(757) 455-8889

Common Myths About Workers Compensation. Part Three.

This is part three of our discussion of workers’ compensation myths. If you haven’t had a look at Part One or Part Two yet, we invite you to also see those articles for additional information. We begin with a continuation of our discussion about how workers’ compensation claims differ from personal injury claims.

Myth: Vocational Rehabilitation is Great, and the Workers Compensation Carrier is obligated to find me a job that I really enjoy and that pays at least as much as my pre-injury job.

Vocational rehabilitation. One benefit that you may be entitled to receive in workers’ compensation cases that you’re generally not eligible for in personal injury cases is vocational rehabilitation. Many workers, especially workers who perform manual labor, cannot return to their old jobs but they can perform a new less strenuous job with another employer if they receive the proper training and education, In North Carolina, vocational rehabilitation may include different services designed to help employees return to work. Generally, a vocational rehabilitation expert will:

  1. Assess your work qualifications, skills, education, and aptitude
  2. Identify the conditions that may impair your ability to work
  3. Identify “skills, certifications or training that might improve the workers’ job prospects”
  4. Arrange for proper classes and training “in the North Carolina community college or university systems”
  5. Provide “job-search counseling and assistance with resume preparation”
  6. Identify suitable job opportunities and job leads

We’ll explain when an employee can request vocational rehabilitation and how the process works. The vocational rehabilitation professionals must be properly certified.

We’ll also explain how the vocational rehabilitation process works in Virginia. The processes are similar in both NC and VA.

As a rule, though, unfortunately, when vocational rehabilitation services are initiated by the insurance carrier, it is typically not going to be a process that will help the injured worker’s case.

It is initiated generally by the defense insurance company to accomplish one or more goals if possible:

1. To reduce the comp carrier’s ongoing obligation to pay the injured worker his or her weekly comp checks, by finding the injured worker suitable employment. Suitable employment simply means something that is aligned with the injured worker’s capabilities, both physically and otherwise.

This does not necessarily mean the vocational rehabilitation counselor is going to find the injured worker something he or she would like or want to do. If such a job is offered to the injured worker, and it is within one’s physical restrictions, the injured worker is obligated to accept the job. If the injured worker does not accept the job, he would be considered to have refused vocational rehabilitation and he would likely lose all ongoing benefits.

If the injured worker accepts a job at less pay than his or her pre-injury job, the injured worker would still be entitled to 2/3rds of the difference between his or her pre-injury pay and the lower pay in the new, light duty job. This is known as Temporary Partial Disability or TPD payments.

2. There will be frequent meetings with the Vocational Rehabilitation Counselor, and you will be required to follow up on multiple job leads and report back to the Counselor at each meeting. Sometimes, life gets in the way and you may miss a meeting here and there or simply forget to follow up on a lead.

By themselves, each of these oversights may not amount to much, but you can rest assured that the Vocational Rehabilitation Counselor is keeping careful track of each infraction. Once she has enough “dirt” on you, in the form of missed meetings, failure to follow-up on job leads, etc, she will write a letter to the lawyer for the workers compensation insurance company, advising that attorney that you are out of compliance with the Vocational Rehabilitation Plan. In North Carolina, this will likely initiate a Motion by the defense attorney to cut you off of your weekly benefits. In Virginia, this will RESULT in your benefits being immediately CUT OFF as Virgina has what in my opinion is an unfair process on Defense Applications to Terminate Benefits. In VA, it’s cut off the benefits, ask questions and have a hearing later. In NC, at least you first get a Hearing before the benefits are actually cut off by the Industrial Commission.

The bottom line is that Vocational Rehabilitation is a process that is potentially dangerous to your case. If you fail to navigate it properly, the consequences can be devastating in terms of the value of your workers compensation claim.

Myth: If I Die as a Result of My Employer’s Negligence, my Family Gets a Lot of Money in a Lawsuit Against my Employer.

Death benefits. In personal injury cases, if someone dies due to the fault of another person or business, the family can file a wrongful death claim and receive wrongful death benefits. These benefits usually include the funeral and burial expenses, the loss of financial support your loved one would have provided, and certain personal damages such as loss of love and guidance.

In worker’s compensation cases, only certain benefits are available in the event of the death of an employee on the job. They are governed by workers compensation law and cannot be obtained by any lawsuit in a Court of Law. There is an extremely rare exception in North Carolina if the death occurs due to intentional misconduct by the employer, such that it knew that death would almost certainly result from their conduct in instructing the plaintiff in his or her job, only then can a lawsuit be maintained. Virginia has no such exception.

There is also the rare exception in Virginia where a large employer fails to carry workers compensation coverage, or where for whatever reason, even though there is negligence on the part of the employer, the claim is not compensable under VA Workers Compensation Law. An example of this might be where an employee who was known to be violent is negligently retained by the employer, and then goes on a violent rampage, shooting a fellow employee. If a Court rules that the matter is outside the purview of workers compensation law, then a lawsuit could proceed.

But generally, outside of these few exceptions, in workers compensation cases, if an employee dies while on the job, certain death benefits are paid to certain survivors and those benefits are strictly governed by workers compensation statutory law.

Generally, benefits are only paid in Comp cases to those who were dependent on the injured worker for support during his or her life, such as spouses and children. Unlike personal injury, the benefits do not necessarily follow intestate succession law.

In North Carolina, burial expenses are paid up to $10,000. Per N.C.G.S. Sec. 97-38 , The wage benefits (generally 2/3 of the decedent’s average weekly wage) are paid for 500 weeks to the decedent’s spouse. The payments for a disabled spouse are paid for at least 500 weeks. They terminate when the spouse (widow/widower) dies or remarries. The payments to the children are paid for at least 500 weeks or longer depending on when the child turns 18.

In Virginia, burial expenses are also paid up to $10,000. According to Virginia Code §65.2-512 , 2/3rds of the average weekly wages are paid to the spouse and dependents for up to between 400 and 500 weeks from the date of the injury, depending on the level of dependence.

Myth: Your employer determines whether you are an employee or an independent contractor.

Employee vs. Subcontractor. Generally, you must be an employee to qualify for workers’ compensation benefits. Please know that your employer does not determine your job status. The Deputy Commissioner assigned to your case will determine your job status, if necessary. Some employers try to say that their employees are subcontractors because companies that use only subcontractors don’t have to pay the subcontractors workers’ compensation benefits. They also don’t have to pay any payroll taxes, health insurance, or other benefits.

The test of whether you are an employee or an independent contractor is based on whether your employer controls your job performance. It is not based on anything you signed or agreed to. Some of the factors that indicate your employer does control your work include – your employer:

  1. Sets the hours when you work;
  2. Determines where you work;
  3. Provides you with the tools, equipment, machinery, and clothing to do your job;
  4. Pays you with a W-2;
  5. Determines your job assignments;
  6. Requires that you wear a company uniform while on the job;
  7. Requires that you follow company rules;
  8. Advises that you are subject to termination if you do not follow the rules;
  9. Many other factors that may indicate control by the employer.

Note that no one factor is completely determinative of the employee vs. subtractor status.

An actual subcontractor is someone like a painter who is hired by the general contractor, and the painter works alone, brings his own equipment, has numerous other jobs with other contractors to attend to, and shows up and leaves whenever he or she wishes. He is not subject to the whims and dictates of the company that employed him, because he doesn’t work for that company. He works for himself and the company hired him because he had a certain set of skills necessary to perform his job as a painter. He requires little or no direction. The painter is paid via billing or invoice, not by W-2.

Our accomplished workers’ compensation lawyer can explain whether you are an employee (and not a contractor) and help you prove your job status.

Myth: You can be fired for filing a workers’ compensation claim.

That’s not true. It is not legal for an employer to fire you for filing a workers’ compensation claim. Your workers’ compensation benefits should be covered – even if your employer closes his/her business for other reasons or files for bankruptcy. Your payments are made through the employer’s insurance carrier.

You can be fired if you fail to do your job due to poor work performance. All employees could be fired if your employer goes out of business.

In fact, in both Virginia, and North Carolina, if you are actually fired solely for bringing a worker’s compensation claim, there are certain remedies you can obtain against your employer.

That being said, retaliatory discharge can be very difficult to prove and the employer will almost always have some other excuse as to why you were fired.

Myth. You can’t afford a workers’ compensation lawyer.

Not true. Our workers’ compensation lawyer handles work injury claims on a contingency fee basis. That means we only receive compensation if your claim is successful. We receive a percentage of your recovery. There’s no fee for an initial consultation. You don’t have to advance any costs. Our incentive is your incentive – to obtain the best result possible so we both get paid.

In addition, any and all fees and costs in your claim must be approved by the Virginia Worker’s Compensation Commission or the North Carolina Industrial Commission, depending on where your case is pending. In Virginia, that is typically 20% of your settlement, and in North Carolina, 25%.

In addition, sometimes, if you are not yet under an Award, and we can come to an agreement with the other side, or we need to go to Hearing to get an Award for you, the Commission may approve some small fees that would be deducted from your ongoing compensation or the compensation that we obtain for you that is owed to in the past.

There’s more. When you hire a skilled workers’ compensation attorney, you have an experienced advocate on your side. We’ll ensure that your claim is filed promptly and correctly. We’ll explain what benefits you’re entitled to. Our lawyer works with your doctors and independent doctors when necessary to verify that you cannot work and that you continue to need medical care. We anticipate the arguments and strategies that insurance companies use to try to deny your benefits or terminate your benefits. We negotiate lump sum settlements. We’re skilled at all phases of workers’ compensation litigation.

At Joe Miller Law Ltd., our North Carolina and Virginia workers’ compensation lawyer understands the unique challenges of work injury claims. We represent all types of workers including construction workers, manufacturing employees, medical workers, first responders, restaurant workers, and all other manual laborers, professional workers, and service workers. For 30 years, attorney Joe Miller has helped injured and ill workers obtain strong recoveries. Our team is ready to help you now. Call attorney Joe Miller, Esq., at 888-667-8295 or fill out my online contact form to schedule a free consultation.

Our law firm does have a way for you to provide your details of your accident and injuries if you simply want to do that electronically from the comfort and safety of your home at any time of day or night. To utilize this service, simply click here: New Electronic Case Review.

We’ll get back to you, typically within 24 hours to provide our response as to whether your situation is one where we can provide you with legal representation. If we require more information, we’ll contact you and ask for that information in order to make that determination as to whether we are the best folks to assist you. If we ultimately determine that we cannot represent or assist you, we will not leave you high and dry. We’ll do our best to provide you with other resources to assist you.

Virginia Beach Office

5500-B Greenwich Rd.
Virginia Beach, VA 23462

Elizabeth City Office
(by appointment only)
507 E Main St #K
Elizabeth City, NC 27907

If you are looking at this site, you or a loved one has probably been hurt. If that's true, you've come to the right place. Helping people who have been hurt is what we do. In fact, it is all we do. Joe Miller Law is a law firm concentrating exclusively on representing people who are injured by the carelessness of others or those hurt on the job. We provide the highest quality legal services to people who have been seriously injured. We practice Personal Injury law and Workmens' Compensation law in both Virginia and North Carolina.