Always Get A Work Note

Posted on Wednesday, February 3rd, 2021 at 3:55 pm    

Virginia and North Carolina Workers Compensation Attorney Joe Miller explains why it is so critical to your case to obtain a current work note or disability slip after each and every appointment with your primary, authorized treating physician. Failure to present valid work notes at your hearing could mean you will be unable to prove you are entitled to weekly checks.

Hand Injuries and Workers’ Compensation

Posted on Friday, January 8th, 2021 at 12:17 pm    

Hand injuries are common in many different types of jobs. Workers who do outside labor such as construction or agricultural work often suffer injuries due to the machines/tools they work with and thy types of tasks they do. Workers who work inside can suffer injuries due to repetitive use. Workers in almost every field from industrial workers to healthcare workers at some point in their career are likely to injure their hand – often severely enough that they can’t work until (and if) their hand mends.

Some of the machines that can cause severe hand injuries include saws, hammers, and assembly equipment.

Types of hand injuries

Some of the common types of hand injuries that occur during work include:

  • Carpal tunnel syndrome. This injury is a repetitive stress injury that we’ve written about before – Carpal Tunnel Syndrome and Workers Compensation ( Carpal tunnel syndrome normally affects the wrist and the hand. Many officer workers and restaurant workers (such as waitresses) are likely to develop carpal tunnel syndrome.
  • Burn injuries. Workers, such as kitchen workers and restaurant workers, are regularly exposed to flames, steam, boiling liquids, and other terms of thermal burns. Electric burns can occur when an electrical current runs through an electrician’s hand. Chemical burns can occur when industrial, construction, agricultural, or other workers handle hazardous substances which spill on or seep into the skin of the hands as the worker uses their hands to manipulate the or use the chemicals.
  • Fractures and other types of blunt trauma injuries bones. Orthopedists regularly need to provide medical care (including surgeries and setting the fractures) for workers who break a finger of any one of the 27 bones in the human hand. Breaks or crushing injuries can occur if a heavy object falls on the worker’s hands, if the worker’s hands are pinned between two objects, or due to improper use of tools and machines.
  • Lacerations. Cuts to the hand can be due to working with any type of sharp object, when glass sprays into their hands during a collision, or for many other reasons.
  • Punctures. Doctors, nurses, and anyone who works with a sharp object (such as carpenters who work with hammers and nails on a regular basis) may suffer a puncture to the skin of the hand – when the sharp object penetrates their skin.

Other hands injuries include rashes and irritations of the skin

According to MedExpress:

  • 44% of hand injuries involve lacerations and cuts – accounting for over 60,000 injuries in 2017. Many victims require stitches and other treatments.
  • “Crushes caused almost 27,000 hand injuries in 2017, making them the third most common cause of hand injuries.”
  • Fractures, sprains, and tears “accounted for 21 percent of all reported workplace hand injuries in 2017.”

Employer safety suggestions to help minimize the risk of hand injuries

There is no requirement that an injured worker prove that an employer was negligent or that the employer failed to follow federal, state, or local safety protocols. If you are injured at work, you have the right to seek work loss and medical benefits – whether the employer was at fault or wasn’t at fault.

Still, nobody wants to lose time from work and seek medical help if they can avoid it. Some of the many ways employers can help ensure the safety of their employees – when it comes to avoiding hand injuries include:

  • Providing quality safety equipment. Gloves with the proper amount of insulation (or gloves made out of the proper materials such as latex) can help reduce the risk of certain types of hand injuries – such as lacerations, punctures, and some types of burn injuries. Employers should review what types of gloves could help workers who regularly are in danger of any type of hand injury.
  • Educating the worker about safety issues. Often, education is needed for workers who work with specific types of machinery or equipment. These courses can help explain the dangers of each type of machine or tool. The courses can explain when their hands are in the most danger and what steps can be taken to reduce those risks. Workers should be taught which chemicals can cause severe burn injuries, for example, or how to properly work with certain types of sharp instruments.
  • Explaining the importance of communication. Many hand injuries could be avoided if supervisors and co-workers communicate with you – so you know when to get out of the way, when to stop working so they can work, and when other workplace factors increase the risks of hand injuries.

Workers’ Compensation for Hand Injuries

All workers who suffer hand injuries are entitled to work loss benefits if you injury you hand due to a workplace accident or due to an occupational illnesses. Your North Carolina or Virginia workers’ compensation lawyer can explain when you can file a claim for a repetitive stress injury to your hand.

Temporary work loss benefits for hand injuries generally include payment of all your medical bills and about 2/3 of your average weekly income while you can’t work.

If you can’t use your hand (or any fingers or your thumb) at all, or in part, after you’ve reached the point of maximum medical improvement (no additional medical care is likely to improve your hand) – you may be entitled to permanent disability benefits according to North Carolina or Virginia law. For example, if your hand is amputated, you can seek permanent disability benefits in both states.

An experienced work injury will work with you and your doctors to help ensure that the employer doesn’t force you back to work before you can do your job.

Virtually every worker needs functioning hands in order to do their job. Our experienced North Carolina and Virginia work injury lawyers have been fighting for employees for more than 25 years. We’ll explain your rights and fight to get you all the compensation and medical care you deserve. To reach lawyer Joe Miller, Esq., call me at 888-667-8295. or fill out my online contact form to schedule an appointment. Workers now can also complete our New Electronic Case Review. It’s a new way of communicating with clients that we’re offering – to allow workers to contact us remotely.

Workers’ Compensation Trends for 2021 – Telemedicine and Worker’s Compensation

Posted on Tuesday, December 29th, 2020 at 1:33 pm    

Today, people can connect to the Internet and with each other in many different ways – desktop computers, laptops, smartphones, and tablets. This technology is now being used to connect doctors and patients remotely – in place of in-office visits. The trend of using telemedicine in workers’ compensation cases is expected to continue through 2021 and beyond.

Electronic communications are being used for consultation, monitoring of a patient’s condition, management of chronic conditions, management of medication, and other clinical services – provided the video and audio connections are private and secure. Telemedicine usually includes a video consultation, after an injury, where the doctor can hopefully make a diagnosis of the workers’ injuries – though the worker may need to go to a lab to have certain medical tests done. The physician can then conduct follow-up examinations remotely instead of in-person. 

According to a representative from Kaiser Permanente (KP), a leader in telemedicine services, In 2015, of KP’s 110 million interactions between physicians and members, 56% were virtual, surpassing physical visits for the first time.”

The US Department of Veterans Affairs, which operates the country’s largest healthcare system, is using telemedicine for many veterans nationwide.

The use of telemedicine during the pandemic

During the pandemic, the use of remote technology has been a life-saver for many workers. Workers who use telemedicine can do so from home so they don’t need to be in contact with anyone who might have the disease – other than their own family members. Physicians and healthcare providers are using telemedicine to consult with their patients.

Advantages of telemedicine in work injury cases

There are some advantages to using telemedicine for all types of injuries. Telemedicine is useful for the following situations:

  • If an injury occurs during a night shift when most medical offices and facilities are closed, a physician can remotely begin the evaluation process
  • If an injury occurs in a rural area or an area where there aren’t many quality medical facilities
  • When accidents happen away from the company site. Here, the worker can call into the company doctor.
  • It’s generally easier to schedule appointments. Patients can wait to see the doctor in the comfort of their home instead of waiting in the doctor’s office hoping there’s an interesting magazine to read.
  • Telemedicine can be used to remotely measure a patient’s vital signs
  • Telemedicine can be used to prescribe prescription drugs remotely
  • Text alerts and messages keep the worker/patient informed of important health information

Telemedicine is useful for post-surgery care and second medical opinions. Telemedicine makes it easier to connect with specialists who may not be locally available.

According to the National Council on Compensation Insurance (NCCI), “In certain situations, where accessibility to immediate medical care may be limited, one type of telemedicine service—24/7 tele-triage—may be an invaluable resource for initial assessment and evaluation. 

Telemedicine also helps workers and employers because it saves on the time and expense of transportation to and from the doctor’s/healthcare providers’ office. Telemedicine also makes it easier to see specialists and to reduce delays in getting medical treatment.

Some of the limitations and risks of using telemedicine

Generally, telemedicine is only advisable for non-critical situations. Many workers do need to be treating in an emergency room or a doctor’s office so the physicians can properly and fully examine the patient.

There are many legal issues involved with telemedicine such as that physicians can generally only give advice to patients they’ve seen in person at least once and can only give advice to patients who live in the same state as the doctor.

Some of the downsides of using telemedicine for work injury patients include:

  • The technology isn’t always reliable. Signal or connection failures can mean missing an appointment.
  • Some workers just aren’t comfortable with any type of technology including video technology

According to NNCI, some of the other risks of telemedicine include:

  • “Lack of physician fee schedules for telemedicine services
  • Lack of regulations and policies for licensing and privacy
  • Jeopardized quality of care with potential for misdiagnosis
  • Possible high start-up technology costs
  • Cybersecurity threats; security of data.”

As telemedicine expands, medical practitioners and patients will need to develop a balance between in-person visits and the use of telemedicine.

Recent Telemedicine Legislation

States and federal agencies, such as Medicare, are working to keep current with the advances in technology. According to NNCI, “In early 2018, Texas proposed a rule that would expand injured workers’ access to telemedicine services by lifting a restriction in the Medicare-based reimbursement policy that limits the use of telemedicine to underserved areas—typically rural regions with few healthcare providers.” Other restrictions, depending on the state, require that telemedicine could only be provided to a patient in a doctor’s office, hospital, or clinic, but not at a patient’s home. 

Generally, the types of telemedicine services that are covered by workers’ compensation insurance, the provider requirements, and how reimbursement works vary from state to state. Some states require that doctors even have a special telemedicine license. 

It is likely that the use of telemedicine will expand even when the pandemic is over. Because telemedicine helps reduce costs and may improve the outcomes for the worker (because the worker has access to specialists and his/her medical care is monitored electronically), telemedicine should be advantageous for both the worker and the employer’s insurance company. In addition, as telemedicine expands, workers may find that they enjoy it even more because of the reduced need for travel while they’re not feeling well and for the other advantages that we’ve described.

Attorney Joe Miller has been a strong advocate for injured and ill workers in North Carolina and Virginia for more than 30  years. He works with your physicians and the company doctors to help ensure you are receiving the medical care you need and deserve. To discuss your North Carolina or Virginia workers’ compensation claim with an experienced and caring work injury lawyer, call attorney Joe Miller, Esq., at 888-667-8295. or use my online contact form to schedule an appointment. Workers can also use our New Electronic Case Review. It’s a new way of communicating with clients that we’re offering – to allow workers to contact us remotely.

Workers’ Compensation Trends for 2021

Posted on Monday, December 28th, 2020 at 1:33 pm    

There are many 2020 developments that will affect workers’ compensation for both employees and employers in 2021 and the coming years. Many of these developments are related to COVID-19. Other developments, according to CMR Risk & Insurance , include the use of telemedicine, the rise of mega claims, and the rise of comorbidities.

Employers across North Carolina and Virginia are required to have workers’ compensation for their employees. The insurance should cover any accidents in the workplace regardless of fault and any occupational illnesses. The insurance should pay the workers’ medical bills and a large portion of their lost wages (generally, about 2/3rds) during the time they can’t work, or in many cases, if their employer is unable to accommodate their physical restrictions due to the work injury, for a maximum of 500 weeks. In addition, the insurance should pay for any permanent partial disability, even if the injured worker is able to return to employment. In some cases, payment for vocational rehabilitation may be required.

COVID-19 and workers’ compensation

The COVID-19 pandemic has affected workers and employers in many ways. Key compensation factors are related to the nature of the business. Some professions such as healthcare and delivery services expose workers to a greater risk of contracting the disease. Other professions, such as professional services, have less risk because the professionals can usually work remotely by using the Internet.

Employers need to consider what safety precautions to take depending on the nature of their business. Employees need to understand that workers’ compensation claims for families of workers who died due to COVID-19 and claims by workers who become ill or had to quarantine due to the disease will be handled on a case- by- case basis. Some of the questions that arise in COVID-19 workers’ compensation cases include:

  • Did the illness arise out of the scope of your employment?
  • Was the illness caused by job-specific conditions – not through conditions that the general public was also exposed to?
  • Can you prove these items via your doctors to a standard of clear and convincing evidence? 

As we discussed in previous blogs, some states are enacting laws to cover workers who develop COVID-19. Some states are also creating presumptions as to what conditions indicate a worker who developed COVID-19 – developed that condition through work. Thus far, in Virginia, a bill which would have given such presumptions to health care workers, first responders, firefighters,  and teachers who develop COVID-19 was defeated in the State Legislature earlier this year. North Carolina is still wrangling with the particulars of a similar bill before the State Legislature in Raleigh. 

Meanwhile, the Virginia Workers Compensation Commission in Virginia and Industrial Commission in North Carolina are still deciding COVID-19 workers’ compensation cases on an individual basis, under the standards of an ordinary disease of life, which are difficult, but not impossible, to meet. Mega Claims

According to CMR Risk & Insurance, another new trend is that many workers are filing “mega claims” which can result in payouts (for medical bills, wages, and other expenses) of millions of dollars.These claims are usually due to workers who have severe, and often, permanent injuries. Mega claims are often due to motor vehicle accidents, accidents where the worker was struck by an object, and falls.“In some cases, however, mega claims can develop slowly—particularly when caused by minor injuries that go untreated.”

CMR reports that, according to a recent study conducted by the National Council on Compensation Insurance (NCCI), these claims have reached a 12-year high—increasing in both frequency and severity. This increase has been attributed to several possible factors, such as changes in mortality patterns, medical advances, and a rise in health care costs.”

Employers are advised to take extra safety measures to help reduce the risk workers will suffer injuries that can result in mega claims.

Presumptions for first responders

According to M Power by Mitchell (a casualty and insurance company), “states are beginning to examine presumption laws for first responders and expanding coverage to conditions such as PTSD.” The issue of presumptions raises questions as to:

  • Which injuries and illnesses should be covered?
  • Whether the injuries and illnesses are related to the risks of the job?
  • Who should be covered, if anyone, beyond first responders?

For instance, Virginia this past summer passed into law what is now VA Code 65.2-107, which provides that any first responders, fire fighters and police officers who suffer from Post Traumatic Stress Disorder (PTSD) will be compensated, provided the PTSD was caused by a “qualifying event.” 

A qualifying event is defined as an event: 

  1. Resulting in serious bodily injury or death to any person or persons;
  2. Involving a minor who has been injured, killed, abused, or exploited;
  3. Involving an immediate threat to life of the claimant or another individual;
  4. Involving mass casualties; or
  5. Responding to crime scenes for investigation.

The rise in comorbidities

“A comorbidity is the simultaneous presence of two or more medical diagnoses for an individual.”

“Comorbid conditions are typically long-term health complications that have the potential to increase the severity of other injuries or illnesses that the affected individual may experience, making it more difficult to fully recover. Common comorbid conditions include obesity, diabetes, hypertension, depression, anxiety, and substance abuse.”

CMR states that an NCCI study found that work injury claims involving comorbidities have nearly tripled since 2000. In addition, the cost of workers’ compensation claims involving comorbidities is about twice that of other claims. This is generally because workers with comorbidities need more time to heal, are more likely to develop complications, and are at more risk of having a permanent disability.

In response to the concern about comorbidities, many employers are implementing wellness initiatives – to address chronic health problems and improve their staff’s overall fitness.

Another term to describe comorbidities are “pre-existing conditions.” The good news is that in most cases, if the work injury has even the slightest bit to do with causing the current disability, then the entire claim is compensable. The bad news is that if you are only partially disabled or on light duty, and a comorbid condition causes you to become completely disabled, that could essentially end your workers compensation claim, even if you are under an Award. 

Labor trends and workers’ compensation

Many employers are hiring workers who lack experience in order to fill their labor shortages. The problem is that workers who are inexperienced are more prone to accidents in the workplace. Part of the problem of inexperienced workers can be addressed through better training. Part of the problem, though, is that there’s simply nothing like experience to do jobs in a safer manner.

“According to a recent survey conducted by the Golden Triangle Business Roundtable in Texas, employees with less than five years of experience contribute to 43% of overall workplace injuries.” 

Another labor trend that is affecting workplace accidents is that many workers are working later in life. Data from the US Bureau of Labor Statistics shows that “employees over the age of 55 in the labor force are expected to increase to nearly 25% by 2024 (up from 21.7% in 2014).” Older workers generally require more time to recover from an accident than younger workers. Older workers generally have poorer balance, hearing, and vision than younger workers. They also have slower reaction times.

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. has been fighting for injured workers for more than 25 years. He’s helped thousands of employees get just recoveries for the injuries and illnesses which are work-related. He also keeps current with the new trends and new laws. 

If you’ve been involved in any type of workplace accident or think your illness is related to work, speak with an experienced North Carolina and Virginia workers’ compensation attorney. You can reach attorney Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to schedule an appointment. Workers now can also complete our New Electronic Case Review. It’s a new way of communicating with clients that we’re offering – to allow workers to contact us remotely.

When Are Workplace Injuries Not Covered by Workers’ Compensation?

Posted on Wednesday, December 16th, 2020 at 9:53 am    

Most people automatically assume if they are injured at work that they’re covered by their state’s workers’ compensation laws. And, for the most part, that’s true. If you slip and fall or suffer some other accident at work, in most cases, you should be covered. If you are loading very heavy items into a cart and wrench your back, you should be covered. If a forklift tips over or malfunctions, and you are injured, you should be covered.

In workers’ compensation cases, there is no need to prove fault. Generally, if you’re hurt while doing your job, you should be entitled to have all your medical bills paid by your employer’s insurance company and approximately 2/3rds of your wages while you are temporarily totally disabled for up to a maximum of 500 weeks, or if you become permanently or partially disabled. Permanent partial disability benefits are paid for a specific number of weeks. 

As with every rule, though, there are many exceptions. There are a few situations where your injuries will not be covered – in some cases, because your employer is not required to be insured, in other cases because of some misconduct on your part, and in others, because the injury you suffered is not considered to have arisen out of your employment.

The Employer is not Required to Carry Workers Compensation Coverage

Unless the employer has more than three employees who are regularly employed in the business, then they are not required to carry workers compensation coverage. 

The most common scenario where this issue comes up is with construction companies. The employer will actually have many more than 3 workers who regularly work for the employer, but the employer will claim that everyone is an independent contractor. Oftentimes, this is actually not the case. When you analyze the situation, you begin to realize that all of those “independent contractors” are treated no differently than an employee would be treated. They show up at a specific time every day. They are required to follow the rules and directions of the boss. They generally work nowhere else except the employer. The employer supplies all of the equipment for the job. No matter what they employer calls them, these workers are employees and must be covered. 

So what happens if the employer has no coverage? In North Carolina, unless the employer was somehow at fault, you are out of luck, unless there was a general contractor over the employer who was insured. Sometimes you can find coverage there. 

In Virginia, if there was no insurance with the general contractor, the Commonwealth of Virginia maintains something called the Uninsured Employer Fund which is designed for just such situations. They will stand in the place of the insurance company and pay the claim. Of course, after the fact, they will go after the employer and attempt to recoup their payments. 

NOTE: Just because your employer does not have more than 3 employees in the business DO NOT ASSUME that he does not have coverage. IF the employer ELECTS to purchase coverage, then even though the employer was not REQUIRED to carry coverage, that coverage will invoke all of the rights of the Workers Compensation Act and if you are hurt on such a job, you will be covered by the Act. 

We particularly tell construction workers who own their own business and do construction work themselves: Please, please buy coverage for yourself and your workers if you can find a way to afford it. We have seen too many lives ruined for failure to purchase coverage. 

Pre-existing conditions

If a pre-existing physical condition is the sole cause of your injuries and it’s the pre-existing condition that causes the injury, then you may not be covered. For example, if an employee has severe osteoarthritis, that condition can damage and cause pain in various joints such as the hands, hips, knees, and spine. If you are working and your knee buckles – even though you didn’t fall or didn’t come into contact with any object – then a physician may conclude that nothing at work caused your knee pain – your knee pain is due to your arthritis and nothing else. 

This situation is different than if you slip and fall because the floor is wet and then hurt your knee. A doctor might say that part of your pain in your knee is due to the osteoarthritis – but since the wet floor caused your fall, you can claim workers’ compensation benefits. The good news about pre-existing conditions is that it is rare that a claim will fail because of them. This is because in Virginia, so long as th the injury caused a sudden mechanical change in your body, then if any portion of your disability comes from that injury, no matter how slight, then the entire injury and treatment for it is compensable. 

Many other conditions may be caused by events at work that are personal to the worker and weren’t caused by work. In these cases, the employer will contest your right to workplace benefits.

Personal risk

There are some injuries that the workers’ compensation board or courts may consider non-compensable because they’re due to a personal risk that the employee assumes. For example, if a worker starts a fight with a co-worker, especially if it is over personal issues between them, then that worker will not be able to file a work injury claim for all the burn injuries and respiratory injuries he suffers. The victim of the assault, however, would normally have the right to file a workers’ compensation claim – provided that the reason for the fight was not personal, but work-related in some way. 

Deviations from work

Some employees who are working for their employer take time off to run personal errands. For example, a salesperson who is on the road may take time out to go shopping for something. If that worker is then injured (suffering bone fractures) by falling on the parking lot asphalt, the employee may not be able to claim worker’s compensation benefits to treat with an orthopedist to mend the broken bones– because he/she was injured while deviating from his/her work assignment. The trip to the retail store was not related to his/her work and thus would not be compensable.

Recreational injuries

Recreational activities include activities that are not generally considered part of a workers’ daily job requirements. These activities can include company softball games or outside picnics where workers mingle with other people. Injuries while playing a game or just serving food at a picnic do happen. 

Whether the injury is considered related to work often depends on a few factors such as:

  • Was the participation in the recreational activity mandatory? If everyone at work has to partake in the activity, that suggests that the employer should be responsible if you’re hurt while participating in the recreational activity.
  • Does the participation affect your employment? If the employer makes clear that participation makes you seem like a team player and that participation can help you be promoted, then those factors indicate that the activity was work-related
  • Did the employer provide the source of the recreational activity? These days, many companies offer gyms where employees can work-out. If the employer provides the ability to do the recreational activity – and encourages you to work out for your health – those factors suggest the activity is work-related.

If, on the other hand, a few workers decide to get together for a few beers after work and one worker trips and falls while carrying the beers, that would likely not be considered to be in the course of employment.

Virginia Claims: Failure to Prove the Injury Arose from a Risk Associated with Employment-No Such Requirement in North Carolina

Virginia, unlike North Carolina, has an additional requirement that the injury must be caused by a risk associated with employment. The most classic scenario is a fall down the stairs. In North Carolina, this would be considered a compensable work accident. 

In Virginia, a risk analysis is conducted. What was the employee doing at the time of the fall down the stairs that created a risk that was different from someone in the public who also fell down the stairs? If the answer is nothing, there is no risk of employment and no compensable case. On the other hand, if the employee had his or her hands full with work-related items that made it hard to see or grasp the railing? Or did the employee have some slippery substance on the bottom of his or her shoes that was from a factory floor? Were the stairs themselves somehow defective, such as worn out or missing anti-slip guards on the stairs? Those all would qualify as risks of employment.  

Another example would be someone who wrenches his or her back while performing work duties, such as picking up a light item off of a shelf, turning around and placing it in a box.  The worker is not lifting anything heavy, but suddenly feels a sharp, severe pain in the back resulting from that specific movement at work. In North Carlina, particularly with respect to back injuries, all that is required is that the injury occur as a result of a “specific traumatic incident” of the work required. Accordingly, it would likely be compensable. 

 In Virginia, such a case would not be found to be an “accident” or a result of a risk associated with employment. Anyone could lift a light item off of a shelf and suffer this same injury. It would therefore not be considered a risk of employment and therefore not a compensable accident in Virginia. 

Willful Misconduct, Intoxication and Violation of a Safety Rule

If you engaged in willful misconduct at the time of the accident such as intentionally inflicted injury, you may not recover. Also, if you were found to have been intoxicated at the time of the accident in either Virginia or North Carolina, you may not recover anything. Note that intoxication does not only mean being over the legal limit of .08 BAC in VA.  If fellow employees or supervisors testify that they smelled alcohol on your person on the day of the accident and you were exhibiting signs of intoxication, then that may be sufficient to say you were intoxicated. The intoxication must be found to have been a proximate cause of your accident. 

In North Carolina, the intoxication need only be found to have caused the employee to “lose the normal control of his or her bodily or mental faculties, or both, to such an extent that there was an appreciable impairment of either or both of these faculties at the time of the injury.” 

Insofar as violation of safety rules, to bar a claim in Virginia, the employer must show that the rule was one that was enforced across the board by the employer and that its violation was a proximate cause of the accident. So if the employer at a roofing company says you failed to follow the well-known rule about tying off with a safety rope and harness when working at heights, and yet that same morning your boss and co-workers also alighted and worked on the roof without tying off, that would be a rule that was not generally enforced. They cannot apply it for the first time to you, in order to prevent you from receiving benefits. Another commonly brought up rule is failure to wear seat belts in auto collision.  If the employer had such a rule but never informed the injured worker about it, and never enforced it, that rule may not be used selectively against an injured worker. 

In North Carolina, violation of safety rules by the injured worker will typically not bar or prevent a claim, but will reduce the weekly compensation payment to the injured worker by 10%. 

Each case is different. You should not assume that you don’t have a case. There may be good reasons why you can assert a claim. The best course of action if you are injured at work or doing anything that might be work-related is to speak with an experienced North Carolina or Virginia workers’ compensation lawyer. Often, there is a very fine line between having a viable claim and not having a claim. 

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. understands when injury accidents at or related to work are compensable. He’s helped thousands of injured and ill workers get the compensation they deserve. Attorney Joe Miller has been fighting for injured workers for more than 31  years. For help with any work injury claim, speak with an experienced North Carolina and Virginia workers’ compensation attorney. You can reach attorney Joe Miller, Esq., at 888-667-8295. or complete our  online contact form to schedule an appointment. You can also complete our New Electronic Case Review. It’s a new way of communicating with clients that we’re offering – to allow workers to contact us remotely and submit a claim for consideration, even after hours. 

What is Maximum Medical Improvement?

Posted on Tuesday, December 15th, 2020 at 9:52 am    

When you’ve been hurt at work, there comes a time when continuing to treat with your doctors doesn’t improve your medical condition. When additional medical treatments won’t improve your medical condition and the healing process is stopped – you’ve reached the point of Maximum Medical Improvement (MMI). 

This does not mean that you no longer require medical treatment such as pain management. It just means that according to the opinions of your doctors, you are unlikely to improve your permanent outlook with additional treatment. 

Workers have the right to get medical treatment for any injuries they suffer due to a workplace accident. Most workers start with a visit to an emergency room doctor or they see a physician designated by the workers compensation insurance company, or in some cases, their personal physician. Depending on the type of injury and the severity of the injury, injured workers may need surgery. They often need to see a specialist; maybe several specialists to address their work injuries.  Injured employees often treat with physical therapists, occupational therapists, and/or rehabilitation therapists. Some workers also need to see a psychologist and/or psychiatrist.

Employees who are injured at work who suffer a compensable claim have every right to try to maximize their health and minimize the consequences of their injury at work. During the time they are working to improve their health, they are entitled to have the insurance company for the employer pay their medical bills and generally, 2/3rds of their average weekly wages for the time their authorized physician holds them out of work or for a maximum of up to 500 weeks.  Some injuries completely heal with time – such as many minor fractures. Other injuries never completely heal and may require the insertion of hardware or other drastic methods of repair. 

Maximum medical improvement is an important milestone in an injured worker’s case for a number of reasons: 

  1. It enables your doctor to refer you for a Functional Capacity Examination to determine whether you have any permanent, physical restrictions due to your injuries; 
  2. It enables your doctor to refer you for a Functional Capacity Examination to determine whether you have any permanent partial impairment in any specific body parts you may have injured in your accident;
  3. It is generally a signal to all parties that a potential settlement may be on the horizon; 
  4. It is generally a signal to the defense that they may want to engage you in a program of vocational rehabilitation after the results of your FCE come in. 

MMI evaluations

When workers reach MMI, several evaluations need to take place.

  • The first evaluation is whether you have reached the point of MMI. Often employers will argue that you’ve reached MMI in order to force an early settlement or try and force you back to work or to try to cut off your right to your 2/3rds share of your average weekly wages. You have the right to challenge any claim you’ve reached MMI if you still think medical treatment can improve your health. Normally, the doctor who is treating you makes the initial determination of when you’ve reached MMI. 
  • The treating doctor, in some cases, may be a “company doctor” meaning  he/she does have some bias towards getting you back to work per the insurance company’s wishes. 
  • In North Carolina, if you disagree with a determination that you’ve reached MMI, you have the right (with the help of an experienced North Carolina compensation lawyer) request an independent medical examination (IME). The IME is a medical review done by another physician of your choice. Unfortunately, there are no such provisions in Virginia; however, if you can afford to see a different physician, you can pay for the examination yourself. 
  • After the MMI determination by your physician, the second step is usually for that physician to order a Function Capacity Examination (FCE) by a licensed physical therapist’s office equipped for such exams. This evaluation is to determine if you can return to work with workplace restrictions. A typical workplace restriction is that you can work but you can’t lift or move any objects that weigh more than 20 pounds. 
  • After the FCE occurs, some employers may decide to adjust or accommodate your work routine so you can work with these restrictions. This way, you can earn your salary; however, this accommodation does not come without risks. Note that If the employer reduces your pay because of the workplace restrictions, you should be able to continue to receive pay loss benefits – but the benefits are adjusted to reflect 2/3rds of the difference in pay between your pre-injury wages and your new wages. 
  • If the employer doesn’t have a job for you that you can do based on your work restrictions, then you can continue to receive your 2/3rds per week disability payments. In Virginia, if you are not under an Award for benefits, or if your claim in in North Carolina, if your employer cannot accommodate your restrictions, you must look for a job you can do with those restrictions. If you are under an Award in Virginia, then you are under no obligation to look for other work. The burden shifts to the employer in cases of an Award to find you work and if they choose to do so, this is done via vocational rehabilitation. 
  • Oftentimes, the FCE also includes a portion of the exam which is designed to decide whether you are eligible for permanent partial disability or permanent partial impairment (PPI) benefits. When you’ve reached MMI, the treating doctor, after reviewing this portion of the FCE report, will normally also assign an injured worker a Permanent Partial Disability (PPD) or Impairment rating (PPI). Here, the physical therapist is performing tests on your injured body part to determine if you there exists a permanent disability in the injured body part. Based on that evaluation, the physical therapist— and later your doctor– will assign a percentage rating to that disability (called an impairment rating). 


An example of a permanent partial disability/impairment is the loss of function of a hand. An impairment rating is an assignment of the severity of that loss of hand such as 90%. This means you’ve lost 90% of the function of your hand. If you are entitled to permanent disability benefits, the amount of the benefits (a specific number of weeks such as the maximum of 200 weeks for the hand– what North Carolina law permits) is multiplied by the impairment rating. So, if you would normally be entitled to 200 weeks for a permanent disability and you have a 90% impairment rating, you will be entitled to 90% of 200 – or 180 weeks. Note that this is NOT in addition to any weeks you remain out of work. 

  • After you have reached MMI and these evaluations occur is typically a good time to determine whether you want to consider a lump sum settlement. If you are unable to return to your former job and so far you are unable to find alternate employment or the insurance company has not been able to find any for you, then you have the potential for a maximum of 500 weeks of payments ahead of you. These potential future weeks, along with the value of the medical side of your claim can then form the basis of a lump-sum settlement demand by your attorney. 

If, on the other hand, you have returned to work at a job at or higher than your pre-injury wages, and you have been determined to have a permanent partial disability and an impairment rating, then the number of weeks as determined by that percentage, plus your future potential medical treatment would be the basis of your attorney considering and possibly negotiating a lump-sum settlement (called a clincher agreement in North Carolina). In a lump-sum settlement, you’re a negotiated portion of what potentially is due to you in the future (the 2/3rds’ wages and medical bills) in one payment to you, so you control the money. The risk, of course, is that there is no do-over if your medical bills are more than you anticipated. On the other side, the risk to the insurance company is that you will, in fact, get better, require little further treatment,  and find a good job on your own, in which case would not have ended up paying you what they paid out in settlement. 


An experienced work injury lawyer will advise you about the pros and cons of a lump-sum settlement in your particular circumstance. 

It’s important to understand that you are still entitled to seek medical help – after you reach MMI – and to have the employer pay for that medical care. The key requirement is that the medical care must be needed to help ensure your medical condition doesn’t worsen. Many patients, for example, who have chronic back pain due to their workplace injury need pain management or orthopedic maintenance so their back pain doesn’t get worse.

You should also understand that if you are in an accepted claim or under an Award, the burden to switch from temporary total disability benefits to permanent partial disability benefits, or from temporary total disability benefits to a termination of benefits, is on the employer.

Talk with a seasoned North Carolina and Virginia workers’ compensation lawyer today

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. understands that many employers try to push workers to return to work before they’re healthy. He works with your doctors and independent doctors to help assess your medical difficulties and concerns. When you reach maximum medical improvement, he also works to assist your doctors in determining whether you have a permanent partial or full disability as you look to your future.  To discuss your worker’s compensation case, call attorney Joe Miller, Esq., at 888-667-8295. or fill out our online contact form to schedule an appointment. You can also fill out our New Electronic Case Review. It’s a new way we’re offering so workers can contact us remotely.

Hernia and Workers’ Compensation

Posted on Wednesday, December 9th, 2020 at 1:32 pm    

Hernias occur when a bodily organ pushes through your muscle or tissue. Muscles and tissues hold your organs in place. A common example is when a person’s intestines push through a weakening in the abdominal wall. Other common locations for hernias include the upper thigh, the groin, and the belly button. Generally, hernias don’t repair themselves with time. In severe cases, surgery may be required because the hernia can become life-threatening.

What are the different types of hernias?

According to the Cleveland Clinic, there are several types of hernias. These include:

Inguinal hernias. 

  • Inguinal hernia: “In men, the inguinal canal is a passageway for the spermatic cord and blood vessels leading to the testicles. In women, the inguinal canal contains the round ligament that gives support for the womb.” When an inguinal hernia occurs, part of the intestine or fatty tissue – pushes through the groin – at the top of the inner thigh. Men suffer from this disorder more than men.
  • Femoral hernia: This type of hernia, in which “fatty tissue or part of the intestine protrudes into the groin at the top of the inner thigh” affects women more than men.
  • Umbilical hernia: This type of hernia occurs near the belly button (navel) as the tissue or intestine pushes through the abdomen.
  • Hiatal (hiatus) hernia: Here, “part of the stomach pushes up into the chest cavity through an opening in the diaphragm (the horizontal sheet of muscle that separates the chest from the abdomen).”
  • Incisional hernia: This type of hernia is normally due to a surgery – where tissue pushes through the site of an abdominal scar “from a remote abdominal or pelvic operation.”

The strong majority of hernias are inguinal or femoral.

Other types of hernias include:

  • Epigastric hernia
  • Spigelian hernia
  • Diaphragmatic hernia

Why do hernias occur?

Some hernias are due to conditions that have existed since birth. Hernias are often caused to do aging. Repeated strains on the abdominal and groin area can also cause a hernia. These strains can be due to physical exertion, frequent coughing, constipation, obesity, and pregnancy. Surgeries can also cause hernias. 

What are the symptoms of a hernia?

According to the Cleveland Clinic, common symptoms include a noticeable lump or bulge in the groin or abdomen – that can be pushed back in. Activities such as laughing, coughing, bowel movement strains, crying, or physical activity can make the hernia noticeable. Other symptoms include:

  • Pain while lifting
  • An increase in the size of the bulge
  • Pain at the edge of the bulge
  • “A sense of feeling full or signs of bowel obstruction.”

Can hernias be work-related?

Yes. Hernias may be due to a specific incident or to cumulative trauma. A lifting accident can cause the muscle of the abdominal wall to tear. Repetitive lifting over time can also cause a hernia; however, it must be remembered that generally, a repetitive trauma that occurs as a result of lifting over time is generally held to be non-compensable. Meaning, that you must prove the hernia came from a specific, identifiable incident that occurred at a specific moment in time, for instance, attempting to lift an unusually heavy object. Hernias, as discussed, may be due to surgeries – and the surgeries may be necessitated because of a workplace accident that causes abdominal or groin injuries.

Hernias may be secondary to other types of injuries or conditions which may render the hernia non-compensable. For example:

  • Coughing and sneezing may be due to occupational illnesses or due to exposure to dust and chemicals; however, this would likely not be a compensable claim, or at least be extremely difficult to prove.
  • Constipation. People who have orthopedic surgeries such as surgery on their back may need to take medications which, in turn, can cause constipation. The straining during constipation can cause a hernia. Again, this would be very hard to prove, since the constipation is generally something the public is equally exposed to and not a condition of work; 
  • Gaining weight. Injuries such as back injuries can cause inactivity which can cause weight gain – which can then cause a hernia; however, this would also likely be very difficult to prove, since weight gain is also a result of other factors such as overeating. 

How are hernias managed?

You must report the hernia condition to your employer. Once you do, the employer will refer you to a physician (or give you a list of qualifying doctors in Virginia) who will examine you to confirm the hernia. Often a hands-on physical examination can confirm the hernia. If the physician recommends surgery, then you will be referred to a general surgeon. Early intervention for a hernia is strongly advisable.

The type of surgery required depends on your age and the type of hernia you have. The common types of hernia surgery include:

  • Open surgery. In this procedure, the surgeon makes a cut into the body at the site of the hernia. The tissue that is protruding is “set back in place and the weakened muscle wall is stitched back together.” Some hernias use mesh implants to give more support.
  • Laparoscopic surgery. The repairs are generally the same as for an open surgery hernia operation – but “instead of a cut to the outside of the abdomen or groin, tiny incisions are made to allow for the insertion of surgical tools to complete the procedure.”
  • Robotic hernia repair. This hernia operation “uses a laparoscope, and is performed with small incisions.” In a robotic surgery procedure, the surgeon handles the surgical instruments from a console. “While robotic surgery can be used for some smaller hernias, or weak areas, it can now also be used to reconstruct the abdominal wall.”

Hernia surgeries are a fairly common procedure. Some hernias do reoccur. If the original hernia was work-related, then the subsequent hernia may also be work-related.

Other treatments may include losing weight, changes in lifestyle, a better diet, and medications.

What happens if the hernia isn’t treated?

Failure to treat a hernia can cause:

  • Obstruction (incarceration): “Part of the intestine becomes stuck in the inguinal canal, causing nausea, vomiting, stomach pain, and a painful lump in the groin.”
  • Strangulation: “Part of the intestine is trapped in a way that cuts off its blood supply. In such cases, emergency surgery (within hours of occurring) is necessary to prevent tissue death.” I am personally aware of at least one person who failed to get appropriate treatment in time and died as a result of this type of hernia. Within 36 hours after he sustained this hernia, almost the entirety of his intestinal tract was necrotic, i.e. dead tissue due to the loss of blood flow to those tissues. There was nothing the surgeons could do. He died shortly thereafter.  Take this type of hernia VERY SERIOUSLY. 

 If you suffer a work-related hernia, then you should have the right to:

  • Payment for all reasonable and necessary medical expenses including the cost of a hernia surgery
  • Lost income based on your temporary work disability at 2/3rds of your average weekly wage so long as your doctor opines that you are unable to work– until you have any necessary surgeries (including time to recover). Depending on the outcome of the surgery, in some cases, you may also be entitled to permanent disability benefits.

Talk to a premier North Carolina and Virginia workers’ compensation lawyer today

North Carolina and Virginia workers’ compensation attorney Joe Miller Esq. has helped thousands of workers get the workers’ compensation benefits they deserve. He’s been fighting for injured workers for more than 31 years. He’ll work with your doctors to help verify a hernia or any other injury is work-related. To speak with an experienced North Carolina and Virginia workers’ compensation attorney, call lawyer Joe Miller, Esq., at 888-667-8295. or complete my online contact form to make an appointment. You can use complete our New Electronic Case Review. It’s a new way we’re offering workers to contact us remotely, particularly after business hours.

Workers’ Compensation and Cold Weather

Posted on Tuesday, December 8th, 2020 at 1:32 pm    

We’ve written before about some of the types of accidents workers have when the weather gets cold – Worker’s Compensation and Winter Safety | Joe Miller Law, Ltd. ( Some of the major types of cold-weather accidents and injuries for workers include. Probably the most common type of injury is a slip and fall due to ice, melting water, and slippery surfaces. Cold weather cause potholes and pavement cracks which can also make falls likely.

Common cold weather injuries include frostbite, hypothermia, and back injuries. People who work outside such as construction workers, agricultural workers, and roadway maintenance crews are most at risk of suffering from the cold. 

Unfortunately, the notion of a worker’s compensation claim for injury such as frostbite or hypothermia is not as easy as a normal type of “accident” such as a slip or fall. This is because usually, frostbite and injuries like it occur over a span of time, sometimes days, and not in a particular moment. Generally, with very few exceptions, workers compensation law in both Virginia and North Carolina do not permit recovery for repetitive trauma injuries. In other words, if you cannot pin down your injury to a very specific period of time as well as conditions and assignments, you will have no case. 

A review of the case law tends to indicate that in, for instance, a frostbite situation, if the frostbite is brought on over several days or months in the cold weather, it may be difficult to bring a workers’ compensation claim for an injury by accident. If, however, the frostbite occurs as a result of a very limited, say, four or five hour uninterrupted exposure to extreme cold due to a set of tasks that the injured worker is required to perform, that may satisfy the requirement that the injury occur during a specific, identifiable period of time. Of course, this must be backed up with a qualified physician’s opinion. 

All that being said, there may be another option that is revealed by a review of the case law. Frostbite, hypothermia and other such cold-induced conditions could also be considered to be an occupational disease. To bring such a case, one would have to show, through clear and convincing evidence, that the unique conditions of work brought about the injury. Again, one needs to be prepared with a very clear physicians’ opinion that the specific injuries were a result of exposure to extreme cold at work. 

Best cold-weather practices for employers and employees

Many cold weather injuries are preventable with proper planning, training, and safety protocols. Some of these common strategies include:

  • Being prepared for cleaning snow and ice when it occurs
  • Having backup generators, heaters, and other equipment so workers can do their jobs and stay warm when the temperature drops
  • Having plans for stopping work when it gets too windy. For example, ladders and scaffolds are especially dangerous when the winds are too high.
  • Having the proper clothing and work gear for workers so they can work outside if it’s too cold. This includes protective equipment so that cold and rain doesn’t get in the worker’s eyes. Proper clothing should also include footwear to provide better traction and to prevent the worker’s feet and toes from getting too cold. Workers should have gloves, hats, thermal wear, and other protective clothing.
  • Hiring and using maintenance crews to inspect outside areas and entrances to inside areas for wet, cold, and slippery surfaces. Until the repairs can be done, the employer should place warning signs around all the dangerous sites.
  • Being vigilant about salting and de-icing any means of ingress and egress into work buildings. 

What steps should a worker take if a cold-related injury is suspected?

Workers have two priorities if a cold-weather injury such as frostbite or hypothermia is suspected: The first is to get immediate help. If the employer has in-house health care, they can help there. Otherwise, it’s advisable to call 911 or contact your emergency room. Workers may be in shock. The worker may not be aware of the extent of their injuries. Emergency medical personnel should be able to advise the worker and a supervisor whether the worker can be moved safely to the hospital or if emergency on-site care is needed.

The second priority is that workers who are physically able to need to notify their employer (usually a supervisor or manager) that they can’t work anymore due to the cold. If you can’t tell your employer immediately, you should inform your employer as soon as possible after you receive emergency medical treatment.

As mentioned above, unless one suffered an accident such as slipping on ice, workers who suffer injuries due to cold weather conditions such as frostbite or hypothermia may find it more difficult to prove their claim. If they cannot prove that the frostbite or hypothermia was a result of a very defined and specific period of time of no more than a few hours of exposure to extreme cold, the only other option would be to attempt to prove their case through the means of occupational disease, which is more difficult. 

Assuming the injured worker could prove his or her claim, the worker would have the right to file for workers’ compensation. Many injuries can take weeks or months to heal. During the time period where the worker is unable to work, the worker is entitled to:

  • Payment of all reasonable and necessary medical expenses
  • A percentage (about 2/3rds) of the workers pre-accident average weekly wages for the time they can’t do their job

General winter tips for workers

Workers and employers should also advise and prepare their workers for cold weather by:

  • Making sure they stay properly hydrated. Hydration can help manage dry skin and the itching and irritation dry skin causes
  • Making sure to focus on keeping the extremities warm – ears, finger, and toes
  • Eating plenty of fruits and vegetables to balance all Holiday carbohydrate treats
  • Getting some sun and fresh air when possible. Even before the pandemic, it was and still is important to spend some side outside
  • Keeping in shape. Get plenty of exercise.
  • Minimizing contact. As we all know now, shaking hands and close contact spreads germs and the flu. 
  • Washing your hands regularly
  • Knowing the signs of frostbite and hypothermia

Some ways to keep warm (and things to avoid) include:

  • Making sure your smoke detectors are working
  • Being extra careful when using candles
  • Turning off any portable heat-soured device when you go to sleep and when you leave home

A few winter driving safety tips

Many workers such as truck workers and delivery workers are entitled to workers’ compensation benefits if they are injured as a result of an accident while making deliveries. Salespeople and other workers may be entitled to work injury benefits too – if they have a vehicle accident AND if the accident occurs during the scope of their employment. With some exceptions, commuting back and forth to work is not considered within the scope of employment.

A few common safety tips for cold weather driving include:

  • Keeping longer distances between you and other drivers especially the driver in front of you
  • Being prepared to leave the road if the snow, sleet, hail, wind, or rain gets too intense to make driving safe
  • Allowing for much longer stopping distances
  • Allowing for more time to achieve your tasks
  • Having weather-related tools in your vehicle such as shovels and salt to help melt the ice
  • Making extra sure your windshield wipers work, your mirrors are clear, and your window defrosters work
  • Making extra sure your headlights are in good working order

According to Business Insurance:

  • Businesses may consider less formal dress codes – so people are encouraged to wear boots and stay warm.
  • Installing signs to warn people of cold-weather dangers
  • Making sure to inspect the property more often for uneven or slippery surfaces
  • Having more dry mats for people to wipe their feet

“Construction and utility, postal carriers, delivery personnel and employees in other similar positions may be negatively affected by improper protective clothing and training in the bitter cold, which could lead to hypothermia and/or frostbite, noted Ms. Roth.”

Employers who fail to take necessary precautions may be subject to OSHA violations.

Speak with an experienced North Carolina and Virginia workers’ compensation lawyer today

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. understands the many reasons why workplace accidents occur. It is not necessary to prove your employer was at fault in order to receive workers’ compensation benefits. The focus on considering safety measures in cold weather or any weather is to try to avoid the accident from happening. For help with any work injury claim, contact a seasoned North Carolina and Virginia workers’ compensation attorney. You can reach attorney Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to schedule an appointment. You can use complete our New Electronic Case Review. It’s a new way we’re offering workers to contact us remotely, particularly if they are awake after normal business hours. 

Permanent Partial Impairment (PPI) Ratings – Definitions and Physician Involvement

Posted on Monday, November 16th, 2020 at 12:13 pm    

This article defines when impairment ratings are required and how the rating is determined. The proper impairment rating may help to maximize the total amount of weekly benefits you’re entitled to after medical treatments can no longer improve your medical condition.

In the context of a workers’ compensation case, a permanent partial impairment rating  will typically be a measure of any permanent damage or restriction that is objectively measured in a specific body part, such as the upper extremities, lower extremities, hands, or feet. In North Carolina (not in Virginia) this can also include permanent impairment to the spine.  These partial impairment ratings are expressed in terms of a percentage of permanent impairment. 

AMA definition of maximum medical improvement (MMI)

 The Department of Labor’s AMA guidelines (North Carolina’s is comparable) states that MMI is the medical condition/time at which the worker’s health is not likely to improve – with our without- any further medical treatment. The AMA has an exception for a terminal employee who is undergoing medical treatment for an “illness that has not reached MMI.” 

A permanent partial impairment rating cannot be made until the worker reaches MMI.

The claim becomes more complicated if a worker has multiple illnesses or conditions – one of which has reached MMI and the others haven’t reached MMI. An experienced North Carolina workers’ compensation lawyer can then explain what happens.

The impairment rating is typically measured via a Functional Capacity Exam (FCE), which will usually include narrative text – to state and support the opinion of the therapist as to the percentage of impairment. Then the treating doctor will review that opinion and either sign off on it, or add his or her own modifications, often with a descriptive rationale to support any such modifications. 

Which physician conducts the impairment rating?

Your treating physician should also be the doctor who “signs off” on the percentage impairment and assigns a percentage rating to the impairment. As noted previously, that is usually done via a Functional Capacity Examination that your physician will have to review. The insurance carrier for the employer has the right to review this assessment. If the insurance company agrees with the assessment, then, depending on whether you are still receiving TTD benefits, they may forward an Award Agreement which you will sign, indicating how much you will receive for your PPI benefits. 

Alternatively, the rating money may be incorporated into a full and final settlement as negotiated between your work injury lawyer and the insurance company, obviously, in consultation with you.  The settlement can:

  • Award the payments for your permanent disability to be paid over time – for example, 35 weeks.
  • Alternatively, your lawyer and the insurance company can also discuss a lump-sum payment.  Here, you receive one check to cover the amount you would receive over time (for example, 35 weeks). 
  • If your attorney and the insurance carrier, in consultation with you, opt to engage in negotiations for a full and final settlement, where the PPI money is incorporated into that settlement, then there  are some considerations  and issues that will need to be resolved such as:
    • Ensuring that the settlement will cover any outstanding past and potential future medical expenses which are related to your work injuries. Even though an impairment rating means you’ve reached maximum medical improvement, workers often need extensive physical therapy, additional treatment such as injections or even possible future surgery to address any worsening of their injuries over time.  This is often addressed by your attorney asking your treating doctor for an opinion letter where the doctor may provide information as to your potential future care. 
    • Adjusting the amount because you’re getting all of it now instead of having to wait for it. This is called reducing the future projections to present value
    • Addressing any issues involving Medicare or Social Security.’
    • Addressing future potential medical transportations costs. In some cases, depending on the likely frequency of care and the location of your residence, these can be significant. 

If the insurance company does not agree with the impairment rating, they have the right to ask for an independent medical examination. In North Carolina, if you are unsatisfied with your doctor’s impairment rating, you can also request an independent  ratings examination with a doctor of your choice at the expense of the defense. (This option is not available in Virginia). The Workers Compensation Commission or Industrial Commission can then choose to accept:

  • The impairment rating of the treating physician
  • The impairment rating of the doctor who provides the independent medical examination
  • The average of the two different ratings

What tests and evaluation methods does the physician use to make the impairment rating?

The tests and evaluation methods vary depending on the nature of your injury. Treating doctors and independent medical examination doctors can perform these tests and methods – using the AMA guidelines or state guidelines – depending on the state. 

Today, as mentioned previously, most physicians send the patient to another healthcare analyst who specializes in functional capacity examinations (FCEs). These are usually physical therapy facilities with qualified personnel to perform the examination. There are two types or phases of an FCE exam. 

One part of the FCE exam focuses on the worker’s ability to do his/her job. This portion of the exam will typically rate the injured worker’s ability to perform work on a scale or continuum of ability as defined by the U.S. Department of Labor as Physical Demand Characteristics.  It ranges from no ability to work, on to sedentary, all the way up to very heavy work. 

Those parameters for the physical demand characteristics of workers are defined as follows: 

          Occasional Frequent       Constant 

          (0-33% of    (34-66% of                       (67-100% of 

          Workday)   Workday)                         Workday)

Sedentary        10 lbs. negligible negligible 

Light             20 lbs 10 lbs negligible 

Medium            20-50 lbs 10-25 lbs 10 lbs

Heavy             50-100 lbs 25-50 lbs 10-20 lbs. 

Very Heavy       over 100lbs 50 lbs 20 lbs  

 Another portion of the FCE is focused on the relevant injured body parts and is used to determine the permanent partial impairment in that body part and assign an impairment rating to that body part. 

Insofar as the portion that assesses whether the worker can perform his or her job, the FCE can also address what rehabilitation steps and what work modifications steps might help the worker who has a disability or medical condition – that otherwise prevents him/her from working.

The FCE examiner will evaluate the worker’s physical abilities. The evaluations provide data for the physician to make an impairment rating determination. The FCE examiner will typically assign an impairment rating and it is the treating doctor’s job to either “sign off” on that rating, or make modifications. 

Some of the tasks an FCE examiner may review include the worker’s:

  • Ability to lift
  • Ability to push or pull
  • How long the worker can sit or stand without discomfort
  • Ability to reach
  • Flexibility range
  • Ability to grasp and hold an object
  • The ability to bend
  • The worker’s balance
  • The ability to follow directions
  • The ability to communicate and organize
  • Walking on a treadmill
  • Crouching and kneeling

The FCE examiner will:

  • Conduct an intake examination
  • Review your medical records
  • Take an oral history
  • Conduct a physical examination

The tests are often done over a four to six-hour time frame. Some examinations are conducted over a two-day period – if stamina and tolerance to pain need to be examined. Many workers who are on workers’ compensation may be trying these exercises/routines for the first time since they stopped working. 

FCE exams are usually conducted by occupational therapists and physical therapists – in their own facility.  Both professionals require training, education, and certification.

If at all possible, our office tries to exercise some control over your doctor’s referral to the specific FCE facility where you will be evaluated. Sometimes, as in where your physician will make a direct referral to a facility, there is little we can do. But in other cases, the doctor will simply make a general FCE referral, in which case we try to convince the workers’ compensation insurance company to allow the evaluation to be performed at certain facilities that, in our experience, will conduct a fair examination. 

Unfortunately, as is the case across the medical treatment and evaluation landscape, there are certain providers and facilities whom we have come to know as being  very biased in favor of the insurance companies. These facilities will almost always come back with very low ratings on their FCE evaluations, and either find that the injured worker is 100% capable of returning to work, or that the injured worker is malingering, or faking his or her disabilities and that therefore, the results of the FCE are not reliable. 

How does the impairment rating work?

The impairment is generally assessed according to the loss of unction of a body part – such as limbs, muscles, joints, the brain, the spinal cord, and nerve damage.

In North Carolina, the state essentially uses a two part determination method:

  • Part one is categorizing the type of disability. For each type body part,  North Carolina law and Virginia Law sets forth the maximum  compensation (at the workers’ compensation rate, which is  2/3rd’s of the injured worker’s average weekly wage ) the worker would receive if he/she had a 100% permanent impairment in that particular body part.


For example, the maximum permanent loss of use of an arm is payable for 240 weeks in North Carolina.

  • Part two is assigning a percentage. The percentage is essentially a multiplier of the maximum figure that is presented in the statute. So, for example, if as in the above example, a worker has an arm injury, then we know the maximum is 240 weeks in North Carolina. 


 If the impairment rating is 20%, then the injured worker is entitled to 48 weeks of payments. That is 240 x 20%=48 weeks. So then you would take the TTD or compensation rate (let’s assume it’s $500.00) and multiply it times the weeks. In our example 48 weeks x $500.00=$24,000.00 in PPI money that the injured worker would be entitled to.  

Attorney Joe Miller, Esq. is a respected North Carolina and Virginia workers’ compensation lawyer. He’s been helping injured employees obtain just recoveries for more than 30 years. He’ll work with your doctors to ensure your impairment rating is judged correctly. He’ll explain which tests the doctor or an FCE examiner is likely to perform. He’ll fight to make sure you aren’t forced back to work if you can’t work. He’ll also work to ensure your medical bills are aid. To talk with an experienced work injury lawyer, call North Carolina and Virginia attorney Joe Miller, Esq., at 888-667-8295 or fill out my online contact form  or our new online case evaluation tool

The American Medical Association Guidelines and State Workers’ Compensation Guidelines – for Determining a Worker’s Permanent Impairment Rating

Posted on Thursday, November 12th, 2020 at 12:10 pm    

Different federal agencies and different states use the AMA guidelines (either directly or indirectly) to assess a worker’s permanent partial impairment. In the context of a workers’ compensation case, a permanent partial impairment rating  will typically be a measure of any permanent damage or restriction that is objectively measured in a specific body part, such as the upper extremities, lower extremities, hands, or feet. In North Carolina (not in Virginia) this can also include permanent impairment to the spine.  These partial impairment ratings are expressed in terms of a percentage of permanent impairment. 

The United States  Department of Labor has guidelines for evaluating medical evidence necessary to show a “ratable permanent impairment” for certain federal workers. Generally, workers who have a ratable permanent impairment are entitled to additional pay after they have reached the point of maximum medical improvement. 

States, such as North Carolina and Virginia, generally use comparable guidelines in determining how much, if any, additional compensation injured or ill workers should receive due to a workplace injury or disease. In Virginia, the guidelines are not specifically mentioned by statute, but are often utilized by doctors and rehabilitation professionals to assign permanent impairment ratings to the injured body parts of claimants.  Others use their own guidelines. For example, North Carolina has its own rating guide for impairment

Before we go further, one important note about impairment ratings generally: If we have an accepted claim or a claimant who is under an Award in Virginia, and the injured worker is injured to the extent that he or she cannot return to job he/she held prior to their injury, and the employer is unable to accommodate the employee’s physical restrictions, then really, except in  rare circumstances,  the impairment rating is not a very important item to consider.

 Why? Because first, if it is an accepted or awarded claim, and one cannot return to his or her pre-injury job, and the employer is not able to accommodate, then the employee will continue to receive TTD for potentially up to 500 weeks. So long as an injured worker is receiving TTD, then the law says he or she cannot simultaneously receive payments for permanent partial impairment (PPI) and TTD.  In other words, one cannot ADD to the 500- week maximum with PPI payments. 

Those PPI payments would only be available if, and when the injured worker returned to work at any job.   

In addition, in the scenario of an accepted claim, we are often looking at a potential settlement of the claim. The value of the indemnity or “weekly TTD checks” portion of the claim in a case where one cannot return to the pre-injury job is usually far higher than any payment that one would be entitled to for PPI. 

Accordingly, the only time PPI usually becomes more important is the scenario where the injured worker has returned to work in some capacity. Once that happens, we are going to factor those available payments into any potential settlement. In the above scenario, where the injured worker continues to receive TTD, and we are looking at a potential 500-weeks maximum of payout, we do not care as much about the ratings in any settlement scenario. 

North Carolina rating guide

North Carolina distinguishes between an evaluation of permanent physical impairment and permanent disability. It references the AMA guidelines as follows:

The Disability Committee of the American Medical Association (AMA) has pointed out that the evaluation of permanent disability is twofold:

  • The medical evaluation of the permanent physical impairment.
  • The rating of the disability according to the administrative bodies.


Physical impairment is a purely medical condition. Permanent physical impairment is any anatomical or functional abnormality or loss after maximum medical rehabilitation has been achieved and which abnormality or loss the physician considers stable or non-progressive at the time the evaluation is made.”

  • Permanent disability is not a purely medical condition. A patient is ‘permanently disabled’ if ‘under a permanent disability’ when his actual or presumed ability to engage in gainful activity is reduced or absent because of ‘impairment’ and no fundamental or marked change in the future can be expected.
  • Medically, disability is physical impairment and inability to perform physical functions normally.
  • Legally, disability is permanent injury to the body for which the person should or should not be compensated.

In workers’ compensation cases in North Carolina there are four types of disability:

  • Temporary partial disability. (TPD) The worker can return to work – but with restrictions. The worker receives treatments to try to improve his/her condition during this period. This is also available in Virginia, and in such circumstances, if the injured worker is working under reduced pay because of the physical restrictions, then he or she is entitled to 2/3rds of the difference between the pre-injury wages and the wages in the new, light duty job. 
  • Temporary total disability. (TTD) The period of time when the worker can’t do any work at all per the treating physician and is receiving medical treatment. TTD payments are 2/3’s of the injured worker’s average weekly wage.  To obtain an accurate number for TTD,  we multiply the average weekly wage x .66667
  • Permanent partial disability or impairment. (PPI) This term applies to a worker who has some permanent physical damage or some loss of use of a body part – after he/she has reached maximum medical improvement. Again, these impairments are expressed in terms of a percentage. Using the percentage, one would reference the law that sets forth the maximum permitted recovery for the body part in question. That recovery is expressed in terms of weeks of TTD. Then one uses the percentage to determine the available payment for one’s impairment rating. A quick example: In North Carolina, the maximum payment for the back or spine is 300 weeks. (no such impairment for the spine is available in Virginia). The treating doctor rates the injured worker as having a 20% permanent partial impairment to the spine. 20% of 300 is 60 weeks. If the injured worker’s TTD rate is $500.00, then $500 x 60 weeks= $30,000.00. The injured worker would be entitled to a payment of $30,000.00. Some discounts to that amount typically apply if the injured worker wants to receive the amount in lump sum vs. over 60 weeks. 

North Carolina’s rating guide for impairment is just meant to be a guide for physicians in their rating exams – since many injuries involve intangible factors such as “pain, weakness, and dexterity.” The doctor’s job is to assign a percentage to the impairment. The doctor should use hie/her independent judgement based on experience, a clinical examination, test results, and other factors to set the percentage. The North Carolina industrial Commission then uses this percentage, among other factors, to determine what award, if any, should be paid to the worker.

That being said, usually, ratings are determined within the context of rigorous testing of the injured worker at a physical therapy facility by a qualified professional known as a functional capacity examination (FCE). The doctor will usually rely on the results of the FCE to determine permanent partial impairment. 

American Medical Association definition of impairment

The Department of Labor guidelines reference the 5th edition of the AMA impairment guidelines. The 5th edition defines an impairment as “a loss, loss of use or derangement of any body part, organ system or organ function.” In addition, the 5th edition states: 

“Impairment percentages or ratings developed by medical specialists are consensus-derived estimates that reflect the severity of the medical condition and the degree to which the impairment decreases an individual’s ability to perform common Activities of Daily Living (ADL)excluding work. (Emphasis in original).

The AMA guidelines rate various organs and bodily functions by category – such as respiratory, cardiac, nervous system, endocrine, etc.

According to Insurance Journals, the AMA guidelines for the 5th edition (2000) were updated by a 6th edition (2007). Research from McMaster University in Ontario and the Netherlands showed that the 6th edition “resulted in significantly lower impairment ratings than the 5th edition,” according to research from McMaster University in Ontario and the Netherlands. Their findings, which were published in the Journal of Occupational and Environmental Medicine, stated that the difference in the impairment ratings is that the focus on impairment ratings shifted from pain and range of motion – to direct measures of function. “For example, in an earlier guide they may have measured whether a person could lift their arm above their head without discomfort, but now they look at whether the person could put a box on a shelf.”

“The results showed the median whole person impairment rating was seven per cent for 131 claimants assessed with the fifth edition of the AMA guides, and four per cent for 118 claimants assessed with the sixth edition.”

The study made another startling finding- that the state workers’ compensation boards throughout North America are not consistent with which AMA guides they use. 

According to Lexis, as of July 1, 2019, the count of  States Utilizing various guidelines broke out as follows: 

AMA Guides, 6th Edition 14 states 

AMA Guides, 5th Edition 10 states 

AMA Guides, 4th Edition 6 states 

AMA Guides, 3rd Edition Revised, 2 states 

State-specific guide used instead 16 states (although 15 states say AMA Guides may be consulted)

Comparison of the 5th and 6th AMA editions

Disability is defined as follows:

  • The 5th edition defines disability as – “Alteration of an individual’s capacity to meet personal, social or occupational demands or statutory or regulatory requirements because of impairment.”
  • The 6th edition defines disability as – “Activity limitations and/or participation restrictions in an individual with a health condition disorder or disease.” 

Impairment is defined as follows:

  • The 5th edition defines impairment as “a loss, loss of use or derangement of any body part, organ system or organ function.”  
  • The 6th edition adds the word “significant” to the definition. 

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. is a premier workers’ compensation lawyer. He’s helped thousands of injured employees obtain strong recoveries. He works with your doctors and independent doctors to properly assess your disability and your impairment rating. He’ll fight to ensure you are required to work only if you are physically able to work. To speak with an experienced North Carolina and Virginia workers’ compensation attorney, call attorney Joe Miller, Esq., at 888-667-8295. or fill out my online contact form , or utilize our new online case evaluation form.

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