Posted on Wednesday, January 8th, 2020 at 9:52 am
OCCUPATIONAL DISEASE: PRESUMPTIONS FOR FIREFIGHTERS, POLICE, AND OTHER FIRST RESPONDERS
Normally, injuries and accidents that occur under Virginia Workers Compensation must consist of a specific traumatic event that caused a sudden anatomical change in the body to the injured worker; however, there are a whole class of cases that do not follow that approach and these are cases which involve an occupational disease. Sometimes these can be hard to prove, but the Virginia legislature has made it easier for police, firefighters, sheriffs, and other first responders and public law enforcement officers to prove occupational disease claims.
Without getting into all the specifics of proving an occupational disease, which is covered in other articles, suffice it to say that an occupational disease means a disease arising out of, and in the course of employment, but not including an ordinary disease of life to which the public is equally exposed.
What this definition means is the oftentimes, even though someone may be suffering from a disease that was directly caused by exposure for instance, to hazardous chemicals on their job, if it is the kind of disease not specifically recognized as arising directly out of the employment, and therefore an ordinary disease that the public may also get, such as a form of cancer, then the disease is not going to be recognized as an occupational disease. It will be considered an ordinary disease of life and the standards of proof for that are much higher than for a regular occupational disease.
The good news is that the Virginia legislature carved out an exception to this rule for police, firefighters, sheriffs, and other first responders and public law enforcement officers.
What this law says is that if you are a firefighter, police officer, or other first responder, then for certain diseases, such as respiratory diseases, hypertension or heart diseases, and certain types of cancers, it is to be presumed that the disease in question is in fact an occupational disease suffered in the line of duty.
Now this presumption can be overcome by the defense if, for instance, they can prove that the disease came about for exposure to something completely unrelated to work, and that the first responder was not in a position to be exposed to anything that might give rise to the disease in question.
Unfortunately, insofar as firefighters are concerned, the law as it stands contains some barriers and defects that make it hard to prove some occupational diseases.
The statute lists a number of presumptions for cancers that firefighters and other first responders are entitled to and they are for the cancers of leukemia, pancreatic, prostate, rectal, throat, ovarian, or breast cancer. The problem is that the law as it stands now also requires that the International Agency for Research on Cancer (IARC) recite in their listings that whatever the injured worker was exposed or came into contact with to during their job actually causes, or may cause the type of cancer the injured worker is suffering from. They also require that the first responder with one of these types of cancer have completed 12 years of continuous service.
The good news is that according to the case law, the injured worker need only prove one instance of exposure to the toxic chemical during his or her career that may cause cancer as identified by IARC.
The bad news is that at least one form of cancer on the list specifically has no known cause and that is pancreatic cancer.
Pancreatic cancer is one of the few cancers where medical science currently simply has no idea as to the cause. Apparently, the only thing that might contribute to it is cigarette smoke.
Because of this, many agree that the law as currently written, in this regard, for lack of a better word, is ridiculous. The current law in Virginia actually says that pancreatic cancer is one of the presumptive types of cancer that is considered to be contracted in the line of duty, but at the same time, the law also says you have to prove there was exposure to something that might cause it, and as we just said, nothing is known to do that except possibly cigarette smoke. So basically, the Legislature has drafted a law that—at least with respect to pancreatic cancer—is completely useless.
Moreover, a State Review Board has also noted that the law is lacking as it currently stands. The Joint Legislative Review Commission (JLARC) Audit Report of the Virginia Workers Compensation Commission that was released on Monday, December 17, 2019 says on page 3, in the headline: “Requirements to establish cancer presumptions are unreasonably burdensome and not supported by science.”
The JLARC specifically talks about firefighter benefits and how many claims are denied because the firefighter failed to prove proper exposure to the carcinogen that caused his or her type of cancer. The JLARC then suggests that all an injured firefighter should have to prove is that he or she fought fires and was exposed to smoke. They say that should be sufficient, given the toxic soup of chemicals that any scientist and industrial hygienist knows is released by any house or industrial fire. I certainly could not agree more.
We rely on our first responders to protect us. They put their lives on the line for us every day. Can we not make it as easy as possible for them to make a claim in the event they suffer because of the years of dedicated service to this cause?
Hopefully, plans are afoot in Richmond to change these laws so this never happens to any firefighters or other first responders who in the future develop cancer or any of the other diseases given a presumption in the law.
In the meantime, if you have been advised that you are suffering from an occupational disease, please do not wait to contact a worker’s compensation lawyer to assist you. You only have two years from the date that the diagnosis was first communicated to you by a physician to file a claim form with the Virginia Workers Compensation Commission.
If you have been exposed to toxic chemicals in your line of work, and your doctor supports that your disease came from that exposure, and you’re a member of a Union, know that your Union should be able to steer you in the direction of an expert such as an industrial hygienist, or other such expert, who can assist in proving your exposure to the relevant chemicals in your claim. You may very well need his or her testimony in order to win.
Joe Miller has been representing victims of on-the-job injuries and occupational disease for over 30 years. If you or a loved one has been injured on the job or suffered an occupational disease, please do not hesitate to call us toll free at 888-667-8295. or complete our online contact form
Posted on Saturday, January 4th, 2020 at 3:49 pm
Truck drivers are prone to many different types of injuries due to being on the road for long stretches of time and the heaviness of the semi, rig, or whatever commercial truck they’re driving. Often drivers are asked to help out with loading and unloading trucks. Many drivers are involved in truck driving accidents. According to the Insurance Institute for Highway Safety, 4,136 people died in trucking accidents in 2018.
The Federal Motor Carrier Safety Administration regulates the hours truck drivers can be on the road because of concerns that tired drivers are likely to get into a truck accident. Drivers who carry any type of cargo must follow the following regulations:
Truck drivers need to do more than just drive long distances. Some other truck safety concerns include:
Trucks with heavy loads or shifting loads can be especially hard to control
Truck drivers are most prone to musculoskeletal disorders of the back, neck, and shoulders. They are prone to falls which can cause broken bones and soft tissue injuries. Some falls can result in spinal cord damage or a traumatic brain injury. Truck drivers who are hurt in a motor vehicle accident can die, suffer permanent disabling injuries, including but not limited to severe burns, as well as other injuries that can take a long time to heal. Truck drivers who work with forklifts, especially the Moffett types that are carried on the back of a flat-bed truck, run the risk of a loss of limb and many other serious injuries.
Truck drivers who are injured on the job are entitled to medical payments for any necessary surgeries, doctor visits, physical and occupational therapy, psychological care if needed, the cost of medications, and the expense of any medical devices.
Injured workers in North Carolina and in Virginia are generally entitled to 2/3rds of their lost wages until they are released to return to work by their doctor. This can happen either before or after an injured worker reaches Maximum Medical Improvement (MMI). Workers who reach MMI who have not returned to work will be evaluated to:
Employee versus Independent contractor
A common issue in truck driving cases is whether the driver was an employee or an independent contractor. Generally, only employees are entitled to workers’ compensation benefits. As a general rule, the test in determining the status of a worker is whether the company or person that hired the worker had control over how and when the driver performs his/her duties. Drivers who only work for one company, are paid a W-2, are required to wear a company uniform, and drive trucks owned by the hiring company or person are usually going to be classified as an employee and not as an independent contractor.
On the other hand, truckers who own their own trucks and haul loads for numerous companies are generally going to be considered to be Independent Contractors.
Virginia and North Carolina Workers’ Compensation Attorney Joe Miller Esq. works with truck drivers and all types of workers to help them get just recoveries. He’s helped thousands of North Carolina and Virginia workers get the full benefits they deserve. He works with your doctors and independent physicians to determine the severity of your injuries and when and if you can return to work. To schedule an appointment, call lawyer Joe Miller at 888-667-8295. or complete my online contact form
Posted on Thursday, January 2nd, 2020 at 3:41 pm
As North Carolina and Virginia get ready for lower temperatures, it helps to consider some of the causes of cold weather injuries. While many conditions are more severe in northern states; southern climates do experience snow, ice, frost, and winter chills. The effects of cold weather are most prominent among anyone who works outdoors – such as construction workers and agricultural workers. Other workers who are in danger of cold weather injuries include:
The good news for anyone who works in cold weather or is affected by cold weather is that that as long as the accident occurred during work, the employee should be able to file a work injury claim – without the need to prove an employer was at fault for not salting the ice, providing warning signs, or taking other precautions.
Some of the many different types of winter workplace injuries that occur during cold weather are:
Employers should take extra precautions to:
Hypothermia is a major risk for workers who work outside or who work inside where there isn’t a proper amount of insulation or heat. Often, it’s the inside workers who are at most risk for hypothermia because outside workers take steps to prepare for working in the cold starting with making sure they are properly dressed.
Hypothermia is the falling of the body’s temperature below 95 degrees, 3.6 degrees below the body’s normal temperature of 98.6 degrees. Hypothermia, if not treated promptly, can be threaten a worker’s life. The disorder can cause cardiac failure and breathing difficulties. Survivors may suffer gangrene and frostbite – especially in their fingers and toes.
Some of the symptoms of hypothermia include:
Some of the key risk factors for hypothermia in workers include:
Wind is an extreme risk factor for hypothermia because it lowers the effective temperature and can remove the warm air at the skin level. Areas that aren’t properly protected are especially vulnerable to losing heat. Contact with ice and other cold surfaces can also increase the risk of hypothermia.
Other risk factors for hypothermia include drinking alcohol, the use of drugs, some medications, the age of the worker, and how tired the worker is. Workers who are exposed to cold should dress in layers, keep dry, and pay special attention to keeping their head, hands, and face warm. Employers should allow for extra break times in cold weather. Employers should also rotate their work force more often so no worker is in the cold for too long.
Trench foot. This condition occurs when the foot is wet. To stop any heat loss, the foot’s blood vessels constrict, which can cause circulation to be shut down. If not treated correctly and in a timely manner, the constrictions can cause tissue to die. Some of the symptoms of trench foot include blisters, redness of the skin, swelling, and numbness.
Frostbite. The disorder occurs when the skin and the tissues underneath the skin begin to freeze. Usually, frostbite occurs in the toes and the fingers – so that the body can keep the vital organs working. Any worker whose skin turns white or gray, whose skin becomes hard, or who develops blisters or numbness should be treated by medical professionals immediately.
Workers who suffer hypothermia, trench foot, frostbite due to direct exposure to the cold or suffer broken bones and other injuries due to workplace accidents have the right to file a work injury claim. The claim should include:
North Carolina and Virginia workers’ compensation Lawyer Joe Miller Esq. has been fighting for injured employees for more than a quarter of a century. He’ll fight the efforts of the insurance company to deny or limit your claim. He’ll contest every attempt to force you back to work before you’re ready. His priority is helping you get all the medical benefits and lost wages the state laws permit. To review your rights and to speak with a strong advocate, call attorney Joe Miller at 888-667-8295. or complete my online contact form
Posted on Tuesday, December 17th, 2019 at 1:37 pm
Workers Compensation Lawyer Joe Miller of the Work Injury Center explains the importance of giving a good, consistent history of your work accident to all of your health care providers:
Posted on Sunday, December 15th, 2019 at 1:35 pm
Workers Compensation Attorney Joe Miller discusses what to expect after your settlement demand is sent off to the insurance company:
Posted on Friday, December 13th, 2019 at 1:33 pm
Workers Comp Lawyer Joe Miller explains three of the most common misconceptions surrounding workers compensation:
Posted on Wednesday, December 11th, 2019 at 1:33 pm
Workers Compensation Lawyer Joe Miller talks about the negative consequences to your case if you miss your doctor’s appointments or physical therapy appointments when you are under an Award in Virginia or an Accepted Claim in North Carolina.
Posted on Tuesday, November 5th, 2019 at 10:22 am
It’s tempting for many North Carolina and Virginia workers to think that their employer and the employer’s insurance company are on their side – especially when they’re paying you 2/3rds of your lost wages and paying for your medical bills. While this may seem nice, it can hurt your case in many ways. The best course of action is to consult with an experienced work injury lawyer who will protect your rights by filing a formal workers’ compensation claim on your behalf. The bottom line is that if you are not under an Award in Virginia or you do not have an Accepted Claim in North Carolina, your benefits are in serious jeopardy.
Some of the reasons workers need to file a formal claim, instead of relying on the informal kindness of their employer are:
A Form 60 is Filed by the Carrier if they are accepting the claim.
A Form 63 is filed by the Carrier is they are conditionally accepting the claim (i.e. they need to investigate a few things first)
A Form 61 is filed by the Carrier if they are denying the claim.
Employees should understand that there is no expense to file a claim but, as mentioned, there are time limits – generally one day less than two years from the date of the accident. These limits can be extended in some cases if the employee is receiving benefits, but a competent worker’s comp attorney should be consulted to see if you are being protected appropriately. When in doubt, FILE.
Virginia and North Workers’ Compensation Attorney Joe Miller Esq. has the experience and skills to help you get your full benefits and help you fight attempts by the employer to terminate or reduce your benefits. He has helped thousands of workers get strong recoveries and has been representing injured and ill workers for more than a quarter of a century. To speak with a persuasive workers’ compensation attorney, call lawyer Joe Miller at 888-694-1671. or use my contact form to schedule an appointment.
Posted on Saturday, November 2nd, 2019 at 10:20 am
Injured works and ill workers in North Carolina and Virginia are entitled to have all their reasonable and necessary medical expenses paid. This includes more than just paying hospitals for surgeries and hospital visits, doctors for their reviews and treatments, and therapists for their continual care. It includes more than the cost for medical devices and prescriptions.
Workers also have the right to have the insurance company for the employer pay for the cost to get to the hospitals and their doctors. This is especially fair because the employer chooses the doctors patients can treat with and the choice is what’s best for the employer, not what’s best or convenient for the employee.
In both North Carolina and Virginia, the mileage and transportation costs include the cost to pay for cabs and rideshare services, public transportation, parking lot fees, and tolls. For employees who drive their car to the medical provider’s offices, they are entitled to a mileage allowance.
Reimbursement costs don’t include the cost of gasoline to get to these medical offices and they don’t cover trips to the pharmacy. Pharmacy costs generally aren’t covered because many workers and doctors can use mail pharmacy services.
According to the North Carolina Industrial Commission rules, mileage reimbursement is allowed for trips 20 miles or more (round trip – so 10 miles each way) as follows:
In North Carolina, this is done through a Form 25T. If employees travel 20 miles or more round trip for medical treatment in workers’ compensation cases, they are entitled to collect for mileage at the rate of 25 cents a mile for travel prior to June 1, 2000;
The IRS sets the reimbursement rates so the amount workers can be reimbursed is the same in Virginia as it is for North Carolina. As of this writing, it is .555 cents per mile. In Virginia, there is no prescribed form to recover mileage, but it should be done clearly and legibly, with each date of service listed as well as the mileage roundtrip for each date.
In addition to transportation expenses, in North Carolina: “Employees are entitled to lodging and meal expenses, at the rate established for state employees by the North Carolina Director of Budget, when it is medically necessary that the employee stay overnight at a location away from the employee’s usual place of residence.”
Your North Carolina and Virginia workers’ compensation lawyer will help you obtain and fill out the correct reimbursement forms. It’s critical that you document all your travel expenses. This means getting receipts where you can and keeping a travel and mileage journal.
Posted on Wednesday, October 30th, 2019 at 10:19 am
Many older workers who are injured on the job or suffer an occupational illness are entitled to both Medicare and Worker’s Compensation benefits.
There are two general issues involving Medicare. The first involves the regular medical submissions from doctors and other health providers while the employee is getting treatments so they can return to work – or know if they can’t return to work. These payments are paid until the worker reaches maximum medial improvement – the point at which future medical treatments won’t help the worker’s health improve.
The second issue involves the settlement of the claim after the worker has reached maximum medical improvement. In a settlement, funds need to be allocated ahead of time, often before the worker is eligible for Medicare, to account for what Medicare will pay and what workers’ compensation will pay. This is discussed in several places on this website and is known as a Medicare Set-Aside (MSA).
Workers’ compensation is managed by the state where you work. Medicare is a federal program. Generally, the bills for work injuries are submitted to the insurance company for your employer. If they refuse to the pay the bill with 120 days, then Medicare should pay the bill – conditionally. This means Medicare pays the bill – but reserves the right to be reimbursed if it is agreed that the workers’ comp carrier should have paid the bill or there is a ruling that they should have paid the bill.
The medical bill should be something that Medicare covers. Complicating matters is that Medicare normally only pays 80% of hospital and physician services. Supplemental insurance pays the other 20% if the worker has supplemental insurance. The issues get more complex if the worker has reached the age of Medicare eligibility before he/she has reached maximum medical improvement.
A Workers’ Compensation Medicare Set-Aside Agreement is used to pay future bills in a settlement. Typically, before any long-term settlement is reached, the lawyer for the employer will contact a company who specializes in estimating the future medical costs of the injured worker in relation to their work injuries. That company will usually then prepare a detailed Medicare Set-Aside report which sets forth, in great detail, the estimated amounts of the injured worker’s future treatment for his or her work injuries.
If the injured worker is a current Medicare recipient, the employer’s attorney must then submit that report to Medicare’s CMS Office to get approval for any funds that are set aside to pay Medicare in the future. This is money that is set aside is first used to pay the future medical expenses in relation to the employee’s work injuries. Once approved by CMS, the settlement can then proceed.
Only when the set-aside amount is used up can the worker request that Medicare pay for any other future medical bills. To ensure that Medicare isn’t paying more than it should, if the worker is a current Medicare recipient, he or she must obtain the OK from Medicare for set-aside amount. Sometimes the set-Aside arrangement will be lump sum, other times it will be an initial seed amount, followed by yearly payments for a set number of years to the worker. In addition, sometimes the Medicare money is “self-administered” by the employee, and other times, it is administered by a Medical Management Company.
If the injured worker is not a current Medicare recipient, but the settlement is over a certain amount and the worker has applied for Social Security Disability (SSDI), it is recommended that a Medicare Set Aside be done privately by the employee as part of settlement, and that the amounts set aside be recited in the settlement agreement. This is to make sure Medicare’s interests are protected, because a worker who is deemed disabled by the Social Security Administration will automatically qualify for Medicare at 24 months from his or her date of disability. Although such arrangements for non-Medicare recipients do not have to be reviewed in advance by Medicare, they are advisable to avoid any problems down the road.
The bottom line is that the law wants to prevent “double-dipping.” Medicare does not want to see a worker receiving a settlement which includes money for future medicals for his or her injuries, and then see that same worker turn around and hit up Medicare for those same bills.
Experienced workers’ compensation lawyers know how to review Medicare-Set Aside plans to help determine what your future medical needs such as continued therapy, medication, or diagnostic procedures a will be. Once a settlement is made, the employee can’t go back and ask for more. That being said, the beauty of a formal Medicare Set-Aside is that once the money is used up, the worker can then turn to Medicare to cover his or her treatment related to the work injuries.
Virginia and North Workers’ Compensation Attorney Joe Miller Esq. knows his way around the rules pertaining to authorized physicians as well as Medicare. He’ll help you come up with legitimate strategies to find a solution if the company doctors are more interested in rushing you back to work than in treating your injuries or illnesses. He’s helped thousands of employees get the full workers’ compensation awards and settlements they deserve. For help now, call lawyer Joe Miller at 888-694-1671. or fill out my contact form to make an appointment.