What is Light Duty Work in North Carolina and Virginia Workers’ Compensation Cases?

Posted on Wednesday, January 10th, 2018 at 11:44 am    

Light duty work is a legal term of art that you should review with your North Carolina or Virginia workers’ compensation lawyer. “Light Duty” typically means that your authorized treating doctor has released you to some kind of work with physical restrictions, but not your usual job.  An example might be “no lifting over 10 lbs, no bending, stooping, no climbing ladders or working at heights.” If you work as a roofer, that is going to knock you out of your job, at least for now.  Alternatively, if your injuries and restrictions are more severe, you may be restricted to a sedentary or seated job.

What happens to your case as a result of that light duty release depends on many, many factors that are extremely complex.  In many instances, particularly in Virginia, a light duty release by your doctor should be treated like a hydrogen bomb that has just been dropped on your case. You could be cut off of all benefits immediately, if you are not already under an Award for Comp Benefits that has finalized.  

Accommodation by the Employer-The Kiss of Death

Oftentimes, employers will say that they simply do not have any such thing as “light duty.” We will discuss your obligations in that regard soon. That is where the Award issue becomes important; however, if the employer decides to accommodate your restrictions by giving you a “made up” job, then it does not matter whether you are under an Award or not. If your doctor is made aware of the exact type of light duty work you will be doing and the doctor states you can do the work as long as it meets his medical restrictions, then you need to try to do the light duty work. Failure to try the work may result in the loss of your benefits AND the loss of your job.

We are sorry to say that most of the time, accommodation of light duty work by the employer is usually a veiled attempt to harass you and make you trip up and do something insubordinate, so that the employer can fire you. Then, your workers comp case is basically over. Unfortunately, there is no mechanism under the law to do anything about it. You basically have to tough it out unless and until your doctor pulls you back out of work completely.

That is not to say that all employers are out to get you. Some legitimately do want to help you. It is said that allowing you to come back to work on light duty helps you in the following ways, for example:

  • It helps the employee stay focused on returning to work. This can help the injured worker mentally.
  • It helps the worker adjust to the physical demands of work as he/she is getting medical treatment
  • If allows the worker an ability to enjoy his/her job and the company of co-workers.

As an experienced work injury lawyer, however, I must tell you that more often than not, employers often try to use light duty work as a way not to help you, but to try to cut off your benefits. If you fail to follow proper procedures and the recommendations of your doctors as to whether you can do light duty work – you may lose your job and your benefits.

When the employer does not have light duty work or cannot accommodate your restrictions

As discussed previously, many times, the employer will not have anything for you to do within your restrictions. The reason for this is that by returning to the job site, especially if you are in a delicate state, you present a risk to the employer and the workers compensation insurance company of re-injury on the job. Then the employer will have to deal with a whole different injury date and possibly additional injuries. If this occurs, there are two completely different scenarios that can occur, which we will now explain.

Scenario A: You have a finalized, Open Award in Virginia or an Accepted Claim in North Carolina

This is where your Award comes in. If you have a Virginia comp case, whether or not you are under a finalized, ongoing, or Open Award (more than 30 days have passed since entry of the Award) when you are released to light duty will dictate what happens next.

If you are under a finalized Award which says that you are to get comp checks every week without an end date (i.e. Open or ongoing checks), this means that the Virginia Workers Compensation Commission has proclaimed that you have a right to those benefits unless and until the employer can show that you are capable of returning to your pre-injury work. So your checks will not stop.

What may happen at that point is that the comp carrier may hire a vocational rehabilitation expert to attempt to find you work within your restrictions. Be aware that some of these folks can be extremely aggressive. You must be careful, because typically their real job is not to find you a job but to have you trip up and miss meetings and fail job search requirements so that you can be cut off of benefits.

But sometimes, particularly if your injuries are severe, you are older, and your education level is limited, the workers compensation insurance company realizes that vocational rehabilitation will likely be a waste of time and your checks may simply continue until such time as either the parties can come to a settlement agreement, your doctor releases you to full duty, or your 500 weeks of benefits expires.

In North Carolina, a claim is accepted when the employer files a Form 60, indicating you are entitled to benefits; however, that Form 60 does not have the same force that it has in Virginia. Yes, if you are released to light duty, you are likely to continue to receive benefits if there is a Form 60 filed by the employer; however, we always counsel our North Carolina clients who are receiving such benefits to search for a minimum of 3-5 jobs per week within their physical restrictions and skill set, if the employer will not accommodate your restrictions. This is because if something comes up in your case, you may have to prove that you were entitled to these ongoing benefits.  And an injured worker on light duty in North Carolina is technically only entitled to those benefits when he or she can prove that they have sought work within their restrictions but have been unable to find such work.

Scenario B: You do not have an Award in Virginia or your claim has been denied in VA or NC

If you are not under a finalized, ongoing, or Open Award for benefits in Virginia, it may be for any number of reasons. The most common reason is that you simply were not aware that you were required to get one. Many employers will pay you benefits voluntarily while your authorized treating doctor is holding you completely out of work. That is, until the day when you are released to light duty. The unfortunate reality is that when that day comes, you may suddenly discover that your employer has cut you off of benefits. How can they do that?

You will recall above that we said that an ongoing or Open Award for benefits issued by the Virginia Workers Compensation Commission is a proclamation that you are entitled to ongoing weekly checks and medical benefits. The checks will continue unless and until you return to your pre-injury work.

Well, here, there has been no such proclamation issued by anyone. You therefore have no rights and the workers comp insurance carrier is not under any obligation to do anything for you.

Your only remedy at that point is to file a Claim for Benefits and ask for a hearing and also vigorously market your residual capacity to work. The idea is that when you get to the hearing, you will be able to prove to the Commission, without any shadow of a doubt, that you have sought work—we recommend a minimum of 7-10 jobs per week–within your physical restrictions and have been unable to find any such work.  You must present this evidence at the hearing in an organized, overwhelming fashion. If you do not do this, the Deputy Commissioner will likely reject your evidence and not Award you benefits.

If you do present the evidence properly and the Deputy Commissioner decides that you adequately looked for jobs, you will be awarded backdated workers compensation checks from the date that you can first prove that you do adequately looked for jobs within your restrictions and skill set.

A few scenarios to be aware of

  • Your employer may give you a light duty job that is humiliating or incredibly boring in the hope that you will quit or refuse to do the work. You need to keep working at the job until a formal decision is made by the state workers’ compensation hearing officer or commission.
  • It is important that you communicate with your doctor and with your employer about your physical injuries and what tasks you simply cannot perform.
  • The employer may tell you that light duty work is available but when you show up to the job, the employer just wants you to perform your old job. Or you may be given a light-duty job but then told you need to help out with the full-duty job tasks. If this scenario happens, you should review your rights with your lawyer and inform your doctor. If your doctor hasn’t released you to full-duty work, then you shouldn’t be forced to do the full-duty job
  • Some employers may look for any excuse to discipline you and then claim you are being discharged for disciplinary reasons and not because of your work injury. You should review this type of behavior with your North Carolina or Virginia work injury lawyer immediately.
  • If you return to work on light duty and have trouble doing your light duty job, be very careful to pay attention to exactly what tasks are causing you trouble so you can tell your doctor when you return. For instance, if you have a leg injury, does it hurt your leg when you attempt to climb stairs? This would be something you would want to report to your doctor. If the problem is severe enough, the doctor may add a “no stairclimbing” restriction.

 

Talk with a trusted North Carolina or Virginia workers’ compensation lawyer now

Understand what light duty work really means and the consequence of being released to light duty. You must make sure that you always know what your physical restrictions are. Depending on the status of your claim and the inclinations of your employer, a release to light duty can either be a destructive atomic bomb, or your benefits may continue uninterrupted.  An experienced workers comp lawyer can explain when and how your release to light duty will impact your case. Your lawyer can also make sure your doctor is fully aware of what your return-to-work scenario looks like, so that he or she knows what is being approved for you to do. For strong advocacy, please phone attorney Joe Miller Esq. at (888) 694-1671 or use his contact form. He’s been helping injured workers get justice for over 25 years.

 

What Happens at a Workers’ Compensation Deposition?

Posted on Wednesday, January 10th, 2018 at 11:41 am    

In North Carolina and Virginia, may times the insurance company for the employer will want to take your deposition. A deposition is on oral question and answer session which is recorded so that it can be transcribed and the discussion can be preserved. It is done under oath, just like you were in the courtroom. In most work injury depositions, the insurance company attorney will question the worker and your worker’s compensation attorney will prepare you for the deposition. Preparation means explaining what questions the employer’s lawyer will likely ask so that you aren’t surprised when the real deposition takes place and also going over some general tips to help the deposition go smoother.  By reviewing the deposition with you in advance, and using the attorney’s experience to prepare you for the deposition, the lawyer will also explain many practical suggestions so you can express your answers in a way that can best help your cause.

In most depositions, that lawyer for the insurance company is polite and the questions are fairly straightforward. Occasionally, that is not the case. Either way, you should treat the deposition as a business meeting. No matter how nice the defense lawyer is, he or she is not your friend. Defense lawyers will try and derail your case, if given the opportunity to do so.

Where and How Does the Deposition Take Place?

The deposition normally takes place either at your lawyer’s office or the law office for the attorney for the insurance company/employer. The questions and answers are usually in a lawyer’s conference room and just you, your lawyer, the insurance company lawyer, and the stenographer or court reporter are present. Occasionally, particularly if your lawyer will also be deposing your supervisory personnel, a company representative may be present. Sometimes, albeit rarely, the insurance adjuster is present, but they will not be able to ask you any questions under oath. Only the defense lawyer and your own attorney can do that.  

If you don’t currently have a lawyer, we strongly suggest retaining an experienced worker’s compensation lawyer before heading into a deposition. Please do not do that on your own. You may very well risk causing tremendous damage to your case.

Remember, it does not cost you any money up front to hire a workers compensation lawyer. You will not have to stroke a check. Attorney’s fees in workers comp cases are controlled by the Industrial Commission in North Carolina or the Virginia Workers Compensation Commission.

In addition to thorough preparation of you prior to the depo, your lawyer may object to some of the questions that are being asked.  You lawyer can also ask you questions that can help clarify your answers once defense counsel has finished his or her line of questioning.

When you answer the questions, you will be under oath. Testifying under oath means that you swear to tell the truth and to answer the questions to the best of your ability. The court stenographer is the person who will swear you in.

What is the purpose of the Deposition?

The deposition of a Claimant or Plaintiff in a Workers Compensation Case Generally has Four Purposes:

  1. To obtain information from you directly about the facts of the accident, your treatment and injuries, witnesses you may have, and your course of treatment.
  2. To “lock you in” to your testimony in relation to these things under oath, so that you cannot say something different at hearing. If you do, you will be confronted with your deposition statement by defense counsel on cross examination.
  3. To determine what kind of witness you are. Are you someone the Deputy Commissioner is likely to find credible?
  4. As a tool to help the defense attorney evaluate the claim and make recommendations to the insurance adjuster about whether to make offers of settlement prior to hearing, whether to “cave” and agree to the Award, or whether to gather the troops and push on to hearing.

The types of questions that will be asked at the deposition

The insurance company lawyer will generally ask you the following:

  • Questions about your background. Sample questions include:
    • When were you born?
    • Where do you live?
    • Tell me about your education – what schools did you attend?
    • What is your work history – which jobs have you had, where, and for how long? What kind of work did you do in those jobs?
    • What were the physical requirements of these jobs?
    • Do you have any criminal history record?
    • Have you filed any prior worker’s compensation claims?

  • Questions about prior injuries? Here, the insurance carrier lawyer will try to see if there’s a way to argue that your current injuries were related to a prior accident – either at work or away from work. If you answer yes to these questions, the attorney for the employer will ask follow-up questions about when the injuries occurred, what doctors you say, what treatment you had, whether you had to stop working, and whether the injuries resolved.

  • Questions about the workplace accident? In North Carolina and Virginia, you do not have to show your employer is at fault for the accident. Fault is not an issue. Still, the insurance carrier lawyer will ask questions about the accident to try to understand how the accident caused your injuries. If your injuries or a workplace illness occurred over time vs at a specific point in time, you may not have a case.

And even though the employer does not have to be at fault, sometimes there needs to be a defect if you were injured in a way that is a common way to get hurt. For instance, in Virginia, if you simply missed a step while walking down a set of stairs, that is not a risk of employment and you have no case, unless your shoes were slippery from work materials, you were rushed with work items in your hands, or the step on which you slipped was somehow defective. The bottom line is that in a contested case, it is very important to go over these facts with your attorney so that you do not inadvertently say something that could ruin your claim.  

In North Carolina, there are somewhat stricter provisions that generally require some type of slip, trip or fall—something unusual, that must occur in order for you to have suffered an “accident.” This will be explored by defense counsel, particularly if you have a contested claim.

  • Questions about your medical treatment. Here, the lawyer for the employer will go through each and every hospital you went to, each doctor you saw, each medication you took, and each medical device you needed to use. You generally do not have to remember exact dates, although it is important to have a decent idea of the sequence of treatment.

What is often most important here is what you told your doctors or other health care providers about your injuries. If there are inconsistencies in the statements you made to doctors and hospitals about how you were injured, or which body parts you injured, then these inconsistencies, if not properly explained, can ruin your case. A good workers comp attorney will point out any of these inconsistencies and go over them with you in preparation for the deposition so that they do not derail your claim.

The defense lawyer will begin questioning with the first treatment and then go through your treatment, usually in chronological order or by physician, until the current time. He/she will also go over your long-term prognosis and how you are feeling now, as well as your plans going forward.

  • Questions about your current work ability. The lawyer will ask many questions about your current ability to work, your limitations, and your difficult working. Sample questions might include:
    • Have you tried to return to work?
    • What is stopping you from working?
    • Do you think you could work if the employer changed your work conditions?
    • For your particular job, the lawyer will likely ask questions about your functional limitations such as your ability to lift or push above certain weight limits, your ability to sit for long stretches of time, and other questions based on current work injuries.

Some common deposition ground-rules

Some of the guidelines your worker’s compensation lawyer will go over with you before the deposition are:

  • Wait until the full question is asked before your answer. You need to wait for several reasons:
    • Your lawyer may object to the question. You don’t want to answer a question which may hurt your case.
    • By waiting you make sure you understand the question and that you don’t answer to quickly. Depositions aren’t a race. You should think about each question before you answer it.
    • The court reporter needs to type the answer.
  • Don’t volunteer. You should only answer the question that was asked and your answer should be as short as possible. The attorney for the insurance company is not your friend. He/she is looking for information to use against you. The less you say at the deposition the better. The insurance company lawyer can always ask another question if he/she wants to find out more. Your lawyer can ask questions too to clarify any apparent confusion. As someone who has been doing this for 27 years, and attended thousands of depositions, I can tell you this: the more you say, the longer the deposition will last.
  • Understand that you need to give an oral response. A nod of the head, a mumble, or pointing can be misconstrued. An oral yes, no, or verbal answer makes clear to everyone what you meant. Remember, your answers may be used at the hearing or in legal briefs so your answers need to reflect what you really meant. And do not say “uh-uh” or “uh-huh”. Yes or no makes it much clearer.
  • Don’t guess. Make sure you understand the question. Also make sure your answer is accurate. If you don’t know then it is perfectly Ok to say that you don’t know or you cannot recall, as long as that is not the answer to every question.  
  • Be alert to questions that might violate your attorney-client privilege with your lawyer or are repeated questions because the defense attorney wants a different answer. If your lawyer thinks a question violates this confidentiality requirement, your lawyer should object.
  • Keep calm. The insurance company lawyer is trying to see what kind of witness you will be at the hearing. The more you appear relaxed, confident, and credible, the better chance you have of settling your case. If you easily rattle, or appear angry, the insurance company may be more likely to consider requesting a court hearing.

After the hearing, your lawyer will get a copy of the deposition transcript. The lawyer will review the transcript with you to confirm that it is accurate – or that changes should be duly noted.

Make the call to an experienced Virginia or North Carolina workers’ compensation lawyer today

Preparation is the key to most work injury cases. The more you and prepared and the more your lawyer has all the necessary information, the better chance you have of winning your claim. A skilled worker’s compensation lawyer like Joe Miller has handled many depositions. He can firmly guide you through the deposition process. He’s helped thousands of injured workers. For help now, please phone lawyer Joe Miller at (888) 694-1671 or use his contact form to schedule an appointment.

Workers’ Compensation and Post Traumatic Stress Disorder (PTSD)

Posted on Wednesday, January 10th, 2018 at 11:37 am    

Post-traumatic stress disorder is a long-term mental health reaction to witnessing or experiencing one or more traumatic events. While many people recover from accidents or other forms of trauma as their injuries heal or with time – for some people the trauma can prevent them from working, from functioning and from enjoying life. For example, some people who have an extremely violent car accident may be fearful of ever driving or even being a passenger in a car again.

Workers’ compensation doesn’t just apply to physical injuries. Workers who can’t emotionally do their job are also entitled to North Carolina and Virginia workers’ compensation benefits. This includes PTSD cases.

Types of jobs where PTSD claims are likely

Any accident can cause someone to develop post-traumatic stress disorder. Still, PTSD is most common in work environments where there is a great amount of stress, physical contact, and violence. Some of the jobs where PTSD is common are firefighting, police work, and emergency medical care. Workers who see other persons die or deal with physical difficulties, such as nurses and medical care providers, also are prone to suffering PTSD. In many cases, a specific incident is what pushes the employee over the edge to the point he/she can’t work and can’t function.

People in the military often suffer PTSD. Your North Carolina and Virginia workers’ compensation lawyer can explain if you have a state or federal workers’ compensation claim if military combat causes PTSD.

Post-traumatic stress disorder systems

The psychological and emotional difficulties of PTSD vary from person to person. Some patients may recover in weeks or months. Others may need years to recover and some may never recover. In the worst cases, someone with post-traumatic stress disorder may tragically take their own life. Patients need to work with psychiatrists, psychologists, and other mental health professionals in or order to address their problems and to learn how to cope and manage them.

Typical PTSD symptoms include:

  • Depression
  • Anxiety
  • An inability to communicate
  • Flashbacks and nightmares about the traumatic incident
  • Irritability
  • Anger
  • Self-destructive behavior
  • Violence towards other or towards themselves
  • Difficulty with memory
  • Guilt about surviving the traumatic event when others did not survive
  • Being easily startled
  • Fear for one’s safety
  • Getting upset at anything that reminds you or “triggers” you in relation to a traumatic event
  • Avoiding places, conversations and other triggers that remind you of the stressful event
  • A feeling of hopelessness
  • Withdrawing from others
  • Withdrawing from relationships
  • Not participating in events you once enjoyed

Some people outwardly show their PTSD symptoms by being aggressive. Some may even engage in self-destructive behavior such as abusing alcohol or drugs or driving recklessly. Eating disorders are also common.

The consequences of post-traumatic stress disorder are not just limited to emotional effects. Many people with PTSD are at risk for some or all of the following physical detrimental effects:

  • Ulcers
  • High blood pressure
  • Heart attacks
  • Nausea and diarrhea
  • Tiredness
  • Vomiting
  • Headaches

Workers’ compensation benefits for people with PTSD

Workers who can verify through medical evidence that a specific workplace accident triggered their PTST can demand their work injury benefits in North Carolina and in Virginia. The allowable benefits include:

  • Payments of 2/3rds of the worker’s average weekly wages during the time he/she can’t work for up to 500 weeks.
  • Partial payments if the worker can return to work, but only at a less stressful job which pays less than what the employee was earning before he/she needed to stop working
  • Medical treatment to help restore or manage the employee’s mental health
  • Medical care for any physical problems related to the PTSD
  • The cost of all medications needed to treat the PTSD for the rest of the employee’s life

Employees may also be entitled to vocational rehabilitation expenses for the costs to learn new work skills so the worker can accept a less stressful job.

Some of the challenges of PTSD work injury cases

There are several difficulties in North Carolina and Virginia PTSD cases. Workers often aren’t aware of their problems immediately. It can take a long time before the employee becomes aware that PTSD is the cause of his/her inability to work. Early intervention helps many patients which is why it is important to file your workers’ compensation as soon as possible.

Insurance companies will try to blame factors not related to work for the employee’s post-traumatic stress disorder such as family stresses, money problems, and abuse by others.

Mental health issues are harder to document than physical injuries where X-Rays, CT scans, MRIs, and other more objective tests are used to show that the employee does have significant work-related injuries.

Employers may try to argue that the worker only qualifies for PTSD if he/she suffered the trauma instead of just witnessing the trauma. We have had PTSD cases where we have overcome such defense arguments.

Our North Carolina and Virginia workers’ compensation lawyers explain that witnessing a violent act at work should qualify for work injury benefits, depending on the occupation of the worker. For example, if a police officer witnesses another police officer being shot, the first police officer often will undergo PTSD because of concern for the fellow police officer and for his/her own safety. The right to claim workers’ compensation benefits varies from state to state. Some states require an unusual stimulus, some require a sudden stimulus, and some don’t allow for PTSD claims. North Carolina and Virginia currently do allow for PTSD claims if certain conditions are met.

The High Importance of Recognizing PTSD in a Workers Compensation Claim

It is extremely important for injured workers that are suffering from PTSD to come forward and advise their doctors and their attorney about any symptoms listed in this article because it is so important on many levels. First, it is important to get the psychiatric help you need, but properly identifying PTSD as soon as possible can also mean the difference between a successful, ongoing case that leads to settlement, or a case that simply evaporates and leaves the injured worker with little in the way of settlement.

Oftentimes, we know that despite everything we may try, workers compensation doctors can be very conservative and release injured workers to full duty well before they are ready to return to work, either physically or emotionally.

For a worker suffering from PTSD, even light duty at the same workplace is simply impossible. Just the thought of re-entering the place that has brought the injured worker so much suffered is enough to send someone with PTSD into a full-fledged panic attack, severe depression, or even thoughts of suicide.

Therefore, it is critical to get a referral for PTSD as soon as possible, long before the release by the doctors who are treating you for your physical injuries, so when that day comes, you are protected by your psychiatric doctors who can issue a work note to prevent you from having to return to the workplace.

A good psychiatrist will work with you not only to help you resolve your symptoms but he or she also knows that if you are released to work too early, you will be re-triggered and you might never recover from the PTSD brought on by the accident. He or she will therefore “protect” you from being harmed by an early release by issuing a work note holding you out of work until such time as it is determined that you can safely do so from a psychiatric perspective.

Many times, our PTSD clients have been “saved” by their psychiatrists, because the physical doctors have released the client to light duty when it is very clear that from a psychiatric and emotional standpoint that returning to work would utterly destroy our client. In these circumstances, had our client not had a psychiatrist who had already diagnosed him with PTSD from the accident holding him out of work for their PTSD, the client would have been forced to make a choice between returning to work, which means certain suicide or committal to a mental hospital, or giving up on their workers compensation case by refusing to return to work.

With proper PTSD treatment in place as a result of early identification of PTSD symptoms and a proper diagnosis, not to mention proper documentation and authorization and a lifetime medical award for PTSD, this is not a concern.

Talk with a caring Virginia and North Carolina workers’ compensation law now
Attorney Joe Miller works with psychologists, psychiatrists, physicians, and counselors who can properly evaluate your PTSD condition. He has the experience to fight to show that you meet the Virginia and North Carolina workers’ compensation requirements. For over 27 years, he has obtained numerous awards and settlements that fully compensate work injury victims. To discuss your case or that of a loved one who is suffering, please call attorney Joe Miller Esq. at (888) 694-1671 or by filling out his contact form.

Looking for Work after Light Duty

Posted on Wednesday, January 10th, 2018 at 10:36 am    

Joe Miller explains what happens if you’re hurt on the job in Virginia, and your Doctor releases you to light duty.

Don’t Sign Anything!

Posted on Wednesday, January 10th, 2018 at 10:32 am    

Work Injury Center Attorney Joe Miller, Esq. warns injured workers in Virginia and North Carolina to never sign any document without first consulting with an experienced workers compensation lawyer. Failing to do so can have horrific consequences. Here, Joe gives a very good example of how an injured workers’ careless signing of a simple award agreement could destroy a large portion of his or her claim.

Head injuries and Workers’ Compensation in North Carolina and Virginia

Posted on Wednesday, December 20th, 2017 at 2:27 pm    

Injuries to the head can be caused by slips and falls, merchandise or inventory that falls, vehicle accidents, equipment that doesn’t work, diving accidents, and for many other reasons. Some head injuries heal with time. More serious injuries, like severe traumatic brain injuries, can change a life forever. In the worst cases, an on-the-job workplace head injury can cause death.

Industries where head injuries are common

Jobs that have the highest risk for a head injury are:

  • Police officers
  • Construction work
  • Firefighters
  • Loading dock workers
  • Delivery personnel
  • Professional sports
  • Healthcare work

This does not mean to say we have not seen severe head injuries occur in all kinds of occupations such as nurses, certified nursing assistants or truckers. You can slip on water or ice and get knocked unconscious in almost any occupation.

How head injuries are categorized

The various types of head injuries include:

  • Concussions. A concussion is a form of traumatic brain injury (TBI) that occurs due to a violent blow or shaking of the head. Symptoms include memory loss, poor balance, difficulties with concentration, and headaches. A concussion can (but doesn’t necessarily) mean a loss of consciousness. While a single concussion is often temporary, the cumulative effects can be devastating and even cause death. Evidence is now beginning to show that even one concussion often causes permanent damage.
  • A traumatic brain injury (TBI). Aside from concussions, TBIs include:
    • Closed head injuries. Here, the head is injured but the skull doesn’t break. These may include a subdural hematoma, or brain bleed.
    • Open/Penetrating head injury. Here the injury breaks the skull.

Traumatic brain injuries are typically categorized as mild, moderate, or severe.

  • Contusion. This is a bruise to the brain. Surgery may be required to stop any bleeding.
  • Coup-contrecoup. This type of injury causes multiple brain contusions – one at the impact site and another at the side of the brain opposite the impact site.
  • Diffuse Axonal injury. Here, nerve tissue is torn which can affect communication. Car accidents and accidents that cause the head to rotate usually cause this type of head injury
  • Anoxic brain injury. Here, the brain doesn’t get the oxygen it needs.
  • Recurrent traumatic brain injury. A second brain injury that occurs before the first TBI has healed.
  • Skull fracture. Skull fractures are categorized as either a depressed skull fracture or a compound fracture.

Physicians generally use the Glasgow Coma Scale (CGS) do determine the severity of any brain injury. The CGS categories for TBI injuries are:

  • Mild TBI symptoms. Headaches, nausea, difficulty sleeping, problems with memory and concentration, mood swings, and balance problems.
  • Moderate TBI symptoms. Loss of consciousness, coma, headaches, and changes in behavior
  • Severe TBI symptoms. Consequences include coma, minimal responsiveness, and living a vegetative state.

Other symptoms include pain, loss of vision and hearing, inability to reason, and loss of cognitive function.

Finally, there are often symptoms that last for six months to a year after a concussion that may include difficulty concentrating, dizziness, increased irritability, loss of desire to be in social situations, and other symptoms that form a constellation of symptoms known as Post Concussion Syndrome (PCS).  Typically a neurologist would be in the best position to diagnose and treat these symptoms.

Steps to take if you have a head injury

Any employee who suffers any type of head injury should:

  1. Report the injury to your employer. The sooner you see a doctor or go the emergency room, the less likely the employer will claim that your injury isn’t work-related. It is best to report the symptoms and leave the medical classification of your injury to your physician.
  2. Seek medical attention. Head injury symptoms can take a while to appear. Early intervention can save a life. Once you complete the necessary work injury forms, your employer will give you a list of approved doctors to see. These doctors are paid by the workers’ compensation insurance carrier. If these doctors aren’t helping, aren’t fighting for you and not the employer, an experienced North Carolina or Virginia workers’ compensation lawyer will help direct you to a doctor of your choice.

In head injury cases, you will normally see a neurologist or neurosurgeon. These doctors will normally order a CT scan to see if you have a skull fracture, hematoma  or other brain injury.  An MRI and in some cases a PET scan may also be administered to head injury patients to evaluate brain function.

In addition, in many cases, a neuropsychologist or neuropsychiatrist may administer a battery of written tests to the brain injury victim in order to determine the extent and nature of any cognitive deficits that may have occurred as a result of the head injury.

Workers compensation benefits for head injuries

Whatever your type of head injury, you are entitled to have the insurance company for the employer pay your medical bills until you reach maximum medical improvement (MMI). Common head injury medical bills include:

  • Any surgeries in a hospital or ambulatory surgery center
  • Doctor visits
  • Medical equipment
  • Medications
  • Diagnostic tests such as EEG’s MRI’s and PET scans.

Many head injury victims also need to see different types of rehabilitative therapists including occupational therapists, speech therapists, psychologists, and other doctors and counselors.

Head injury victims often need attendant care services such as home-health nurses and aides to help them with daily living matters.

Once you reach MMI, an evaluation will be made by your doctor about whether you can return to work at your prior job, a different job – or if you can’t return to work.

Workers are entitled to 2/3rds of their lost wages during the time they can’t work for up to 500 weeks while disabled from work.

Severe brain injuries are one of the categories of injury in Virginia and North Carolina that may entitle a worker to lifetime compensation instead of just the 500 weeks based on permanent and total disability.  This is if the brain injury renders the employee permanently unemployable in gainful employment.

If you can return to work but at a lesser-paying job, you are entitled to 2/3rds of the difference between your current wages and your prior wages.

Employees should never attempt to settle their head injury claim before they reach maximum medical improvement – which can take months or years.

Workers may also be entitled to vocational training if they can’t do their old job but may be able to do a new job – if they acquire new job skills.

Speak with a trusted North Carolina and Virginia work injury attorney today

Attorney Joe Miller understands the complex cases. He works with medical professionals to properly prepare your medical reports and to properly relate your injuries to your inability to work. He has helped thousands of employees get strong work injury settlements. For help now, please phone Joe Miller Esq. at (888) 694-1671 or complete his contact form.

Virginia Workers’ Compensation – FAQs

Posted on Monday, December 11th, 2017 at 11:28 am    

Who is covered under the Virginia Workers’ Compensation Act?
The Virginia worker’s compensation law covers every person who works in the service of another for hire or as an apprentice. This includes aliens and minors. It includes people whether the contract or apprenticeship is in writing or employed and even whether the contact is legal or not. The only exception is for workers who are not employed in the usual course of the trade, business, occupation or profession of the employer.

What kinds of injuries are covered under the law?
Injuries that can be identified by a single occurrence. Workplace injuries are generally covered in Virginia if:

  • They were caused by an accident
  • They were work related
  • The occurred during work as opposed to away from work and
  • The injuries must have been caused by the accident. The injury normally be due to physical change in the body.

Virginia also covers occupational diseases such as respiratory problems or exposure to toxic chemicals. The disease must be due to work though there is no need to show that specific accident caused the disease. Medical doctors usually are called in to show that the diseases were proximately caused by workplace conditions.

Ordinary diseases generally are not covered unless it can be shown with clear and convincing evidence that the disease resulted from work and not caused outside of work, and that one of the following applies:

  • The disease was a natural consequence of an actual occupational disease or
  • The disease was “an infectious or contagious disease contracted during ones’ employment in a hospital, sanitarium, laboratory or nursing home, or while otherwise engaged in the direct delivery of health care, or during employment as emergency rescue personnel” or
  • is characteristic of the employment and was caused by conditions peculiar to the employment.

Carpal tunnel syndrome is most frequently found compensable in Virginia while other types of repetitive stress injuries may be more difficult to prove. Hearing loss is also compensable under the ordinary disease standard.

Common types of occupational illnesses include asthma, mesothelioma, bronchitis, chronic encephalopathy, black lung disease and pneumoconiosis.

What workplace injuries are not compensable under Virginia workers’ compensation law?
Except for carpal tunnel syndrome, repetitive stress injuries such as backaches and neckaches are not compensable. Aside from diseases that do not qualify as occupational diseases; back pain, neck pain, and spinal pain are not compensable unless they relate to a specific identifiable accident.

Are emotional claims compensable?
As with other workplace injuries, if a worker suffers psychiatric or emotional problems due to a specific injury, employees can be treated by a psychiatrist or psychologist – and have the bills paid for. Many workers do suffer emotionally if they, for example, suffer a broken leg. They worry about when they will get better and all the things they can’t do while they’re heal. If there isn’t a traceable accident, psychiatric damages might be compensable if they were a direct natural consequence of some work experience – such as a nurse who sees someone die.

When must Virginia Workers’ Compensation claims be brought?

  • For accidents, generally two years from the date of the accident.
  • For occupational diseases, generally two years from the time the worker learns of the illness or five years from the date of the last workplace exposure – whichever date is earlier.
    Some exceptions do apply. It is best to consult with an experienced Virginia workers’ compensation lawyer as soon as possible.

Does the employer have any defenses?
Not every workplace injury is compensable. Some employee misconduct can negate the right to benefits. Common defenses include:

Injuries that are self-inflicted such as suicide are not compensable. Other workplace injuries that are not paid in Virginia are:

Willful misconduct such as intentionally ignoring safety law if it’s clear that:

  • The safety rule was proper
  • The employee knew of the rule
  • The rule was meant to protect the employee
  • The employee intentionally ignored the rule
  • Injuries due to the employer’s use of drugs or alcohol if the employer can show the intoxication or inebriation cause the worker’s injuries.
  • Employers do have to give formal notice of any defense in compliance with the law. Attorney Joe Miller Esq. can explain if employers failed to give a proper deadline.

Can employees be punished for fraud or knowingly making false statements or failing to make necessary disclosures?
Employers who knowingly make a false statement may be found guilty of a felony. They may also lose their right to benefits. Claimants who are getting benefits have a duty to notify their employer of any significant changes that might affect his/her right to benefits. Examples include returning to another job, remarriage, being sentenced to jail, or other consequences. Employees who obtained workers’ compensation funds through fraud may be liable for any overpayments.

Can an employer fire me if a file a workers’ compensation claim?
No. Employees have a direct right to file a work injury claim in Virginia. If a worker is fired or an employer threatens an employee, the worker should immediately meet with a Virginia worker’s compensation attorney to understand his/her rights.

What if I’m an independent contractor?
Workers who are not employees cannot generally request workers’ compensation insurance. Whether a worker is an independent contractor or an employee is not always clear. A Virginia work injury attorney can explain whether you might qualify as an employee. Even if the employer says you are an independent contractor, you may be legally an employee and have work injury rights. Some of the factors that can persuade a referee that an employee is really an employee are:

  • Does the employer have the right to control when, where, and how the worker does his/her job?
  • How is the worker paid, how are expenses paid, who supplies the work tools?
  • The general work relationship. Is there a written contract? Did the worker get benefits such as insurance, vacation, or pensions?

Speak with an Experienced Virginia Work Injury Lawyer Today
Virginia workers’ compensation attorney Joe Miller Esq. can answer all of your work injury questions. He has successfully represented thousands of injured workers during his twenty-five plus years of experience. For a free consultation, please call him at (888) 694-1671 or complete our contact form.

Virginia Workers’ Compensation for Occupational Diseases

Posted on Monday, December 4th, 2017 at 1:14 pm    

Most workers need to show they suffered a specific workplace injury in order to recover workers’ compensation in Virginia. There is an exception for workers who suffer a disease that is due to work. Most occupational diseases occur after months or more normally years of exposure. Many workers may not even know they acquired the disease until decades after the exposure. The delay in seeking treatment for the disease can be problematic for many workers because employers and their insurance companies are likely to initially deny coverage due to the delay and the failure to point to a specific triggering event.

Joe Miller Esq., understands the Virginia occupational illness laws. He fights for workers who suffer these diseases which are often deadly, life-threatening, or disabling. He works with doctors to determine the disease, the cause of the disease, and to show the disease was related to daily work performance. For Virginia worker’s compensation, the last day the employee was exposed is generally considered the formal date of workplace injury.

The Virginia Statutory Definition of Occupational Disease

Here is the state statutory definition of occupational disease. Some exceptions may apply. An experienced Virginia workers’ compensation attorney will know those exceptions.

“Occupational disease” means a disease arising out of and in the course of employment, but not an ordinary disease of life to which the general public is exposed outside of the employment.

An occupational disease shall be deemed to arise out of the employment only if there is apparent to the rational mind, upon consideration of all the circumstances:

  • A direct causal connection between the conditions under which work is performed and the occupational disease;
  • It can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment;
  • It can be fairly traced to the employment as the proximate cause;
  • It is neither a disease to which an employee may have had substantial exposure outside of the employment, nor any condition of the neck, back or spinal column;
  • It is incidental to the character of the business and not independent of the relation of employer and employee; and
  • It had its origin in a risk connected with the employment and flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction.

Hearing loss and the condition of carpal tunnel syndrome are not occupational diseases. Virginia law considers them to be ordinary diseases of life. Now that does not mean they are not compensable. It means that workers who are making claims for those types of diseases must meet a higher standard of proof than the clearly defined occupational diseases. That higher standard of proof is called “clear and convincing evidence.”   

Ordinary Diseases

Generally, a worker who gets an ordinary disease does not qualify for workers’ compensation, unless certain elements of proof can connect it to the workplace, as will soon be explained.  A worker who gets an occupational disease does qualify – so it’s crucial to be able to prove that disease is occupational and not ordinary.

But this does not mean that someone who has an ordinary disease is completely out of luck.  It’s just that the standards of proof are harder, namely, that the elements must be proven by “clear and convincing evidence.” That is a much higher standard of proof than an occupational disease.

Some ordinary diseases may qualify as occupational disease, if the following conditions are clearly met:

1. If the disease can be shown to have arisen out of and in the course of employment and not due to outside causes and if one of the following exists:

a. It follows as an incident of occupational disease as defined in this title; or

b. It is an infectious or contagious disease contracted in the course of one’s employment in a hospital or sanitarium or laboratory or nursing home, or while otherwise engaged in the direct delivery of health care, or in the course of employment as emergency rescue personnel and those volunteer emergency rescue personnel. Essentially, this means people who normally provide some type of healthcare service such as nurses and ER staff and who acquire a disease may qualify for workers’ compensation, or

c. It is characteristic of the employment and was caused by conditions peculiar to such employment.

Common Types of Occupational Diseases
Many of the people who suffer an occupational disease suffer exposure to toxic chemicals. Some of the diseases associated with hazardous chemical exposure are:

  • Diseases of the lung. Bronchitis, industrial asthma, lung cancer, asbestosis, and interstitial fibrosis;
  • Nerve diseases. Chronic encephalopathy and peripheral polyneuropathy;
  • Tuberculosis, hepatitis, Lyme disease, possibly HIV, cancer of the bladder or liver, heart disease.

Mesothelioma, a deadly form of cancer that comes from exposure to asbestos, is another common occupational work disease.  Also, many coal miners suffer from black lung disease.

Repetitive Motion Injuries and Emotional Stress Injuries

There are some occupational illnesses that are not due to exposure – rather they are due to repetitive stress. Workers who do a lot of computer work or repeat work such as assembly work in factories can develop carpel tunnel syndrome and other repetitive stress injuries. Repetitive stress injuries are also called repeated motion injuries. The most common type of repetitive stress injury affects the wrists. If detected in time; rest, rehab, and some medications can help. If not detected in time, repetitive stress injuries can become a lifelong disability. Virginia workers’ compensation law does not recognize repetitive stress injuries as occupational diseases but they are considered “ordinary diseases of life” and would therefore have to conform to the higher standards of “clear and convincing evidence” in order to be found compensable.  Carpal tunnel syndrome is probably the most frequently claimed ordinary disease of life that is found to be compensable.

 

Other Ordinary Diseases that might be covered.

Conditions that are related to emotional stress such as being continually exposed to traumatic events and suffering from PTSD would not be occupational diseases, but ordinary diseases of life. There have been cases where paramedics and firemen have recovered for that condition due to repeated exposure to traumatic events, as they were able to show it was work-related by clear and convincing evidence.

Other ordinary diseases and conditions such as MRSA infection, tendinitis, HIV, Deep Vein Thrombosis, Frostbite, and Lyme disease have been shown to be compensable in specific cases.

An experienced Virginia workers’ compensation attorney such as Joe Miller can explain when emotional stress related disorders, such as post-traumatic stress disorder, are covered.

Talk to a Virginia Occupational Disease Attorney Now
Virginia work injury lawyer Joe Miller understands workers’ compensation work injury law. He has been helping injured Virginia workers for over quarter of a century. He understands what workers need to prove to qualify for occupational disease benefits. For help now, call Joe Miller at (888) 694-1671 or fill out his online contact form.

Should I quit my job after I’m injured?

Posted on Thursday, November 16th, 2017 at 11:00 am    

Workers Compensation Attorney Joe Miller explains why you should never quit your job in the midst of a workers compensation claim.

Reasons for Workers’ Comp Denials

Posted on Monday, October 16th, 2017 at 3:35 pm    

Attorney Joe Miller explains a situations in which your workers’ comp might be denied in a recent interview:

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