Intracranial injuries
  • Effects of environmental conditions 
  • Multiple traumatic injuries and disorders
  • Other traumatic injuries and disorders 

Many workers in a variety of industries suffer surface wounds and bruises. While surface wounds and bruises may not appear serious on first inspection, they can become serious if not treated properly. Surface wounds and bruises can cause a worker to miss significant time from work.

What causes surface wounds?

Surface wounds and bruises are common work injuries. If they result from a workplace accident, an employee has the right to seek workers’ compensation benefits, in North Carolina and in Virginia. These benefits include ER care, follow-up medical care, and generally 2/3 of any income loss because the employee can’t do his/her job. Some workers may need to treat with a plastic surgeon. If the abrasions or wounds become infected or cause other related harm, the worker may need to treat with pain management doctors, infectious disease specialists,  nerve and ligament specialists, and other specialists. Workers may also need to treat with psychologists or mental health professionals if the wounds lead to scars or to unsightly physical damage which, in turn, cause emotional harm.

Some of the causes of surface wounds, bruises, abrasions, and related injuries include:

  • Car, truck, or vehicle accidents
  • Accidents due to handling or mishandling of machines, tools, and sharp objects. This includes machines that don’t have proper guards, tools, and machines that aren’t used properly, or if the safety equipment is faulty.
  • Accidents that cause a worker to slip and fall – causing the worker to hit/her head or to injury their arms or legs in an attempt to catch or reduce the impact of the fall

What jobs have a higher danger of causing surface wounds or bruises?

Some of the job categories that have a higher risk for traumatic injuries such as surface wounds or bruises include:

  • Police and security work
  • Firefighting
  • First responders and EMT responders
  • Workers in any type of construction trade
  • Agricultural workers
  • Workers who work in the oil and gas energy sector
  • Mining workers
  • Worker who work on assembly lines or work in manufacturing

Types of injuries that wounds and bruises may bring about or cause

Employees who suffer a wound or bruise may:

  • Develop infections
  • Suffer from internal bleeding
  • Go into shock
  • Develop a fever
  • Have nausea
  • Have some type of skin loss that will need to be treated
  • Have permanent scarring

Your rights if you have surface wounds or bruises

Generally, you must notify your employer or manager about any injuries of any kind as soon as possible. Workers with surface wounds and bruises normally begin their medical care by going to the local emergency room or by going to their family doctor. Whether the worker can return to work may depend on the type of job the employee has. Workers who have jobs that require a fair amount of physical labor may not be able to return to work promptly. Workers who have desk jobs often can return to work unless the wound prevents them from using their hands or eyes. A key factor is whether any complications result.

In all workers’ compensation cases, there is no requirement to prove the employer was at fault for the  injuries. Fault is not a factor in workers’ compensation cases. As long the accident happened at work, happened to an employee during the course of the employee’s job, and the accident caused the injuries – then they employee has the right to file a state work injury claim.

Scarring or Disfigurement

One thing that is important to note is that workers compensation does not compensate injured workers for pain and suffering. Compensation is generally limited to the effect the work injuries have on the injured worker’s ability to work and the medical bills. There may also be some recovery for permanent impairment in a particular body part. 

 One exception to those limits is if there is visible, permanent scarring on disfigurement on a body part that the injured worker hurt in the accident. It must be a body part that the injured worker is not otherwise claiming for impairment. For instance, if there is severe scarring from lumbar (back) surgery, and the injured worker wants to claim a permanent impairment in the lumbar spine in North Carolina (spine impairment is not available in Virginia), he or she would not also be able to claim scarring or disfigurement due to the surgical scars. 

What are the amounts that are available to be recovered? According to N.C.G.S. 97-31 (21) For serious facial scarring or disfigurement, an injured worker can recover up to $20,000.00.  For serious disfigurement to any other part of the body, up to $10,000.00. 

This may not seem like much, but it must be remembered that the workers compensation statutes are primarily concerned with how an injury affects one’s ability to work. So if someone is so severely injured that he or she is unable to return to work, that injured worker would be entitled to up to 500 weeks of benefits at 2/3rds of their average weekly wage, until he or she was able to return to work. 

If the injuries are sufficiently severe, and involve certain categories of injuries that prevent return to any gainful employment, depending on the nature of those injuries, the employee may qualify for lifetime weekly benefits. Even if the employee did not suffer injuries in those categories, if the employee can prove that the work injury has caused a total loos of wage-earning capacity, then after 425 weeks of benefits, that employee may apply for extended benefits, which is some cases may result in lifetime compensation. 

North Carolina workers’ compensation lawyer Joe Miller Esq. works with your doctors and independent doctors to help document your injuries. He fights to get full compensation for all medical expenses for all workplace injuries and illnesses. He also fights to get workers the amount they justly deserve for lost income, for vocational rehabilitation costs, and for any incidental expense. For help with any workers’ compensation claim, call North Carolina and Virginia lawyer Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to speak with a skilled work injury lawyer.

Warehouse injuries and Workers Compensation – Part Two

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 )

Slip, trip, and fall injuries

Warehouse workers can slip (or trip) and fall for many reasons including the following:

  • Uneven surfaces—this is particularly common when loading or unloading trucks, where there may be a significant gap or difference in height between the loading dock and inside of the truck. 
  • Surfaces that are slippery due to water, snow, oil, ice, and other weather conditions and products. Metal surfaces can also be very slippery.
  • Slips because the worker didn’t have the right footwear for the job
  • Loose inventory or tools
  • Wires, cords, and other long thin materials that aren’t properly placed
  • Broken tiles
  • Loose railings
  • Torn carpets and rugs
  • Poor lighting preventing the worker from seeing properly
  • Falls from ladders, scaffolds or other products that lift a worker above the ground
  • Stairs where the non-slip tread has worn off from overuse. 

Workers who slip for any reason or stumble for any reason can suffer a range of injuries including:

Injuries due to truck accidents

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.

Injuries due to chemicals and hazardous materials

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.

Treatment by in-house clinics – an example

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. 

Treatment by outside physicians

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:

  • The worker’s family doctor
  • A pain management physician who may prescribe medications or treatments (such as steroid injections) for their pain
  • Neurologists for any type of nerve damage
  • Orthopedists for any bone fractures or displacements
  • Physical therapists
  • Vocational therapists
  • Occupational therapists
  • Many other healthcare providers

Workers who suffer emotional injuries along with their physical injuries may also need to treat with psychologists and psychiatrists.

Steps warehouse workers should take if they are injured at work

Any North Carolina or Virginia warehouse worker who is injured on the job:

  • Has the right to seek immediate medical attention. Typically, this means seeing a company health care provider, nurse or doctor if there is one on staff. In the most serious cases, cases, particular those who must undergo emergency surgery, it means treating with whatever surgeon operated on you in the hospital. In less severe cases, it should mean choosing a doctor from a three-doctor panel
  • Should inform their supervisor of the accident and their injuries. Employees are required to inform their supervisor of any accident or injuries due to an accident as promptly as possible
  • File a workers’ compensation case. Employees shouldn’t rely on the warehouse company to do right by them – even when they say they’ll pay for your medical bills. The best course of action after any injury is to make an appointment with an experienced workers’ compensation lawyer. The lawyer will help you file a claim form. He’ll help you see the right doctors for your injuries. A skilled North Carolina or Virginia warehouse lawyer will also help you obtain work loss benefits, help ensure that you’re not forced back to work too soon, explain and demand your right to have all your medical expenses explained, and guide you through each phase of the workers’ compensation process.

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 888-694-1671 or fill out my online contact form to schedule an appointment. Cases are handled on a contingency fee basis.

Warehouse injuries and Workers Compensation – Part One

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). 

How do warehouse injuries occur?

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.

Forklift injures

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:

  • The Occupational Safety Health Administration (OSHA) estimates that each year 35,000 serious forklift injuries occur and 62,000 non-serious injuries occur.
  • Untrained forklift operators are as dangers as unlicensed car and truck drivers.
  • OSHA requires that workers have written training and practical hands-on training.
  • Forklift operators should inspect their truck before each time they use it. These checks include such parts as the tires, seat belts, horns, backup warnings, and other forklift features
  • There are crucial differences between driving a forklift and a standard four-wheel vehicle including:
    • The driver is not fully enclosed
    • The weights are much different
    • Forklifts are designed to move slower than cars
    • They have 3-point suspension
    • They have a tight turning radius
    • Spotters should be considered for backup operations
  • The center of gravity of the truck is different than for a vehicle. Forklifts are more prone to tip over – whether they are loaded or not loaded. For this reason, loads should be secured. Loads should be kept “low to the ground during operation.” Forklifts that tip over are a leading cause of forklift injuries. We have represented clients with very serious injuries who were ejected from a forklift when a heavy load caused the forklift to rise and then abruptly fall when the load abruptly fell off the forks. 
  • Operators should know the load basics. “Move squarely in front of the load and move the forks apart as far as possible before driving them under the load. Make sure to not overload and that the load is centered.”

Overexertion injuries.

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:

  • Providing training on lifting and other physical techniques
  • Allowing for reasonable breaks
  • Shifting the workers assignments
  • Enlisting the aid of other workers for very heavy objects

Injuries at the loading dock

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. 

Being struck by an object

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.

Being caught between objects

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 888-694-1671, or use our online contact form to schedule a free consultation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We hope this article has been helpful. 

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

Attorney Joe Miller has been representing injured workers in Virginia and North Carolina for over 32 years. If you have any questions about a worker’s compensation injury incurred by you or a loved one, please do not hesitate to reach out to us at 888-694-1671 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. 

The Details Behind the JLARC study on Virginia Firefighters and Presumptions

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:

  • Current presumptions. 40 states have presumptions for firefighting and cancer. 34 states have presumptions for firefighting and heart disease. 15 states have presumptions for law enforcement and heart disease.
  • Virginia’s current presumptions for first responders:
    • Cancer. There are presumptions for breast, leukemia, ovarian, pancreatic, prostate, rectal, and throat cancer
    • There are proposed exemptions, as of 2019, for brain cancer, colon cancer, and testicular cancer
    • There was another proposed exemption for post-traumatic stress syndrome (PTSD)
    • Cardiovascular disease
    • Respiratory disease. Workers generally don’t’ seek to establish this presumption.
    • Infectious disease. Workers generally don’t seek to establish this presumption.

83 studies on cancer, heart disease, respiratory disease, and PTSD among firefighters and police officers were analyzed and evaluated for quality and bias.

The findings of the John Hopkins University study

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.

  • Firefighters are exposed to carcinogens. Firefighters can’t fully avoid exposure to these carcinogens – even when they are wearing protective gear.
  • Every type of fire releases toxic and carcinogenic substance
  • To what extent firefighters are exposed to these carcinogens depends on many factors. The main exposure routes are inhaling these toxins and skin absorption of the carcinogens.

The study found that the firefighters had an increased risk of the following types of cancer:

  • Prostate cancer
  • Throat cancer
  • Brain cancer (proposed in 2019)
  • Leukemia
  • Rectal cancer
  • Testicular cancer (proposed in 2019)

The Johns Hopkins study did not have enough evidence on the following cancer types:

  • Colon cancer (proposed in 2019)
  • Pancreatic cancer
  • Breast cancer

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. 

Cancers which should be added to the firefighter presumption lists

The JLARC report, based on the John Hopkins study, recommended that worker’s compensation laws in Virginia create presumptions for the following cancer types:

  • Brain cancer
  • Testicular cancer

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.

Recommendations by the JLARC regarding current cancer presumptions for firefighters

Current cancer presumptions which should be maintained or could be subject to a sunset provision depended on the following:

  • “Better data on firefighting-cancer associations will be available after new National Firefighter Registry is fully implemented.”
  • “The General Assembly could maintain all current cancer presumptions in statute, including those with less scientific evidence, but add a sunset provision. Cancers with weaker scientific evidence to support occupation-disease associations could be removed if new scientific evidence does not increase support for including them.”

Costs for adding the three extra cancer presumptions – brain cancer, testicular cancer, and colon cancer

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.

  • Insurance premiums for workers’ compensation for firefighters are expected to rise $269 in the first year.
  • The insurance premium for the Line of Duty Act (LODA) are expected to rise $61 “per FTE in the first year.”

“Some additional liability would be created for firefighters no longer working with an employer and still within statute of limitations.”

Additional JLARC firefighting presumptions

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:

  • 13 (65%) did not prove toxic exposure or a disability resulting from the cancer and denied benefits
  • 4 (20%) were denied benefits for other reasons
  • 4 (20%) did meet the occupational illness requirements and were awarded benefits

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:

  • “Documenting exposure to carcinogens is extremely difficult and costly. Virginia firefighters are not equipped with technology to measure exposure” because the technology is expensive and requires expertise.
  • The strict requirements are “counter to the purpose of presumption, which is to relieve firefighters of need to prove work caused their disease.”

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 888-694-1671 or use my online contact form to speak with a strong advocate.

What Happens if I get the Corona Virus Because of my Job?

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.

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