How Is Average Weekly Wage Determined in North Carolina and Virginia?

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:

  1. If you worked at your job for over a year, then your AWW is – how much you earned for 52 weeks before your workplace injury – divided by the number of weeks you worked. If you didn’t work for seven or more days in a row, then the number of weeks is reduced.
  2. If you worked for fewer than 52 weeks, then your AWW is – how much you earned while you worked divided by the number of weeks you worked.
  3. If you didn’t enough weeks to make a fair determination, then your AWW is the amount an employee doing the same type of job who was just starting would be expected to earn
  4. If none of the first three methods is fair, then your AWW is based on the best approximation to what you would be earning if the injury had not occurred.

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:

  • 2009 — $816.00
  • 2010 — $834.00
  • 2011 — $836.00
  • 2012 — $862.00
  • 2013 — $884.00
  • 2014 — $904.00
  • 2015 — $920.00
  • 2016 — $944.00
  • 2017 — $978.00
  • 2018 — $992.00

The state maximums for Virginia are:

  • 2009 — $895.00
  • 2010 — $885.00
  • 2011 — $905.00
  • 2012 — $935.00
  • 2013 — $955.00
  • 2014 — $967.00
  • 2015 — $975.00
  • 2016 — $996.00
  • 2017 — $1,043.00

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.

Compensation for Emotional Distress in North Carolina and Virginia Workplace Accident Cases

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.

Some of the key issues involved in proving emotional distress in work injury cases

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 verbal responses to questions
  • The ability of the worker to communicate his/her thoughts
  • The ability of the worker to remember events, places, or things
  • Whether the worker can focus or if the worker is easily confused
  • The ability of the worker to reason

The emotional health doctor or counselor should be able to document:

  • The depth and level of the worker’s anxiety, depression, or other emotional states that prevent the worker from doing his/her job. Disappointment is generally not compensable. Chronic depression, psychosis, or phobias are conditions that are more likely to justify the cost of seeking medical help.
  • Whether the emotional injuries accompany any physical injury
  • Whether the worker’s distress is a logical result of some work-related event such as being robbed
  • If the distress was due to some intentional misconduct at work
  • The length of the distress and whether the distress is improving with counseling
  • The amount of time and sessions the health provider reasonably thinks are necessary to help the worker do his/her job again
  • The expected emotional issues for the particular type of physical injury the worker suffered
  • The extent of any underlying cognitive deficits which may contribute to the emotional distress, such as memory loss. This can be measured through a battery of tests given by a neuropsychologist.

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.

Additional emotional distress considerations in workers’ compensation cases

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.

Independent Contractors and Worker’s Compensation in North Carolina and Virginia

Posted on Wednesday, January 31st, 2018 at 11:02 am    

As a general rule, a worker must be an employee in order to qualify for work injury benefits in either North Carolina or Virginia. Workers who are independent contractors are not eligible for either lost pay benefits or for medical bills through worker’s compensation. This means that any worker who wants to receive workers’ compensation must show he/she was employee when the accident occurred. It also means that the insurance company for the employer will want to show that an injured worker was not an employee but worked independently.

Employers are required to have workers’ compensation for all their employees and are required to know the difference between an employee and an independent contractor. Typically, an employer pays an employee payroll taxes and unemployment taxes for the employee – in addition to paying for worker’s compensation insurance and sometimes even healthcare benefits.

Our firm has handled many of these kinds of cases, and prevailed in all of them by proving that the employee was, in fact, an employee as opposed to an independent contractor. We see many employers attempting to get away with this “misclassification” of employees, particularly in industries such as construction, cable installation, or transportation, where it can be costly to maintain workers compensation insurance. Also, as mentioned previously, classifying employees as independent contractors frees the employer from the obligation to pay payroll taxes or health insurance if there are more than 50 such employees. The problem is, when one of these employees gets seriously injured, he or she has no way to pay for the hefty hospital bills.

We have often found that these employers often do have workers compensation insurance. They just refuse to extend that insurance to cover certain workers that they wrongly classify as independent contractors. Once we have proven those workers are, in fact, employees, then the insurance coverage steps in and covers the employee.

Neither the worker nor the employer gets to make the decision as to the employee’s work status. This is true, even if the employer forces a worker to sign a statement saying he/she is an independent contractor before doing any work. Even if the worker receives a federal 1099 form, that is not conclusive to show the worker is an independent contractor. The state workers ‘compensation commissions make the decision which means, for all practical matters, that the Deputy Commissioner makes the call.

The Virginia Workers Compensation Commission and the North Carolina Industrial Commission typically review a variety of factors to determine if you are an employee or independent contractor. Many of these factors are based on the guidelines set forth by the Internal Revenue Service. The key issue tends to be who controls the worker’s hours, labor, and manner of performance. If the employer has control, then the worker is usually an employee. If the worker has control, the worker is usually an independent contractor. Some of these factors are:

  • Control over the worker’s behavior. This includes such factors as:
    • Instructing how the work is to be done, when it’s to be done, and where it should be done. Employee status is indicated if the employer controls which work tools are used and where supplies should be bought.
    • The extent of the instructions. Precise details suggest employee status. Little or no details suggest independent contractor status.
    • How the work is evaluated. If just the final work is evaluated, such as when a worker does home repairs, that suggest independent contractor status. If the employer reviews the work in stages, or via supervision, that suggests employee status
    • Who trains the worker. If an employer has classroom or on-site training, that suggests the worker is an employee. If the employer relies on the worker’s skills without training, that suggests the worker is an independent contractor
  • Control over how the worker is paid.
    • If the employer invests in the equipment used, that suggests employer status;
    • If the employer pays for the work expenses, that suggests independent contractor status
    • If the worker can earn a profit or can lose money depending on how well the job is done and client satisfaction, that suggests independent contractor status. Payment by the hour or by the week suggests employee status;
    • If the worker is paid a flat fee via invoice, that usually indicates the work is an independent contractor
  • The relationship between the worker and the employer.
    • A written contract suggests that both employer and employee signs suggest an employee relationship if the contract says the work is an independent contractor
    • Benefit payments. Generally only employees are offered and paid health benefits, vacation pay, sick pay. Generally, only employees are offers 401ks, pension plans, or other retirement benefits
    • The length of the work relationship. Long-term relationships suggest employee status. Independent contractors usually just work on a job for short time and then leave
    • They type of work provided. Work that is essential to the employer’s business indicates an employee relationship

Some additional questions a judge will review to determine employee vs. independent contractor status are:

  • Can the worker do other jobs for other employers at the same time?
  • Who has the right to fire the worker and on what terms?
  • Can the worker choose who he works with on the job and who controls these workers, and when he shows up for work?

The benefit consequences for each type of status – employee or independent contractor

If an employer doesn’t have workers’ compensation for an injured worker and that worker is judged to be an employee, then the employer can be required to pay all the work injury benefits, including temporary total disability, medical bills, and vocational rehabilitation expenses out if its own pocket.

If the worker is found to be an independent contractor, then the employer has no obligation to the independent contractor. An injured independent contractor will then look to his/her own health care policy to pay any medical bills. The contractor will lose wages unless he/she also had some sort of professional disability insurance policy or his own workers comp policy.

If the employer was negligent and the negligence caused the worker’s injury, then the injured independent contractor may be able to sue the employer for his/her medical bills, lost wages, and also for any pain and suffering. If it is clear the employer failed to follow the local building codes, OSHA standards, or common sense work safety conditions – then the employer will be more likely to agree that the worker is an employee. Injured workers should consult with their work injury lawyer before agreeing to this because they make more money by bringing a personal injury lawsuit.

Employers who intentionally classify a worker as being an independent contractor, when they certainly know that the worker is an employee can be subject to fines and penalties – and for the payment of the worker’s employment taxes.

We have come across a few larger employers who have attempted to get away with this misclassification. Rather than upend their entire business model by being exposed in a formal Judicial proceeding, many have desperately agreed to settle the claim instead, which, of course, has worked to our client’s benefit.

Speak with a strong North Carolina and Virginia work injury attorney now

Understand your rights. In many cases, the employer misclassified your work status. Attorney Joe Miller Esq. understands the difference between employee and independent contractor status. He’ll fight to get you approved for employee status if you were injured on the job. He’s helped thousands of injured workers get justice. To speak with an experienced workers’ compensation lawyer, please phone (888) 694-1671 or fill out the contact form.

How Does Vocational Rehabilitation in Workers’ Compensation Really Work?

Posted on Monday, January 29th, 2018 at 3:03 pm    

If your physicians make clear that you are unable to perform you prior job because of permanent physical or emotional limitations, (i.e. you are placed on permanent Light Duty),  if you are under an Award in Virginia or an Accepted Claim in North Carolina, AND your employer is not willing or is unable to accommodate your restrictions, the employer’s insurance company will often seek to get you some employment that you can do. There are basically two ways to get you to work with restrictions:

  • The first way is to find you a job that meets your physical restrictions.
  • The second way is to retrain you and/or reeducate you so that you can do different work.

Initially, the employer will assign a vocational rehabilitation counselor to your case. Even though they may be nice, the vocational counselor is often not your friend. He or she is working for the employer and trying to get you any job so the insurance company doesn’t have to continue paying North Carolina or Virginia’s worker’s compensation benefits. More importantly, the vocational rehab counselor will schedule numerous meetings and job leads for you to attend and follow up on. If you fail to “jump through their hoops,” particularly in Virginia, then you will likely be cut off of your benefits for failure to comply with the vocational rehabilitation plan.

Some key considerations when meeting the vocational counselor

The first step is to review your rights with an experienced worker’s compensation who can inform you about:

  • Where the meetings with the counselor should take place. Ideally, they should be at a neutral office and not your home. Public places like libraries and restaurants are sample neutral locations.
  • Who can be present at the meetings. If possible, your lawyer should meet the counselor and be present at the first meeting, usually held at your attorney’s office.
  • Which jobs the vocational counselor can send you to and which ones he/she can’t. Some counselors may send you to jobs that the counselor knows you can’t do because of your work limitations. This is not allowed under the Commission Guidelines in both Virginia and North Carolina. The jobs are supposed to be “pre-screened” by the counselor and within your physical restrictions set forth by your doctor.  If it is clear after you contact the employer or simply on the face of the job description that it falls outside your physical restrictions, you need to bring this to the attention of the counselor—and your attorney.
  • Your duty to actively look for work.  The counselor will require you to follow up on all job leads that she provides to you. You should NOT apply for any jobs on your own outside of those job leads, if you are in active consultation with an insurance company vocational rehab counselor. You should document everything you are doing to look for work, follow her directions, and attend the meetings with the counselor so it’s crystal clear that you are cooperating. If you fail to comply with her legitimate requests and suggestions, the counselor will inform the employer’s carrier. The carrier may then seek to suspend terminate your benefits because you are not being cooperative.
  • Your duty to follow through with the counselor’s recommendations and suggestions. In addition to sending you to interviews for jobs, the counselor will keep track of details such as whether you are on time for meetings and whether you return phone calls and emails. Again, if the counselor can demonstrate you’re not cooperating, your benefits can be suspended or terminated. If benefits are suspended, it can be difficult to reinstate them.
  • Your right to suitable work. In general, both North Carolina and Virginia require that the work you do meet your job restrictions and be work that you are skilled to do. If you do not have the requisite skills, then re-training or schooling may be required.  
  • Your requirement to go to job interviews. It’s best to be safe and go to job interviews even if it’s questionable whether the job is suitable. There usually is not enough time to make changes before you are given the job leads. It could be that the prospective employer may wish to accommodate your restrictions. But if the counselor is sending you on too many bad job interviews, where you are continually being told your restrictions disqualify you from the job, or the job has nothing to do with you still set, then you should review your rights with a trusted work injury attorney who will request that the counselor follow the laws or be replaced. Once again, the vocational rehab counselor is supposed to be “pre-screening” the jobs as suitable for you.

Vocational retraining for when there just aren’t suitable jobs

When it becomes certain that the injured employee simply isn’t going to find a suitable job that meets the work restrictions, then retraining and education is the next likely step. Many employer insurance companies still prefer to pay for retraining rather than to pay for extended work loss wages. Sometimes, this is determined after the first meeting with the vocational rehab counselor.

Retraining usually means one or more of the following:

  • Getting a GED certificate or finishing high school
  • Learning how to read and write
  • Learning a new trade or set of skills such as computer classes
  • Learning how to prepare a resume
  • Learning how to write a cover letter
  • Learning where to look, online and offline for work

Retraining can also mean counseling for people with learning disabilities, blindness, deafness, or mental illness.

Many manual workers can be retrained. Retraining isn’t just limited to high school. Some college education and same trade school education may also be available.  Of course, any costs must be borne by the employer.

The employer’s insurance company should pay for:

  • The cost of tuition, fees, and books
  • Ongoing temporary total disability payments while the worker is being retrained

A vocational rehabilitation counselor will also be assigned to work with you. A good counselor will help your choose training that will help you find a job in your location. A good counselor will also monitor your work not just to see if you taking and passing the classes – but also to review how you are doing and if you need any additional assistance. A bad counselor—which unfortunately is the majority of them— will look to see if you’re missing meetings or performing poorly so he/she can say you’re not cooperating and get you cut off of benefits.

Workers who are fully disabled or who can’t be retrained because of age or other problems shouldn’t be forced to go through a re-education process. If there’s no point to retraining – meaning that completing your studies won’t lead to suitable work, then you should get your benefits on the basis of a total disability.

Your Virginia or North Carolina worker’s compensation attorney can explain when retraining isn’t worth the effort, i.e. would be futile, and how you should proceed. For example, the lawyer may work with a vocational expert who can certify that the retraining simply won’t lead to a real job – given your current work limitations and the known job market in your locale.

On the other hand, if retraining can help and the employer’s insurance company refuses to pay for it, an experienced work injury lawyer will file the proper paperwork and hearing request to force the employer to pay for your vocational rehabilitation.

Understand if vocational rehabilitation is a viable option for you

North Carolina and Virginia lawyer Joe Miller Esq. has been fighting for injured workers for almost thirty years. He has helped thousands of employees get the lost wages they deserve and get their medical bills paid. He has also fought and prevailed against bad vocational rehabilitation counselors who recommend inappropriate jobs as a means to attempt to get the worker cut off.  The goal is always to work towards what is hopefully a good settlement his clients’ work injury case and a chance at a new life and a decent job. For help now, please call (888) 694-1671 or complete my contact form.

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.


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.

What Types of Doctors are Involved in Workers Compensation Cases?

Posted on Tuesday, September 26th, 2017 at 8:46 am    

Employees can be treated by many different types of doctors depending on how the accident occurred and they type of injuries suffered. Many workers need to see multiple doctors during the course of their recovery process. Some of the doctors who treat injured workers are:

  • Emergency room physician. When an accident occurs, most employees are taken to the hospital emergency room. The ER doctor should be trained in making the initial diagnosis of the workers medical condition and trained to help immediately stabilize the patient’s condition and direct the patient to other doctors when needed. The ER doctor also is the physician who decides if the patient should be admitted to the hospital and whether to pull in consults with numerous other specialties such as orthopedic trauma doctors, or neurosurgeons.  ER doctors often order blood tests, X-Rays, CT scans, MRIs, and other diagnostic tests to evaluate your condition. They also take an oral history and conduct a physical exam. ER doctors are normally trained in life-saving techniques such as cardiac care support and resuscitation.
  • Orthopedic surgeon. For probably 90% of the cases we handle, this is the specialty and the physician who becomes the authorized treating doctor. This doctor diagnoses and treats injuries a worker’s bones and joints or disease of the bones and joints. Some orthopedic doctors specialize in a particular part of the body such as the neck, back, spine, shoulders or back. In addition to diagnosing and treating these injuries, orthopedic doctors can perform surgeries to repair bone and joint disorders. Employees who are involved in an auto accident, fall from a great height or have something fall on them, are involved in an explosion, or injured due to some form of violent condition; often require treatment by an orthopedist. Some orthopedic specialties are hand surgery, shoulder surgery, knee surgery, joint reconstruction, foot and ankle surgery, and spinal surgery.
  • Physiatrist or Osteopathic Physicians. This doctor may work with patients who have had surgery and need rehabilitation, or someone who is trying to avoid surgery by engaging in more conservative treatment first. Physiatrists are not surgeons themselves, although some do perform surgeries.  Physiatrists are also known as physical medicine and rehabilitation (PM & R) specialists. These doctors may do are muscle manipulation, epidural injections, alternative medicine such as acupuncture, and ultrasound-guided procedures. Physiatrists and osteopaths often fill the role of and are often found practicing as pain management physicians. Others care for patients such as quadriplegics or amputees on a long-term basis to assist them with increasing function and coping with their severe, lifelong injuries.
  • Pain management. These physicians typically treat people with chronic pain. They are often anesthesiologists or physiatrists by training, although some are orthopedic surgeons as well. Treatments can include steroid injections, radiofrequency neurotomy (also known as ablation therapy) , nerve blocks, subcutaneous stimulator implants,  and other remedies that can help minimize the pain. Most pain management doctors also prescribe pain medications including opioids. Their role has probably gotten more critical lately. This has come about as surgical physicians seek to transfer care of chronic pain patients out of their practices, out of fear of failure to comply with more stringent regulations and laws passed in Virginia and elsewhere in response to the nationwide epidemic of death from opioid overdose.
  • Neurosurgeon. These physicians diagnose and treat neurological problems of the brain, neck, head, and back. Much of what they do tends to overlap that of the orthopedic physician, with regard to spine surgery. Neurosurgeons often perform spine surgeries, which frequently include multilevel fusions of the spine, using plates and screws, as well as brain surgeries to alleviate subdural hematomas.
  • Neurologist. This doctor treats injuries to the nerves and diseases of the nerves, which may often involve chronic headaches, dizziness, or cognitive deficits, such as memory loss,  after a head injury. He/she does not perform surgeries. Some of the tests a neurologist performs are EEGs, lumbar punctures, CT scans, and MRIs.  He or she may also refer the patient out for neuropsychological testing to gauge a patient’s level of cognitive performance after a brain injury.
  • Psychiatrist. This doctor diagnoses and treats patients with emotional and mental health problems. Treatment usually involves extensive counseling sessions to help identify the source of the patient’s difficulties. Psychiatrists are M.D.’s and therefore can also prescribe medications. Workers treat with psychiatrists to manage the emotional side of dealing with an injury and an inability to return to work, which often includes Post Traumatic Stress Disorder (PTSD). Psychiatrists may sometimes use brain images such as CT scans, MRIs, and PET scans to help determine the cause of a worker’s behavioral and emotional difficulties. Some of the types of specialties psychiatrists have are addiction psychiatry, sleep medicine, geriatric, and clinical neuropsychology. Some psychiatrists see patients infrequently for medication updates, and delegate the psychotherapy role to psychologists or licensed therapists.
  • Psychologists or licensed counselors. This type of doctor treats workers who have behavioral problems such as depression and emotional problems related to their injury. They are also trained in giving the patient mental health tests. Psychologists do not prescribe medications and are not M.D.’s. Some of the categories of psychologists are clinical psychologists, counseling psychologists, and educational psychologists and neuropsychologists. There are also counselors and licensed clinical social workers. Most, but not all psychologists have a PhD, so it is still appropriate to call them “Doctor.” Usually, psychologists use therapy/talk therapy. These sessions are usually hour- long sessions on a regular basis that can last weeks, months, or years. Workers usually get individual therapy. Some psychologists are trained to perform hypnosis.
    Neuropsychologists may administer a battery of tests designed to gauge a worker’s level of cognitive dysfunction after an injury. The evaluation is usually ordered by a neurologist or neurosurgeon which physician is treating the patient for a brain injury.
  • General surgeon. This physician performs many types of surgeries including those that an orthopedist or neurosurgeon would not normally perform, such as to repair damage to internal organs after an injury.
  • Ophthalmologist. This is an eye doctor who can diagnose and medically treat patients who have visual injuries. An ophthalmologist can perform eye surgery such as cataract surgery.
  • Audiologist. An audiologist is a doctor who treats works who lose some or all their hearing in one or both ears. These physicians are also trained to help workers with balance problems and workers who have tinnitus.
  • Pulmonary Physician. these physicians are often seen in the context of asbestos, silicosis, or other work-related lung diseases. Most of the pulmonary doctors who do this are qualified to give something called a “B Reading.”  A “B Reading” is an important standard gauge of lung damage caused by asbestos or silicosis which is recognized by the U.S. Department of Labor. An attorney who is familiar with B-readings can often translate the level of damage into potential recovery for the worker, in accordance with statutory law. In Virginia, this is broken down into First Stage, Second Stage, and Third Stage.
    Occasionally, a pulmonary physician may be utilized for acute exposures to hazardous chemicals to gauge the effects on the lungs via a pulmonary function test.
  • Cardiologist. This is a heart doctor who diagnoses heart disease and risks for heart attacks and heart strokes. He/she prescribes medications such as statins and performs surgeries such as implanting stents and bypass surgery. Some of the tests a cardiologist performs are an echocardiogram which is a soundwave image of the heart’s structure, an ambulatory echocardiogram which is a test to look or abnormal heart rhythms, a stress test to examine a worker’s limitation, and a cardiac catheterization which takes pictures of the heart and helps relieve blockages of the heart.
  • Chiropractor. Some injured employees see chiropractors for diagnosis and treatment of soft-tissue injuries and injuries to the spine. Coverage is limited and not all workers compensation insurance companies will pay for treatment with chiropractors. They are not licensed to perform surgeries or prescribe medicine. They do manipulate and perform adjustments of the spine.  They also treat nerve functions. Workers who treat with chiropractors normally see the chiropractor multiple times.  If warranted, a referral to an orthopedic surgeon may be made by the chiropractor.
  • Independent medical examiners. (IME’s) Often, during the course of treatment, the employer’s insurance company will demand that the worker see an “independent” doctor. This doctor really isn’t neutral. He/she is usually chosen by the employer to try to show that the worker is able to return to work, and/or that the injuries and treatment recommended by the worker’s physicians are not related to the work accident. The good news is that the opinion of the authorized treating doctor is usually followed, not that of the defense IME physician. Your Virginia or North Carolina worker’s compensation lawyer will explain when independent medical examiners can conduct an exam of the employee and what the worker should know about the exam such as what tests and questions the IME doctor is likely to perform or ask and how the worker should best conduct him or herself.

In addition to treating with doctors, injured workers will also treat with the following types of health-care professionals

  • Nurses and Nurse Practitioners (NP’s)
  • Physicians’ Assistants (PA’s)
  • Occupational therapists
  • Speech therapists
  • Vocational counselors
  • Physical therapists

Contact a respected North Carolina or Virginia workers’ compensation lawyer now

Work injury attorney Joe Miller understands which types of doctors injured workers see. He often recommends doctors when the employer recommended doctors aren’t helping. He works with the doctors to determine the full extent of your injuries and to verify your long-term health needs and work restrictions. To speak with an experienced work injury lawyer who has been fighting for employees for more than 25 years, please call attorney Miller Esq. at (888) 694-1671 or use his contact form to schedule an appointment.

A Few Exceptions to Standard North Carolina Workers’ Compensation Issues

Posted on Wednesday, June 28th, 2017 at 11:39 am    

Many workers work a 40-hour shift at just one location. Most get a paycheck based on their hours of work. There are many exceptions though that an experienced work injury lawyer can help you with. Attorney Joe Miller, Esq. has been helping North Carolina employees for over 25 years. He’s handled almost every type of unusual situation that can arise. Here are a few unique work situations:

Commuting to work or traveling for work

As a general rule, employees are not eligible for worker’s compensation if they are hurt on the way to work or on the way home. This is often referred to as the “Coming and Going” rule. Employees are normally only eligible for worker’s compensation while they at the job site. Employees who leave the job site during the day will be judged by whether they were running company errands or were doing personal chores.

There are a few exceptions though:

  • Workers who are expected to be on the road should be able to recover work injury benefits. This includes salespeople, nurses, and others who travel to see customers and clients at their homes and businesses.
  • Employees who are on-call are expected to be ready to come to work on a moment’s notice. They may be eligible for worker’s compensation from the moment they get the call.
  • Employees who are at a trade show or conducting business away from the standard work are helping their employer. It only seems fair they should be protected if they are hurt while helping their employer. They may be eligible even if they aren’t doing work activities such as shopping or enjoying a social activity.
  • If the employee is running a work-related errand on the way to work or on the way home, they may be eligible for work benefits.
  • If the worker has to drive through a construction site or dangerous site to get to work, getting work injury benefits may be possible.
  • If the employee is using the company car and the company is paying for the gas and mileage, then if the employee is hurt coming or going, he/she may be entitled to work injury benefits.

Some of the questions and answers that we will review for our clients are:

  • Was the accident during a typical commute or did the employee go off-course for some reason?
  • Did the accident happen while the employee was running personal errands, business errands, or a combination of both?
  • Who paid for the commute?
  • Was the employee travelling from one work site to another work site?
  • Did the accident happen in a company parking lot or a private parking lot?
  • Did the employer benefit from the trip in any way?

Part-time, Temporary, and Seasonal employees

Many employers hire workers only when they need them. For example, retailers often hire employees during the winter holidays and construction companies hire crews when the weather is warmer. Non-full time workers are classified as follows:

  • Part time employees. As a general rule, full-time employees work 40 hours while part-time employees work 35 hours or less. Employees who work 35-40 hours are in a grey hour. Another rule of thumb is that full-time employees are more likely to paid a weekly salary while part-time employees work on an hourly rate. Part-time workers usually receive no or little benefits especially health benefits – which makes getting work injury benefits all the more important because worker’s compensation pays for necessary medical bills.
  • Temporary employees. Temporary workers are normally hired for just a few days or a few weeks to fill in for someone who is on maternity leave or vacation or to fill a short-term need in the company. Temps may work for a temp agency or for the company where they are doing the work. Temporary employees may work full-time meaning they are paid a salary.
  • Seasonal Employees. Most seasonal workers are hired during Christmas seasons or during the summer months. Some industries like the hotel industry may add workers during the summer when there is a lot more travel. Seasonal workers may also be full-time employees for the time they work.

Whether these workers qualify for workers’ compensation depends on whether the worker is classified as an employee or an independent contractor. That distinction, in turn, is based on a variety of factors. Injured workers shouldn’t automatically assume that just because they don’t get a weekly paycheck and health benefits that they are an independent contractor. The main criteria that North Carolina will use in deciding if you are an employee or not is how much control over the worker’s duties the company had. If the employer decided what hours you worked, where your worked, what job tasks you did at work, who provided the tools that used; then you may be eligible for worker’s compensation because you’re an employee, even if the company claims that you are not.

Working for Tips

Workers such as waitresses who work for tips need to make sure they are getting the correct weekly income. Employees who are injured on the job get 2/3rds of their lost wages until they can return to work or for up to 500 weeks for more serious injuries. For waitresses, the starting point is their weekly pay which for many isn’t much more than the state minimum wage. The amount of the employees tips should also be determined. Most workers who have a work history know (and their employers know) how much extra they are getting in tips. Tips should be reported as income on the waitresses’ tax returns. If returns are reported then it should be straightforward that the waitress is entitled to 2/3rds of the tips and the wages added together. If tips were not reported, then getting 2/3rds of the tips paid for a work injury can be more difficult.

Make the call to an experienced work injury lawyer today.

Attorney Joe Miller Esq. has helped thousands of injured workers get the full workers’ compensation benefits they’ve earned. In many cases, he had to argue the exceptional or unique case. To see if you’re eligible and to get the best recovery the law allows, please call us at (888) 694-1671 or complete the contact form.


Must Your Virginia Accident be Work- Related in order to Collect Worker’s Compensation Payments?

In any work injury case, it is necessary to prove the following in order to be paid your benefits:

  • The injury or illness must be work-related
  • You must be an employee
  • The injury must be what is preventing you from working

Each of these elements can be complicated. The good news is that injured and ill workers do not need to prove the employer was negligent or reckless. Fault is not an issue in work injury cases. Your doctors or independent physicians can usually confirm that your injuries are what is preventing you from doing your job.

It is the work-related issue that can often lead to litigation. An experienced Virginia work injury lawyer like Joe Miller can help you convince an insurance company or the worker’s compensation hearing officer that your accident was indeed work-related. Some common work-related issues that often arise in Virginia are:

  • Lunch breaks. Whether an employee who is injured while they are on a lunch break is entitled to benefits depends on several factors. If you had lunch in the company cafeteria, that’s a stronger argument for collecting Virginia work injury benefits than if you were hurt away from the office. Likewise, if you were getting lunch for your employer or even other workers, that’s a better case than if you had lunch on your own. If you were meeting a customer or client, that’s good for business and you should be covered. Lunch while at a trade show on company time is similarly a better case than if you were just having lunch with personal friends or your family.


  • Employer events. Many businesses hold events to foster better social relations among office workers. If you hurt playing softball while you were representing the company team against other community businesses, you may be entitled to work injury benefits because that’s good marketing for the business. If the event was a class or some training activity, that also is helping your employer and you’d have a strong argument that you should be compensated.


  • Company travel. This topic is covered in the companion blog about the ‘going and coming’ rule.  The more you can show that the employer was directly benefited by your commute or travel activities, the stronger case for benefits you will have if you get into a car accident while traveling.


  • Your own negligence or misconduct. Just as you do not have to show an employer was negligent in order to collect Virginia worker’s compensation rule, the employer generally can’t argue that you were negligent to deprive you of you worker’s compensation benefits. If you were careless, failed to watch where you were going, used the wrong tool, or made an error in judgment; you still should be able to collect worker’s compensation.


The case gets tougher if you deliberately violated a safety rule or safety law. If you committed a crime at work, and were injured while doing so; then you probably won’t get Virginia worker’s compensation.


North Carolina and Virginia law differ significantly as to these concepts. In Virginia, a showing by the employer of a deliberate rule or safety statute violation could completely bar your claim, whereas in North Carolina, such a violation would only decrease your weekly comp checks by 10%.


  • Preexisting conditions. If you have a prior injury, then the employer or the employer’s insurance company will likely claim that the prior injury defeats your claim. An experienced Virginia work injury attorney will know what counterarguments to apply. For example, so long as your treating physician (who must be an M.D.) is able to give an opinion that the accident caused a sudden mechanical change in the body part in question, even of the slightest amount, and that this change is at least partially responsible for the current treatment and disability, then it makes no difference whether you had a pre-existing condition or not. The good news is also that there is no reduction in your benefits for the pre-existing condition. The entire claim is compensable if your doctor can support it in Virginia, despite whatever pre-existing conditions you may have had in the same injured body part.  


  • Hearing loss. Just because you work in a noisy environment, doesn’t mean you should be denied benefits. As long as it can be shown the hearing loss was work-related, you should be entitled to worker’s compensation, although the benefits for the hearing loss alone are very limited. Unless the hearing loss is so severe that it prevents you from working, the maximum you can recover for hearing loss is 50 weeks of compensation for each ear.  How much of the 50 weeks you will get is determined by the severity of your hearing loss and there is a hearing loss table that sets forth the decibel reduction with the corresponding percentage of hearing loss.


  • Occupational illnesses. You also are entitled to benefits if you suffer a disease or illness from work. Examples can include black lung disease or asbestosis. In order to qualify, the worker must be able to prove that the illness was not an ordinary disease that the community at large would suffer – and that the disease was characteristic of conditions found in a specific type of profession. The job must increase the odds of getting the illness.


Other example diseases include hepatitis suffered by a lab technician or a contagious disease suffered by a healthcare worker at a hospital. The employee does need to also show that the work conditions were what directly caused the disease.


There is one key difference between an occupational illness and a work injury caused by a fall or a specific workplace accident. An occupational illness can accumulate over time – that is the worker doesn’t have to prove any specific incident triggered the illness or disease.


  • Emotional/Psychiatric injuries. You don’t have to suffer a physical injury in order to qualify for benefits. In many cases though, emotional distress, or a psychiatric illness such as PTSD is something that occurs through either experiencing or witnessing an extremely traumatic event. The key in these cases is that the traumatic triggering event must be outside the realm of what the worker would normally encounter in his or her occupation. For instance, a police officer who tries to claim that witnessing a shooting caused him PTSD is going to have a difficult time proving that was outside the normal realm of his occupation. On the other hand, a nurse’s aide who witnesses a patient kill themselves through a self-inflicted gunshot wound to the brain is likely going to recover for her psychiatric injuries, as this is not something that she would normally encounter in her duties as a nurse’s aide.


Speak with an experienced Virginia lawyer as soon as possible

Attorney Joe Miller Esq. has helped thousands of injured workers during the past 25 years. He has the skills and experience to handle the tough cases and the exceptions to the rule. He understands what arguments to make to challenge arguments that injuries weren’t work related. For strong advocacy, please call (888) 694-1671 or fill out the contact form.

Burn Injuries and Worker’s Compensation

Posted on Monday, June 26th, 2017 at 11:34 am    

Many North Carolina and Virginia workers suffer serious burn injuries at work. While employers are required to follow a variety of federal, state, and industry standard guidelines – employees in both states are entitled to workers compensation benefits regardless of employer fault. In serious burn injury cases, the employer’s insurance company or self-insurance is required to pay for all the reasonable surgeries, doctor visits, and medications the employee needs to be able to manage the pain and be able to maximize the chances of recovery. If multiple skin grafts are needed and the burns are deep and extensive, the cost for the medical care can become quite expensive.

There are three basic types of workplace burns:

  • Thermal burns. These can be from a stove, steam, hot liquids, industrial equipment, or other causes
  • Electrical burns. These usually occur from some sort of electrical current or spark
  • Chemical burns. These can be caused by an product the worker uses that has caustic or toxic components such as cleansers.

Whenever a worker suffers any type of burn injury, it is crucial to get medical help as soon as possible. The burn victim should immediately contact the supervisor and then get emergency help.

Thermal burn injuries

If a person’s clothing catches fire, the first priority is to be able to put out the flames. The person should be helped to stop, drop, and roll. All burned clothing should be removed from the worker. The worker should then be given something to wrap their body in such as a jacket or blanket. All burn victims who catch fire will need emotional help as well as physical help.

According to the Centers for Disease Control (CDC), any jewelry, belts, and rings should be removed immediately because burned areas often swell.

There are three types of burns – first, second, and third degree

  • First-degree burns. These burns involve the skin’s top layer. Sunburn is a classic example. Signs include redness, sensitivity to touch, and mild swelling. Treatments include wet cool compresses or immersing the skin in fresh, cool water until the pain ebbs. The burn should be covered with a sterile non-adhesive bandage or sterile gauze. Ointments should be avoided because they can cause infection which can lead to serious complications. Some over-the counter medications may be used to help reduce the swelling and ease the pain. Most first-degree burns heal with time though if the first-degree burn covers a large portion of the body or the employee is elderly, emergency treatment should be sought.
  • Second-degree burns. These burns penetrate into the second layer of the skin. Deep skin reddening, blisters, leaking fluid, pain, and possible skin loss are likely symptoms. The skin should be immersed in fresh water for 10-15 minutes. The blisters should not be broken and ointments should be avoided because, again, they can cause infections. Burned arms and legs should be elevated. Steps should be taken to help avoid shock. This includes laying the burn victim flat and elevating the feet and covering the victim with a blanket. If a head, neck, back, or leg injury is suspected – then the shock position should be avoided. The best course of action for second-degree burns is to get immediate emergency medical assistance.
  • Third-degree burns. These burns penetrate the skin completely and can damage underlying tissue also. The skin can appear leathery and dry, charred, or have discolored patches. Breathing issues can be a real problem. Emergency help is mandatory.

Electrical burn victims

Electrical jolts, shocks, or burns often aren’t visible like thermal burns – though the damage is often deep underneath the skin. The electrical burn can cause heart problems and even cardiac arrest. Many electrical burn victims suffer breathing problems and loss of consciousness in addition to heart problems.

The best treatment is to seek immediate medical help. In addition, care should be taken to remove the burn victim from any electrical source by using an object that doesn’t’ conduct electricity. The source of the electricity that caused the burn should be cut off. Cardiopulmonary resuscitation (CPR) may be required.

Chemical burns

Mining and other industries are especially prone to cause serious chemical burns

According to the Mayo Clinic,, strong acids, lyes, paint thinners, and gasoline are among some of the causes of chemical burns. If an employee has a chemical burn:

  • The chemical that is causing the burn should be removed.
  • Dry chemicals can be brushed.
  • Wet chemicals need to be treated more carefully. The person removing the chemical should wear gloves and take other precautionary steps so they don’t get burned as well.
  • Any contaminated clothing or jewelry should be removed.
  • A stream of cool tap water should be run over the burn.
  • Loose fitting bandages or gauze should be applied.
  • Some over-the-counter pain relievers may help.
  • Your doctor may give you a tetanus shot.

If the employee is in shock (is pale, fainted, or has difficulty breathing), the chemical burn is deep (penetrating the first layer of the skin), or the burn involves the eyes, hands, feet, face, buttocks, groins, or a major joint – then emergency medical help should be called for.

Recovery for Scarring and Disfigurement from Burns

Often, there are terrible scars or disfigurement left on the skin as a result of severe burns. Unfortunately, under the laws in North Carolina and Virginia, separate recovery for scarring or disfigurement is extremely limited, unless the scarring is so severe that it interferes with one’s ability to work, such as restriction in the range of motion or limited use of the disfigured area that prevents you from returning to work. In that regard, such cases are treated just like a regular comp case.  

In Virginia, if you are able to return to work, you are only entitled to a maximum of 60 weeks of temporary total disability payments for scarring and disfigurement.

In North Carolina, if the disfigurement is on the head or face, the maximum payment is $20,000.00. Elsewhere on the body, it’s only $10,000.00.

Also, as with all workers compensation cases, there are no payments for pain and suffering. All payments are determined by statute.  

Speak with an experienced North Carolina and Virginia Worker’s Compensation Lawyer Today

Burn injuries can require long-term medical care. Employees may not be able to return to work for months, years, or, in severe cases, never. North Carolina and Virginia attorney Joe Miller Esq. has been helping injured workers get their benefits and legal recoveries for over 26 years. He has helped thousands of employees get their full workers’ compensation benefits. For help now, please phone us at (888) 694-1671 or complete our contact form.

Head Injuries, Concussions, and Workers’ Compensation

Head trauma of all types is a very common workplace injury. An employee can suffer a head injury due to a slip and fall, an automobile or truck accident, a piece of equipment that doesn’t work, or an object that falls from above. Head injuries can happen to:

  • Construction workers
  • Manufacturer employees
  • Police officers
  • Firefighters
  • Truck drivers
  • Anyone who uses a car for their job
  • And any worker anywhere

Common head trauma tests

The brain is made of soft tissue which can be easily damaged. Inside the skull is a cerebrospinal fluid layer that helps protect the brain from the skull. A concussion happens when a blow to the head causes the brain to pass through the fluid and strike the skull.

If a head injury, concussion, or brain trauma is suspected; your physician will conduct several types of tests:

  • The doctor will take an oral history to determine what caused the blow to the head
  • The doctor will conduct a variety of physical tests to determine the loss of any physical or cognitive function
  • The physician will likely order several imaging tests including:


      • A CT scan. This test will help determine if you have any hemorrhaging or a skull fracture
      • An MRI (Magnetic Resolution Imaging). This test is use to evaluate the function of the brain.


  • An EEG test (Electroencephalography)-electrodes are placed on the head and measure electrical activity in the brain over time.


    • Brain PET Scan- (positron emission tomography)-this can give the physician real-time visuals of metabolic processes taking place in the brain.

Head trauma victims will often be seen by several doctors such as a neurosurgeon, a neurologist, and a psychiatrist , psychologist, or a neuropsychologist. Other professional help can include social workers, speech and language pathologists, recreational therapists, and a traumatic brain injury nurse specialist.

Some milder head injuries can heal within days, weeks, or months. In serious cases, the first thing an emergency team will examine is that the employee/patient has an adequate supply of oxygen and blood. They will also work to make sure the patient’s blood pressure is monitored.

Some serious traumatic brain injuries which can last a lifetime. Symptoms can include:

  • Pain
  • Confusion
  • Nausea
  • Blurred vision
  • Loss of bodily functions
  • Loss of memory
  • Poor concentration
  • An inability to make decisions
  • Impulsiveness
  • Inability to communicate or speak
  • Inability to understand what is being said when you are spoken to

According to the Mayo Clinic, medications can include:

  • Diuretics which reduce the amount of fluid in tissues and, if given intravenously, can help reduce pressure inside the brain
  • Anti-seizure medications to he help avoid any additional brain damage
  • In some severe cases, drugs that actually induce a coma may be used to reduce swelling and pressure on the brain case.

Surgeries can include:

  • Removing blood clots (subdural hematomas)
  • Repairing a fracture to the skull
  • Draining cerebral brain fluid
  • Creating a window in the skull

Head trauma victims may need the following types of treatments:

  • Physical therapy. This will address the ability of the patient to perform physical tasks such as walking, feeding oneself, sleeping, personal grooming, bowel and bladder functions, and other daily functions. The physical therapist will also help with any pain issues, strength, posture, and balance.
  • Occupational therapy. This therapy will address the ability of the worker to do his former job. It can include the ability to lift and carry objects, perform repetitive tasks, bend, stretch, and manual dexterity. The occupational therapist will also help with the ability to bank and handle budgets.
  • Psychological therapy. Many head trauma patients need help coping with their physical difficulties, depressions, and anxiety. Their family situations are often put under tremendous strain as they often say they no longer recognize the behavior of the brain injury victim.

What to do after a head injury

Head injury symptoms often don’t show themselves right away. If an employee suffers any blow to the head for any reason, the best course of action is to see a physician right away. The sooner the condition is treated, the better the chances for a recovery will be. Also, delay in treatment can be taken as a sign or proof that the injury happened outside of work. Employers and insurance companies will look for any excuse to say your injuries are not work-related.

Your work status and benefits

You should be paid for all of your medical bills until you reach a state of Maximum Medical Improvement. This means that your hospital, therapy, and other bills will be paid until it is clear than additional medical treatment will not help you get any better.

The amount of income you receive will depend on the extent of your recover

  • If you are able to return to your normal job, you will receive 2/3rds of your lost wages up to the time that you are able to return to work
  • If you can return to a different type of work that is less strenuous, because you have a permanent partial disability, you will receive
    • 2/3rds of your lost wages until you can return to work
    • An additional allocation to reflect that you cannot earn the same income as before the blow to your head because you need to work at a less strenuous job (Temporary Partial Disability)
  • If you cannot return to work at all, you will receive 2/3rds of the average weekly wages up to the maximum amount of weeks that North Carolina or Virginia law allows, which, in the most severe cases of brain injury, could mean permanent and total disability , or lifetime compensation.

You may also be entitled to vocational rehabilitation. Many serious brain injury victims need occupational therapy or behavioral therapy to be able to return to their original job. In some cases, the worker can be retrained to do another job. For example, a construction worker who suffers a brain injury when a piece of equipment falls on his head from several stories up, may never be able to do physical labor again. A lot will depend on what the testing reveals are the extent of any permanent cognitive impairments you may have as a result of your brain injury.

Contact a trusted Virginia and North Carolina work injury lawyer now

Lawyer Joe Miller Esq. has helped thousands of employees get the workers’ compensation benefits they deserve. In some cases, he helps workers obtain a long-term settlement of your claim. He works with your medical providers to understand each and every treatment, test, and surgery that will be required and each type of therapy that help you improve your life. He cares about your recovery and your ability to pay for your medical bills and getting paid a regular income. For experienced help, please call (888) 694-1671 or fill out the contact form.

Will I Get Money At My Worker’s Compensation Hearing?

Posted on Friday, June 23rd, 2017 at 11:15 am    

This is a commonly asked question, and even if it’s not explicitly asked, it is certainly a perception that I think that some folks have.  I think it’s important to make sure injured workers and their loved ones do not have this perception. And that is, if you show up at a hearing, you are thinking “I will have a decision the day of my hearing”, and second, “if the Judge rules in my favor, I get to walk out of that hearing with my check. That is all true, right?”

Unfortunately, the answer to that is a big “No.”

With a Jury trial and things like that, when you have personal injury cases, you have a jury, you’ve heard that thing on TV shows like Law and Order when you have the Judge banging that gavel after the jury comes back from deliberations. And the Judge will say, “Ladies and Gentlemen of the jury, do you have a verdict?” And the bailiff will take the piece of paper from the jury foreman and read it out loud in the Courtroom: “We, the Jury find in favor of the Plaintiff, and fix his damages at Five Hundred Thousand Dollars.”

Well, it’s unfortunately not like that with workers comp.   The Deputy Commissioner hears all the evidence at the hearing. You put in your evidence and the other side puts in their evidence. The Deputy Commissioner goes back to wherever they go to their office, and everyone goes home.  And we they get to it, they will have an opinion.

It may be weeks from then, it may even be months after the hearing date. It will come down to an opinion and the decision really is not a monetary award. It’s a thumbs up or thumbs down: Either you have a compensable claim or you do not have a compensable claim. And that’s the decisiand thethe defense has a right to Appeal that decision, even if it’s in your favor.

So not only will you not leave the hearing with your check, you will not even receive a decision that day.

And even when you do receive a decision, it will not be for an amount of lump sum money like in a Civil Jury Trial.  The only time you may end up receiving a portion of lump sum money more than your weekly check is if you are owed a lot of back benefits. But all future benefits the Deputy Commission rules you are owed will be payable on an ongoing basis, one check at a time, one week at a time.

At Joe Miller Injury Law, we do everything we can to first win your case, and then help you get the compensation you deserve as soon as possible. Call (757) 455-8889 to get started on your case.

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