Posted on Tuesday, May 22nd, 2018 at 12:22 pm
According to the Centers for Disease Control and Prevention, nearly 9 people are killed and 1,000 people injured by a distracted driver – each day. Distracted driving is dangerous for three fundamental reasons:
Common examples of distracted driving including
Drivers who are tired or who are under the influence of alcohol are also unable to anticipate, control, and respond to emergencies.
A momentary lapse of even a second can be fatal or cause catastrophic injuries. A car travelling at 60mph is travelling 88 feet per second – which is about 4-5 car lengths.
The CDC reports that teenagers have an especially high likelihood of driving while distracted:
North Carolina enacted a strong texting while driving ban that applies to all drivers though it is especially tough on novice drivers. The law provides that adult drivers can speak on their cell phones while behind the wheel but they can NOT text while the car is in motion. The texting while driving ban applies to reading, sending, or composing a text message. It is not illegal to text if the car is stopped or is parked. Violators can be stopped by a police officer and ticketed even if they haven’t committed another traffic offense.
Drivers under the age of 18 (novice drivers) can’t text while driving. They also can’t use a cell-phone (even a hands-free phone). Novice drivers can also be stopped if they haven’t committed another traffic offense.
Bus drivers are also banned from using a cell phone while their bus is in motion – in addition to the texting while driving fan.
Texting while driving in Virginia
In Virginia, it is unlawful for any person to operate a moving motor vehicle on the highways in the Commonwealth while using any handheld personal communications device to:
Fines are $125.00 for the first offense and $250.00 thereafter.
Nearly 20 percent of all fatal car crashes are caused by a driver who is too tired – as reported by the AAA Foundation for Traffic Safety, The foundation also found that young drivers, those between 19 and 24, were the most likely to drive while fatigued. While nearly all drivers understand the dangers of driving drowsy, most drivers still drive – even though it puts their lives, the lives of passengers, the lives of other car occupants, and the lives of pedestrians at risk.
Drivers and occupants of the cars need to know when they need to avoid getting into the car if they’re tired or when to get off the ride if they’re getting sleepy. They’re no reason to risk a life to get somewhere a little faster. Drivers should plan to take regular rest stops. They should know where the hotels are where they can stop and sleep. Some of the signs of drowsy driving include:
Some recommendations for sleepy drivers include:
Some automakers who are aware of the dangers of drowsy driving are working to install technology that senses when a driver is tired. The cars sound alarms and even force the car to stop. Alas, that technology does not currently exist with any reliability. All drivers are responsible for any deaths or injuries they cause due to drowsy driving.
In many cases, when a teenager or young driver causes death or injury, the young driver is not the owner of the vehicle. Attorney Joe Miller Esq. can explain when you can also sue the owners of the vehicle in North Carolina under the “Family Purpose Doctrine.” The car owners are generally the people who have liability insurance to pay for all your damages if the driver caused your injuries or the death of a loved one. If there is not enough insurance to cover you claim, you may be entitled to payment for your pain and suffering and economic losses from your own uninsured or underinsurance policy.
In addition, if you were on-the-clock for your employer or your travel was connected to a business trip at the time of your accident, we can, of course, handle any Workers Compensation aspects to the claim as that is also a specialty of our firm. To make an appointment with an experienced North Carolina car accident attorney, please phone (888) 694-1671 or fill out the contact form.
Posted on Friday, May 18th, 2018 at 8:07 am
Drivers and passengers suffer many different types of injuries. In the worst cases, the car occupants die. In severe cases, victims may suffer catastrophic injuries such as a traumatic brain injury or a in injury to their spine. Spinal cord damage may result in partial or full paralysis. Catastrophic injuries can change the quality of accident victim’s life forever. Many victims suffer broken bones, nerve damage, cuts from windshield glass, and burns. Some victims suffer amputations, disfigurement, and scarring.
Most injuries are due to the car driver or passenger being thrown around the vehicle. Occupants may strike the windshield, the dashboard, or the steering wheel. Many car crash victims collide with other car passengers. Some victims are thrown from the vehicle. Occupants may also be hurt when their air bag inflates.
Depending on what type of injuries the driver or passenger suffered, victims need to get medical help from many different types of doctors. North Carolina and Virginia car accident lawyer Joe Miller works with the following type of physicians:
Some patients may need a medical device such as a prosthetic or wheelchair. Most car accident victims need to take prescription medications
Victims who suffer or think they might have internal damage are usually transported by ambulance or by emergency medical care to the closest emergency room. There, the doctors will conduct a battery of imaging tests, a physical exam, and an oral exam to help make a medical diagnosis.
Examples of internal injuries include:
Many patients with internal injuries often have to cope with internal bruises.
Most whiplash injuries occur when a front car is struck in the rear by a distracted or careless driver. It is often made fun of comedically in TV sketches; however, it can actually be a serious, and in some instances, permanent injury. Whiplash involves a tearing of the muscles and ligaments that surround the cervical spine.
The symptoms of a whiplash can take a day or few days to appear. So, anyone in a rear-end collision should avoid saying they feel fine until they’ve waited to see if they do have a whiplash. Most often, you will feel it when you wake up the next day. Common symptoms include:
A whiplash injury happens when the neck and head suddenly move backwards and then forward. (Hyperextension). This unusual motion puts a great deal of stress on the cervical/neck spine. Some car accident whiplash victims may even lose their memory due to the brain being slammed up against the interior of the skull. Whiplash injuries damage the muscles, discs, nerves, joints, and bones around the neck.
Physicians will conduct an oral exam and a physical examination. In addition to listening to you explain your symptoms, the doctor will feel or palpate your neck to see if there is muscle spasm. The doctor will see if anything isn’t aligned properly and determine your range of motion. The doctors may analyze your reflexes and how strong or weak your neck muscles and nerves exiting the spinal column in that area are.
Imaging tests include CT scans, MRI exams, and X-Rays – especially if they suspect a fracture. Whiplash injuries are graded depending on their severity. One of the most common effects of whiplash is a straightening of the spine or cervical lordosis. This can actually be seen on X-ray, and in some cases, digital motion x-ray. This happens when the muscle spasm is so severe it pulls the neck out of it’s normal curvature, and into a straight, “beanpole” configuration, where there is no curvature at all.
Self-help whiplash treatments include:
Cervical collars used to be a standard recommendation for whiplash but now there is some thought that these collars may actually weaken neck muscles.
Doctors may recommend the following treatments:
Most patients with just whiplash return to reasonably normal lives in a few months. In severe cases, some car accident victims may have a lifetime of chronic pain due to the scar tissue left over from the whiplash. Older victims usually have a more difficult time fully recovering than younger victims because the tissue is not as resilient. Women are also more prone to long-term whiplash damage than men.
Both North Carolina and Virginia are fault-car accident states. This means injured victims need to prove that another driver or another responsible party caused your injuries. Victims who can prove fault are entitled to payment of their reasonable medical bills, lost wages and pain and suffering. Proving fault and getting a just recovery requires the help of a respected lawyer. And of course, we know car accidents also occur while people are ‘on-the-clock’ for their employer. Because we also specialize in workers compensation in both Virginia and North Carolina, we can help with that portion of your claim as well. Joe Miller Esq. has been helping injury victims get justice for more than 30 years. To arrange a free consultation, please phone (888) 694-1671 or fill out my contact form.
Posted on Tuesday, May 1st, 2018 at 10:48 am
Car crashes can be frightening. It’s hard to know who to call, what information you need, what evidence is needed, or how to care for the injured. Certainly, nobody wants to get into an accident – but it helps to have a plan in case a crash does occur. Almost everyone will have an accident in their lifetime.
The best plan is to contact an experienced car accident lawyer as soon as possible. The attorney will explain your rights and guide you through each stage of the claims and litigation process. A second plan is to make sure you have your cellphone with you. The phone should be charged and should have access to the Internet. With your smartphone, you can review our blog for general suggestions.
When you speak with your lawyer, he can explain what information is not required to be exchanged. Generally, drivers shouldn’t discuss how the accident happened. NEVER admit any fault, or say you are “sorry,” even it sounds nice. That will be determined later. As a general rule, it’s not necessary to give your address and phone number, unless asked for by the police.
There are other precautions and plans drivers should consider. The car should be stocked with different items to handle different situations. A car should include:
When you get home, you should note the time and date of the accident and what the weather conditions were. Try to remember how fast each car was going and which directions they were going.
Proper planning helps determine who caused the accident. Planning helps verify your damages which include:
Attorney Joe Miller Esq. has been fighting for the injured for more than 30 years. He’s helped thousands of people get justice in both Virginia and North Carolina He’ll fight to get you the damage award you deserve through a strong settlement or a jury verdict. For hep now, please phone (888) 694-1671 or complete the contact form.
Posted on Friday, April 27th, 2018 at 10:20 am
Every car accident happens in a different way. How the crash happens is a strong indicator of which driver was at fault. For example, almost all read-end collisions happen because one car was struck in the rear by another driver who wasn’t paying attention. How the accident occurred also indicates what injuries are likely. Again, in a rear-end collision, the occupants of the car that is struck usually suffer whiplash and other soft-tissue injuries.
Attorney Joe Miller works with the police and investigators to determine how the crash occurred. If necessary, his team speaks to all relevant witnesses including the passengers in any cars and any bystanders. The good news is that in most circumstances, the rear-end collision scenario requires little investigation. Some of the other kinds may require more intensive investigation. What is most important is that you do not say something early on that you do not realize implicates you in some level of fault. In Virginia and North Carolina, that could mean the end of your case.
Most car crashes fall into one of the following categories:
Accidents happen for many other reasons:
In many car accidents, more than one person may be responsible. The owners of the car can be held liable if someone else used their car with their permission. In North Carolina, a Bar may be responsible if they served alcohol to someone they knew or should have known was intoxicated and who then caused an accident due to drunk driving.
Delay can hurt your case. It’s best to inspect the accident scene and speak to witnesses as soon as possible. Attorney Joe Miller Esq. has been fighting for injured residents for more than 25 years. He understands how to prove fault. He’ll demand the right amount of damages for your pain and suffering, medical bills, and lost wages. For help now, please call (888) 694-1671 or fill out the contact form.
Posted on Wednesday, April 4th, 2018 at 9:51 am
Most construction work, especially building new public or private structures such as homes and offices, requires that cranes be used to lift, lower, and move workers, equipment, materials, and tools. In addition, many large manufacturing operations require cranes to move heavy equipment and assemblies into place. Injuries from crane accidents can cause death, catastrophic injuries, broken bones, bruises, amputations, neck and back pain, electrocution, lacerations, damage to internal organs, and a host of long-term problems. Catastrophic injuries include spinal cord damage, paralysis, and traumatic brain injury – all of which can prevent a worker from ever having gainful employment again.
Each type of crane has its own dangers.
While there is no requirement that an injured worker prove fault, the best way to protect any crane accidents is to avoid accidents in the first place. We have represented severely injured workers hurt by falling debris from a crane. Some of the major reasons crane accidents happen include:
The Occupational Safety and Health Administration has numerous regulations that employers must follow to help protect employees and all workers. These guidelines are based on recommendations by engineers, employers, and many other professionals and businesses. Some of these guidelines include:
OSHA also has specific requirements for when crane operation is allowed and when it isn’t based on specific wind speeds – as well as other regulations.
The insurance company for the employer will fight to deny your claim, force you back to work too son, and limit the amount of your benefits. They’re all about the money. Attorney Joe Miller is all about the person. For more than 25 years, he’s helped workers get the wage loss and medical benefits they deserve. He works hard so that employees return to work when they’re ready – if they’re ever ready. He works with families who have tragically lost a loved one due to an injury on the job. For help now, please phone attorney Joe Miller at (888) 694-1671. You can also arrange to speak with him or provide information to evaluate your case through his online contact form.
Posted on Tuesday, March 27th, 2018 at 4:48 pm
Construction work is extremely dangerous. Some of the reasons are well-known. Some reasons change from site to site. Employees who suffer a disease due to constant exposure to chemical toxins and other hazards have the right to bring a North Carolina or Virginia worker’s compensation claim – depending on where they work. An experienced work injury lawyer can explain the exact requirements. One disease that can change or even end a worker’s life is exposure to silica dust.
Silica, also known as quartz, is a common mineral found at construction and industrial sites. It can be found in the soil, concrete, rocks, sand, granite, and landscaping items. Silica dust is typically created through drilling, grinding, or cutting. Silica is also present in cement, mortar, and brick. The dust can spread through mixing cement, cutting stone, pressurized air-blowing, using a jack-hammer, working with power-chipping tools, demolition work, and other means.
The particles can be 100 times more minute than sand. The dust, which is almost impossible to see, can easily enter a worker’s lungs. Damage may include respiratory disorders, lung cancer, COPD (chronic obstructive pulmonary diseases) and kidney failure. Exposure to enough silica can cause silicosis, which can result in lesions, inflammation, and scar tissue buildup in the lungs. In the most serious cases, exposure to silica dust can be deadly.
Often, diseases caused by exposure to silica take years to appear. In most cases, these diseases occur after years of exposure to respirable crystalline silica. Many workers don’t even realize that they are breathing it or that is has landed on their skin, clothing, footwear, and hands.
Workers who are affected by silica exposure include foundry workers, stoneworkers, miners, grinders, bricklayers, and sandblasters.
According to OSHA (the Occupational Safety and Health Administration), about two million people have been exposed to respirable crystalline silica. OSHA requires that employers take protective measures to limit exposure to this unhealthy material. Employers should inform their employees about the risks of silica if they know or have reason to know that silica levels are above specific minimum levels. Employers should work with professionals who can determine how much silica is present by taking samples and conducting tests.
Employers should use dust controls and safe work methods to protect workers. If controls and safety methods aren’t sufficient, the employer should provide respirators to their workers.
OSHA also requires that employers:
Unlike workplace accidents, occupational illnesses normally develop over a long period of time. Many workers don’t realize they’ve been exposed until they start to have serious health issues. Generally, a worker is eligible for worker’s compensation benefits in North Carolina or Virginia based on an occupational disease if:
Some disease such as lung cancer can be caused by other causes. Smoking is a common reason may people get lung cancer. That the worker could have gotten the disease from another source does not automatically mean his/her claim will be denied. Workers who suffer lung disease through exposure to substances that are known to cause the disease can still recover worker’s compensation benefits. Defense lawyers may, though, try to blame your medical problems on other causes, such as smoking, but only if you actually smoked.
Workers who suffer a work-related occupational illness that prevents them from working are entitled to 2/3rds of the average weekly wage while they can’t work or average weekly wages up to 500 weeks as well as lifetime medical benefits in Virginia.
In North Carolina, a worker with confirmed silicosis or asbestos is assumed to be disabled for the first 104 weeks. Whether the employee will be entitled to those benefits beyond 104 weeks depends on whether the Industrial Commission determines, or the Parties agree, that the worker is, indeed, disabled, but in no case can the worker receive more than a total of 300 weeks or workers comp checks for the silicosis.
Exposed workers are also entitled to have their reasonable and related medical bills paid by workers comp insurance even if they are still working. Families are entitled to death benefits if a worker dies due to an occupational illness or disease.
Statute of Limitations in Virginia for Silicosis. The most important thing to be aware of regarding silicosis are the time limitations for filing a claim. In Virginia, as soon as you become aware of your diagnosis of silicosis, you have TWO YEARS to file a claim. This time limit applies whether the diagnosis preventing you from working or whether you had any symptoms whatsoever.
In addition to that time limit there is another one in Virginia: If it has been many years after you retired that you find out about your diagnosis, you are unfortunately out of luck. You must file your claim within FIVE YEARS of your “last injurious exposure” to silica dust.
Statute of Limitations in North Carolina for Silicosis. North Carolina also requires employees to file within two years of being advised of a diagnosis of silicosis; however, to recover for disability or death, there must have been a minimum of two years of exposure to the dust in North Carolina, unless that exposure was more than 10 years before any other, additional exposure elsewhere.
North Carolina has also instituted an extensive system to make it easier for employees who believe they are being exposed to silicosis or asbestos to undergo examinations by a physician from an advisory medical committee set up by the Industrial Commission, which examinations are to be paid for by the employer. These examinations can up to three times within two years of the initial claim of silicosis or asbestosis, unless the parties agree on compensation.
Some common examples of respiratory/lung occupational illness, in addition to silicosis include:
The aforementioned COPD is also a well-known work-related disease that causes bronchitis, emphysema, and death.
Some of the deadly and life-changing toxins and chemicals that cause occupational illnesses of different types include:
The chemical manganese can also cause serious health problems. Welders are likely to be exposed to manganese.
Attorney Joe Miller Esq. has more than 25 years-experience fight for workers who were injured on the job or who suffered an occupational illness. He’s helped thousands of employees get justice. To learn if you have a case and to get the strong recovery justice demands, please call his office at (888) 694-1671. You can also reach him through his contact form.
Posted on Tuesday, March 6th, 2018 at 11:14 am
If you or someone you love is disabled from a work injury, the disabled worker can receive 2/3rds (.66667) of their average weekly wage loss benefits on a weekly basis for up to 500 weeks. This is called temporary total disability or TTD. In some very narrow categories of permanent and total disability injuries, that can be extended to lifetime payments, often well beyond the 500 weeks.
Many employees prefer though, to settle their case rather than continue to receive weekly checks. As part of the settlement, they will ask for some or all of the future wage losses in a lump sum benefit as well as an estimate of the value of their future medical care, rather than continue to receive their wages and medical care from the workers compensation carrier on a weekly basis. That way, the employee has immediate access to their funds and can also invest the funds and even pass the money on to his or her heirs. If the worker gets another job or dies, then the payment stops and there are no funds to pass on to one’s children or grandchildren. Experienced North Carolina or Virginia worker’s compensation lawyers understand how to properly value your case so that you or your loved one gets all that he/she deserves.
The amount of the lump sum that needs to be calculated as to your future comp payments is essentially 2/3rds of your average weekly wages up to 500 weeks; however, there may be initial discounts to consider if it is anticipated that you will return to work sometime before the end of the 500 weeks. In addition, there is no guarantee that you will live for the entirety of the 500 weeks. You could, in fact, die from unrelated causes and if that happens, or if you return to work at the same or higher wages, then the weekly payments would stop.
Another consideration is that if you get paid in a lump sum, in North Carolina, your calculation as to future payments must be discounted because you can invest your settlement funds into interest bearing accounts. This is called figuring out the PRESENT VALUE of the future amounts.
We typically do not do this in Virginia, because Virginia provides workers under Awards with the right to COLA payment increases whereas North Carolina does not. Do in Virginia, if we simply take out the anticipated future COLA payments when figuring out the future lump sum amounts, then any gains are really offset by inflation, so there is no discount rate needed.
North Carolina, on the other hand, does not provide COLA as part of its compensation scheme, so you give nothing up when figuring up future lump sums. So you must therefore reduce to present value.
Present Value and the Discount rate.
The discount rate is a way of figuring what the present value of your future income should be in North Carolina. For example, if your Average Weekly Wage (AWW) is $900.00, your compensation rate is 2/3rds of that, or $600.00. If you elect to be paid weekly over 500 weeks, you will ultimately receive $600.00 x 500 weeks= $300,000.
If the interest rate is calculated at three 3 %, the present value of your money is approximately $260,500.00. In other words, if you invest $260,500.00 at 3 percent yearly interest, you will generate $300,000 in money in 500 weeks. In this example, your $300,000 in income is being discounted about 13% down to the $260,500 figure.
While financial experts understand how much money a settlement will earn if it obtains, for example, three percent per for 30 years, the experts don’t know whether the interest rates may change over time.
Generally what is done is that the parties argue and usually compromise over the discount rate during negotiations. The defense obviously wants to pay less so they will use a higher discount rate, where the injured worker’s attorney will argue that while higher interest rates are available, the investments that produce them are often more risky and volatile, and less safe. The injured worker’s lawyer will argue that something safe would be something like treasury bonds or other such instruments, which typically pay something like 3-4%, depending on the year. Defense attorneys will argue for investments in the 6-8% range or higher.
In both North Carolina and Virginia, while most employees are limited to TTD payments up to 500 weeks, that is not the only component that goes into figuring up the value of a potential settlement. There is also the lifetime medical award, and this is where it is important to understand your life expectancy. For instance, if you are on certain expensive prescription medications for your injuries, and it is likely you will have to remain on them for the rest of your life, this could be a huge component and “exposure” to the workers compensation carrier which may motivate them to settle your claim.
As an example, let’s assume you are a 55-year-old male injured worker in Virginia. Using the table for Virginia below, we are entitled to assume your life expectancy is 24.3 years. Let’s say that you are taking an expensive prescription that is costing the comp carrier $500.00 per month. That translates to an annual cost of $6000.00 x 24.3 years, which is a future prescription cost of $145,800.00. Along with future potential surgeries, or other treatment as recommended by your doctor, this future medical treatment can form a significant component of any demand to fully and finally settle your claim.
North Carolina uses the following life expectancy figures for worker’s compensation cases (just the first few years and then increments of five years are provided):
Virginia uses the following life expectancy figures (for both genders, for just men, and for just women)
There are other factors that are crucial in determining the amount of any full and final settlement. Some of these factors are:
After the future TTD estimates and Future Medical costs are added up, we will typically then present a figure that we request for our demand in the case. Other components that might go into the demand are future medical travel costs, future x-rays, MRI’s or other medical monitoring. We also always ask that the carrier pay any outstanding, related medical costs that have not yet been paid. In addition, ongoing weekly payments typically continue until issuance of the Settlement Order by the Virginia Workers Compensation Commission or Industrial Commission.
Note that if you are a current Medicare recipient, ALMOST NONE OF THIS APPLIES as you will have to engage in a MEDICARE SET ASIDE (MSA) and Medicare will have to approve the MSA amounts in order for you to receive any kind of medical settlement. In these circumstances, your future medical costs will be calculated by one of any number of companies who will submit a report estimating the cost of your future, injury-related care to Medicare for approval. You or your attorney will have no control over determining those estimates. The only items that will fall outside the purview of the MSA are items that would not be covered by Medicare. For instance, certain prescriptions are not approved by Medicare for treating pain.
We recommend that you do not try to negotiate your lump sum full and final settlement or clincher on your own. You can’t renegotiate the lump sum payment if you make a mistake. Any worker considering a full and final settlement (called a clincher in North Carolina) should consult with an experienced North Carolina or Virginia workers’ compensation attorney. You may be wildly underestimating what your case is worth.
Do not settle your claim without speaking to an experienced work injury lawyer. Attorney Joe Miller Esq. has been helping injured workers get justice for over a quarter century. He understands how to negotiate and what wage and medical benefits you are entitled to. To learn what your rights are, please call lawyer Joe Miller at (888) 694-1671. You can also reach him through his contact form.
Posted on Thursday, March 1st, 2018 at 4:01 pm
The amount of wage benefits injured workers receive is based on the following calculation/formula:
2/3rds (.66667) of your average weekly wage (AWW) times the number of weeks you’re entitled to benefits.
The AWW is determined in one of the four following ways:
Workers in North Carolina can only receive the state maximum. The maximum generally increases each year. The maximum North Carolina benefits, after the 2/3rds time AWW calculation, for the past 10 years are:
The state maximums for Virginia are:
In both North Carolina and Virginia, the maximum payout is for 500 weeks. Both states also have no lifetime limit for reasonable and necessary medical bills. Both states also allow a mileage allowance for traveling to see your physician. Only Virginia has a COLA (Cost of Living Adjustment). North Carolina unfortunately does not.
Your AWW includes overtime pay, bonuses, and other relevant income. Generally, health insurance benefits are not included in your wage loss benefits. However, the employer’s insurance company should pay for your medical bills that are necessary because of your injuries.
You receive the 2/3rds (.66667) of the average weekly wages if you have a temporary disability for up to 500 weeks unless and until you can return to work. This is called temporary total disability. (TTD) Of course, this is assuming that you have an Award or Accepted Claim. If you do not, then you will have to prove your claim at a hearing.
You receive 2/3rds of the AWW for a preset number of weeks if you have a permanent disability to specific body part. This is called permanent partial impairment (PPI). But in no event can you get more than the maximum of 500 weeks, unless are declared permanently and totally disabled.
Some adjustments apply if you can return to work with work restrictions and are making less money than your AWW. Then, you are entitled to 2/3rds of the difference between your AWW and your current, “light duty” wage. This is called temporary partial disability. (TPD).
Get all the work injury compensation you deserve. You have the right to be paid if you can’t work due to a workplace injury and you are an employee. Don’t let your employer short change you. Attorney Joe Miller Esq. fights for every dollar you deserve. When you’re not working, you need money to pay your bills and manage your life. To speak with a respected North Carolina and Virginia work injury lawyer, please call attorney Joe Miller at (888) 694-1671. You can also reach him through his contact form.
Posted on Monday, February 26th, 2018 at 10:42 am
Many employers will argue that emotional injuries are insignificant or even frivolous. Accident victims should understand that they DO have the right to seek compensation if they need to see psychiatrist, psychologist, or any type of mental health counselor. It is easier to be approved for emotional distress wages and medical care, but not essential, if your emotional distress accompanies a physical injury.
Workers who suffer broken bones, back injuries, spinal cord damage, or other physical injuries often quite justifiably worry about whether their injuries will heal properly. Accident victims often suffer anxiety and depression about their job prospects and how their injuries will affect their ability to perform even routine tasks like sleeping, walking, and eating. Workplace accident victims often worry about how their pain and recovery process is hurting their spouse and children. Not to mention post- traumatic stress disorder (PTSD) if the injury was violent, such as an attack or fall from heights or an amputation.
In some cases, such as when a worker suffers a traumatic brain injury, it is virtually a given that the worker will need emotional counseling to address issues of confusion, memory loss, an inability to speak, extreme anger, and other difficulties.
In other cases, such as workplace violence, there may be no physical injury at all. If a worker observes someone being killed, comes upon a horrifically violent scene, or if a car nearly hits the worker – then these memories can vividly play over and over again in the worker’s mind, like an insane “loop,” interfering with the worker’s sleep and destroying all emotional stability, in some cases even causing hallucinations. This may justify the need to get psychiatric help and could lead to a diagnosis of post-traumatic stress disorder (PTSD).
While many workers may think it is “macho” to tough out their injuries and the reactions to them, experienced workers’ compensation lawyers explain that getting professional help is often the best course. Speaking with psychologists and other professionals may even quicken the date when you can return to work, or in some cases, protect you from prematurely being thrown back into a work environment which is full of the very “triggers” that must be avoided in order for you to heal from the PTSD.
Emotional injuries are harder to prove than physical injuries. Physical injures can be verified by X-Rays, MRIs, CT scans, and other diagnostic tests. Often, there is visual evidence in the form of bruises, scarring, redness, or other unsightly conditions.
Emotional injuries normally can’t be seen or tested objectively, although some aspects of an underlying condition, such as memory loss or other cognitive deficits can be measured by testing. Most emotional injuries are observed. They require a review with a mental health professional who will need to document the basis for the emotional injury. The psychologist, psychiatrist, or other emotional health provider will normally complete a report which addresses the following:
The emotional health doctor or counselor should be able to document:
The doctor should prepare a detailed medical report indicating the precise diagnoses, whether the diagnoses are connected to the work injury and come up with a treatment plan, and the worker’s prognosis.
In general, an employee can’t claim emotional distress if their negative emotional state is due to standard work conditions. For example, if an employer calls in an employee for a work review or assigns a worker to a new job task, the review or assignment may cause the worker to become quite nervous. Still, reviews and work assignments are routine parts of any job. An employer is not normally going to be required to pay for the worker’s need to seek emotional counseling for standard work conditions.
Please note: This article does not address other remedies that are outside the scope of our practice, such as discrimination or other claims to the EEOC due to a “hostile work environment.” For any such claims, we suggest you consult with a competent labor and discrimination attorney.
The employer’s insurance company may send you to their own doctor who will conduct their own examination. In Virginia, if you are given a psychiatric referral, you get to pick from a panel of three doctors. Often it is up to your attorney to first make sure that everyone on the suggested panel of psychiatrists or psychologists actually accept workers compensation patients. Unfortunately, most do not, so this is very important.
Typically, a key difference between a psychiatrist and a psychologist is that the psychiatrist can prescribe medications while the psychologist cannot write prescriptions. In terms of proving your case, it is very important that you see AT LEAST a psychologist. A licensed professional counselor or nurse practitioner may be able to treat you, but they cannot offer opinions in your case about any psychiatric condition or whether it is connected to the work accident. So if you are seeing such a counselor, and you want to prove your psychiatric diagnoses are connected to your work injury, you will need a referral to a psychologist or psychiatrist.
In addition, if you have suffered a brain injury and you are attempting to prove that you are suffering from psychiatric conditions connected to that injury, you will need a psychiatrist (who is an M.D.) or other medical doctor such as a neurosurgeon to testify that your psychiatric conditions are connected to that brain injury. A psychologist can testify about your diagnosis, but he or she is not allowed to testify that your psychiatric condition is related or a result of a physical brain injury. They CAN testify that you are suffering from a condition that occurred as a result of your reaction to a traumatic event, such as an attack or severe fall. But that is not the same as saying that your psychological diagnosis is the direct result of a physical injury. For that, you need an M.D.
If you can’t work due to emotional difficulties relating to your work injury, be wary of nurse case managers trying to convince your health care providers to return you to work before you are ready. We have found that on many occasions, the residual emotional issues relating to a traumatic injury are the last to disappear after a bad injury. Many times, it is the psychiatrist or psychologist who is the only health care provider who can protect a severely traumatized worker from being thrown back into a work environment that he or she is nowhere near ready to handle.
Attorney Joe Miller Esq. has been fighting for North Carolina and Virginia workers for more than 25 years. He’s helped thousands of work injury victims get justice. He’ll work aggressively to help you get all the wage loss and medical coverage you deserve. Call his office now at (888) 694-1671. You can also reach him through his contact form.
Posted on Thursday, February 22nd, 2018 at 10:04 am