Restaurant Workers and N.C. Workers’ Compensation

Posted on Friday, May 19th, 2017 at 12:59 pm    

Restaurant workers often suffer work-related injuries for a variety of reasons. Many service establishments are understaffed The work hours are irregular causing many workers to be tired. There’s constant commotion between the dining center and the kitchen. The quarters are typically quite tight. For many cooks and servers, getting hurt is almost a prerequisite for the job. Minor injuries can often become major injuries. Some injuries can be permanent and prevent the worker from ever working again.

It doesn’t matter if a worker works full-time or part-time as long as they are an employee. My office represents chefs, cooks, servers, bussers, dishwashers, hostesses and maitre’ d’s, delivery drivers, and anyone who works in any type of restaurant.

Common restaurant- related injuries

Restaurant workers can suffer the following types of injuries:

  • Lifting injuries. Workers often have to lift large bags or items because food is often delivered to the restaurant in large quantities. Any worker who is hurt lifting, carrying, or pushing these large containers has the right to bring a North Carolina work injury claim based on the theory that the injury was due to a work-related accident.
  • Burn injuries. Any contact with a stove, oil, hot grease, scalding hot coffee, or any hot item can cause first, second, or third-degree burns which can require multiple skin grafts. Burns often cause disfigurement.
  • Back and neck injuries. It’s easy to wrench your back or twist your neck while preparing and serving food or lifting heavy pots, pans, or other food items. Most restaurant workers are on their feet all day long except for breaks. Back and neck injuries can cause chronic pain. Sometimes, injections can help. Often, workers have to take time off to manage the pain.
  • Cuts and lacerations. Anyone using a knife or chopping items to prepare feet, cut meat, trim, slice vegetables, or otherwise cut and dice food can suffer a cut or laceration. Cuts can lead to infections. If not treated properly and timely, an infection can require that an arm or hand be amputated.

Common causes of restaurant injuries

While there are many ways restaurant accidents can occur, these are some of the more typical causes and injuries.

  • Slips and falls. Floors at restaurants always need constant mopping because beverages or food falls to the floor and of course, grease. Servers often bang into other service workers or slip on greasy floors that are overdue to be mopped.
  • Mopping, snow, and ice removal. Floors must be continually cleaned of debris. The outside parking lots and entrances have to be shoveled and cleared so customers don’t slip and fall. This type of clean-up can cause back injuries or a slip and fall.
  • Criminal attacks. Because restaurant workers, especially cashiers, work with money, these workers can be the target of criminal attacks and muggings. Any violent crime which occurs while working is compensable in North Carolina, so long as it is not the result of a personal argument or situation.
  • Upset customers. Sometimes, a customer does worse than fail to leave a tip. An angry customer strikes a worker, that worker is entitled to workers’ compensation benefits if the strike causes injuries and is related to the work performed.
  • Explosions and product defects. Heaters, boilers, dishwashers, and other appliances that don’t work can cause explosions, electrical burns, and other serious injuries.

Chemicals used in the restaurant profession can also cause injuries. Loud noises can cause hearing loss or damage.

Repetitive stress injuries

Servers, food preparers, and busboys are constantly lifting and carrying plates and dishes filled to the brim with food. The constant movements can cause lifting injuries and repetitive stress injuries such as carpal tunnel syndrome. The argument that experienced North Carolina workers compensation lawyers use in repetitive stress injuries is that the repetition is covered as an occupational disease.

To be sure, these types of injuries are much more difficult to prove than a traumatic injury.  That being said, North Carolina work injury lawyers can often successfully argue that a catch-all provision of the state’s workers compensation law applies. That provision holds that a worker can obtain benefits if he/she can show:

  • That the work environment exposed the employee to a greater risk of developing carpal tunnel syndrome than for members of the general public and
  • That the work environment was a leading reason for the carpal tunnel syndrome.

These two conditions generally apply in restaurant work. Members of the general public may clean their dishes three times a day. They don’t carry plates filled with seven servings and they don’t carry and clear items hundreds of times a day. Doctors can usually verify that the repetitive stress injury was due to the restaurant work.

Injuries outside the restaurant.

Restaurants often employ delivery staff to transport meals to offices, homes, and venues where parties or celebrations are being held. Delivery personnel who get into a vehicle accident while traveling to these locations can suffer a full range of injuries such as broken bones, traumatic brain injury, and spinal damage. Drivers can also be killed. Any restaurant delivery worker who is hurt while making a delivery would be entitled to North Carolina workers’ compensation benefits.

Make the call to an experienced North Carolina restaurant injury lawyer today

If you are suffering minor aches or a major injury due to work at a fast-food restaurant, local diner, hotel restaurant, five-star attraction, or any type of food service establishment; you may be entitled to workers’ compensation benefits. Benefits include 2/3rds of your average weekly wage loss and payment for your medical bills. If you are permanently injured, you may be entitled to additional benefits.

North Carolina workers’ compensation lawyer Joe Miller Esq. has been fighting for the rights of injured workers for over 25 years. You may have a strong recovery coming your way. Please phone attorney Miller at (888) 694-1671 to schedule an appointment with a respected work injury lawyers.

Rating Guidelines for Upper Extremity Impairments in North Carolina

Posted on Monday, August 22nd, 2016 at 2:00 pm    

Here are more impairment rating guidelines for physicians to use in North Carolina work injury cases. The guidelines are meant to be a starting point. Doctors should also factor into their impairment ratings the oral examination, functional tests, diagnostic tests, and the prognosis for the injured worker.

For a deeper understanding of why the impairment ratings can impact directly the amount of benefits you deserve, watch this video by attorney Joe Miller. He has been a tough advocate for injured workers for over 25 years. His counsel includes working with workers and doctors to fight for the right rating for each worker’s unique set of physical problems.

Upper Extremities

Many of the decision points for doctors are medical terms of art. A few that can help guide the discussion are:
• Ankylosis is stiffness of the joint(s) due to abnormal adhesion and joint bone rigidity.
• Arthroplasty is an orthopedic surgical procedure performed to help restore function of the joints.

The upper extremities means the thumbs, fingers, hands, wrist, elbows, shoulders, and the arms. Doctors should use the follow guidelines to decide if the digit, hand or arm should be rated:
• If damage is limited to the digits (fingers) distal to the metacarpophalangeal joint, then the digit itself should be rated.
• If there is anatomical damage proximal to the metacarpophalangeal joint, a rating for the hand should be given, including any consideration for the digit as a percentage of the hand.
• If anatomical damage includes an area proximal to the elbow joint, the disability rating should be for the arm and include any percentage which would have otherwise been credited for the hand or digits.
• Ankylosis of distal IP joint (in optimum position) = 35% of digit
• Ankylosis of proximal IP joint (in optimum position) = 50% of digit
• Ankylosis of metacarpal-phalangeal joint (in optimum position) = 45% of digit
• Any of the above in malposition = up to 100% of digit
• Ankylosis in optimum position = 35% of “hand”
• Ankylosis in malposition = up to 100% of “hand”
o Limited motion, mild = up to 10% of hand
o moderate = up to 20% of hand
o severe = up to 25% of hand

• Ankylosis in optimum position = 50% of arm
• Ankylosis in malposition = up to 90% (Straightened position not as disabling as marked flexion).
• Limited motion and pain
o Flexion and extension (accounts for 60% of elbow function)
 20º motion in middle range = 35% of “arm” (80 to 100%)
 40º motion in middle range = 30% of “arm” (70 to 100%)
 120º motion in middle range = 5% of “arm” (45 to 160%)
o Pronation and Supination account for 40% of elbow function
 Total loss in neutral position = 25% of hand
 20º motion each way from neutral 20% of hand
 60º motion each way from neural 5% of hand
 Arthroplasty of elbow using prosthesis = 40% of arm
• Ankylosis in optimum position = 50% of “arm”
• Ankylosis in malposition = up to 80% of “arm”
• Resection end of clavicle (distal to coranoid and trapezoid ligaments) = 5% plus limitation
• Fingers and Metacarpals. Mal-alignment, shortening, stiffening, etc., rated according to function of finger. Express as “percent of digit” if loss is distal to MP joint; otherwise, as “percent of hand,” calculated from the sum of each involved digit, reduced to its known percent of hand.
• Carpals: Rated according to function of wrist.
• Forearm fractures
o Mal-alignment. Rated primarily on limited motion in wrist joint. Add for angulation, shortening, weakness, etc. Express as “percent of hand.” Occasionally the elbow must also be rated for loss of motion, expressed in “percent of the arm” and the total impairment calculated from the sum of the parts reduced to their relative percent of the whole.
o Excision of fractured radial head. Full motion with no pain = 10% of arm. Otherwise rate on basis of loss of motion and pain in elbow and wrist.
o Excision of distal end of ulna. Rated on basis of adjacent joint function with minimum loss of 10% of hand
• Fractures of humerus
o Mal-alignment. Rated primarily on basis of limited motion and pain in shoulder and elbow joints, and expressed in “percent of arm.” Add for angulation, shortening, weaknesses, etc., not reflected in loss of joint function.
• Fractures of shoulder girdle. Rated according to function of shoulder joint. Add for pain and weakness in non-union.
• Fracture into a joint. In general, add 10% if minimal displacement, and more if joint surface is irregular. Any time a joint is entered surgically for repair or excision of a part, the minimum impairment is to be 10%
• Loss of sensation (complete and noticeable) (exclusive of tendon damage)
o ½ of distal phalanx = 25% of digit
o ½ of finger = 100% of digit
• Division of flexor sublimis with full extension of finger
o Tendon only = 10% of digit
• Division of flexor profundus
o Tendon only = 75% of digit
• Division of both profundus and sublimis tendons.= 90% of digit
• Arthrodesis of distal IP joint = 35% of joint
• Arthrodesis of proximal IP joint = 50% of digit
• Arthrodesis of MP joint = 45% of digit
• Above ratings are for arthrodesis in optimum position. Add for malposition.
• “Contractures” of joints or “limited motion and pain.” Impairment determined on basis of severity as compared to arthrodesis of the joint.
(Rated on basis of loss in the “hand.” If lesion is high and involves structures above biceps insertion, then loss is rated on the “arm.”)
• Ulnar nerve injury
o Complete motor and sensory = 60% of “hand”
o Complete motor and partial sensory = 50% of “hand”
o Motor only = 40% of “hand”
• Median nerve injury
o Complete motor and sensory = 90% of “hand”
o Complete motor and partial sensory = 60% of “hand”
o Motor only to thumb = 35% of “hand”
• Radial nerve injury
o Motor and sensory = 75% of “hand”
• Above estimates are given prior to any reconstruction and may be reduced considerably by reconstructive surgery.
• If contracture has occurred in the digits, additional impairment should be added.

Speak with an Experienced North Carolina Workers Compensation Attorney Today

A slight variance in an impairment rating can be a huge difference in a worker’s wallet, particularly if the injured worker has returned to alternate employment and is earning the same as pre-injury. To help you get the right rating, it is crucial that speak with a knowledgeable North Carolina injury lawyer who understands the complex medical jargon and who has worked with work injury doctors. For help now, call North Carolina Workers’ Compensation attorney Joe Miller today at 888-667-8295. You can also fill out his contact form.

Rating Guide Criteria for Doctors in NC Workers’ Compensation Cases

Posted on Monday, July 25th, 2016 at 11:00 am    

The North Carolina Industrial Commissions provides guides to physicians for determining how to rate the impairments for specific types of injuries. The guidelines are just a starting point and not a precise definition. Doctors who are making an evaluation of the impairment rating of a worker can use the guides but they should also factor in the intangible factors such as the amount of pain the worker can endure, how weak the employee is, the dexterity of the worker and other factors.

The guides are for injuries to the upper extremities, lower extremities and the spine. In North Carolina work injury cases, the doctor examines the affected body part and then assigns an impairment rating based on how well or how poorly the worker can use that part. Oftentimes, the doctor defers to a functional capacity examination (FCE) to help determine the level of loss of function. For example, the doctor may say the worker has 20% permanent impairment in his or her right upper extremity (arm). The impairment rating is just one factor in the amount of wage loss benefit the employee will get and the length of those benefits.

The final impairment rating should be based on the physicians’ knowledge, the clinical examination of the patient, and the doctor’s experience.

Some Recent Concerns by Doctors about the North Carolina Impairment Requirements

Some of the more recent issues that doctors and lawyers have raised about when and how to do their impairment ratings are:

Rating and Release

Due to some changes in the law, impairment ratings are becoming more and more important in North Carolina work injury cases.

Recent changes, for example, allow a worker to be forced to engage in ‘fake’ jobs if some residual disability prevents him from actually getting and keeping a job, and the doctor agrees it would help the injured worker, regardless of whether or not he has reached “maximum medical improvement”. This change has meant more litigation, between the employer and claimant, about the ability of the worker to perform the tasks in a given available job. The ratings, along with the analysis of the worker’s physical limitations can help or hurt the employee’s argument that he/she is not able to do the specific available job.

The rating can be given when the patient has reached maximum medical improvement even though the doctor may have already concluded that additional surgeries or additional medical treatments will not help the worker.

The North Carolina Industrial Commission guidelines for impairment ratings are not the same as the American Medical Association ratings. There is not a direct correlation between the two. Doctors, in North Carolina work injury cases, should begin with the Commission guidelines because those guidelines were designed to match the North Carolina Workers’ Compensation Statute.

The Right of the Worker to Get a Second Opinion as to a Rating

The employer is obligated to pay for the first medical opinion and treatment as to any permanent partial impairment. The employee can get a second medical opinion with a doctor of his choosing only as to the rating – at the employer’s expense, after the employer obtains a rating and where the worker is dissatisfied with the impairment rating offered by the worker’s original treating doctor. The employer and insurance carrier can also request that a second medical opinion be obtained. In some cases, such as where the worker does not have legal counsel, the Commission may recommend that there be an independent medical opinion. Litigation often centers around the situation where the two medical opinions contradict each other. Workers should review the right to a second opinion with an experienced North Carolina Workers’ Compensation attorney.

For a more in-depth discussion of your rights to a second opinion under NC Workers Comp Law, Click Here.

Medical Records

The medical provider should understand that the following people are entitled to medical rehabilitation records, the testimony of the doctor, and the opinions of the doctor – as a matter of course:

  • The patient if not represented by an attorney
  • The patient’s counsel
  • The employer or the insurance carrier, usually through their attorneys and/or nurse case managers or insurance adjusters.

If one side (employer or employee) has the records, then the other side should be able to get those records, without charge. In most respects, therefore, at least as to the employer and its representatives, the rules and laws on privacy and privilege as to your medical privacy do not apply.

The medical records, along with the history and patient notes, can often help determine if the work injury is compensable. For this reasons, workers should consult with their work injury lawyer before seeing their doctors. The lawyer can help explain what questions may be asked. Submission of the medical records and opinions can often mean that there is less of a need to depose the treating doctor – depending on how clear and concise the records are.

Rehabilitation Personnel

Insurance carriers often use nurse case managers to monitor the care the patient is getting, to help the employee keep scheduled appointments and take the prescribed treatments. These nurses may also help the employee return to a job they can manage. The Workers’ Compensation law does allow for these nurse case managers.

Many employees, employee counsel, and even the doctors have complained that the nurse case managers are not acting as facilitators. They are acting as advocates for the employer or insurance company. Doctors should understand that the nurses are to act only as facilitators. Nurse case managers cannot direct the worker’s treatment. Decisions with regard to the patient’s treatment always remain with the worker’s treating doctor. If the employer attempts to direct treatment in opposition to the worker’s doctor, the worker can and mostly likely should request that the Commission put a stop to such behavior.

Doctors should also understand that the nurse case manager does not have the right to be present in the examination room at all times. The patient is entitled to a private conversation with his or her doctor.

Call North Carolina Work Injury Attorney Joe Miller for Help Now

If you were hurt while working on the job, you need a lawyer who will fight for you. A strong advocate understands the legal and medical complexities of workers’ compensation Cases. Often the difference between a good result and a bad result can be the attention to detail and a full understanding of the law. To speak with a strong advocate today, please phone lawyer Joe Miller today at 888-667-8295 . You can also complete his contact form.

Functional Capacity Exams (FCE’s) in North Carolina and Virginia Workers’ Compensation

Posted on Wednesday, July 20th, 2016 at 2:00 pm    

A Functional Capacity Evaluation (FCE) is oftentimes performed in both Virginia and North Carolina Workers’ Compensation cases. It is typical performed once the injured worker has reached MMI (maximum medical improvement) as determined by his or her authorized treating physician.

The purpose of the FCE test is to determine the severity of a physical impairment. It is used to evaluate the extent of the impairment, the likelihood of the success of future treatments, and mostly the ability of the worker to do his or her job. The test is usually performed by an occupational or other physical therapist – someone who understands how impairments impact various occupations. It usually lasts several hours, and sometimes even takes two office visits to complete.

Attorney Joe Miller has been advising injured workers for over a quarter century. Part and parcel of this advice is explaining some procedures such as functional capacity exams (FCEs) that are done for evaluation purposes only. He helps the client prepare for the exam by informing the worker what to expect and how to prepare for the exam ahead of time. It is his attention to all the little details and his strong advocacy that has enabled him to help thousands of injured workers obtain significant recoveries.

What happens at the functional capacity evaluation?


The physical therapist will typically examine the following:

  • The worker’s functional abilities via various modes of testing
  • Very specific testing including range of motion, lifting capacity, pain tolerance and more
  • Evaluation as to whether the employee can return to the job he/she did before the injury
  • Sometimes there is commentary on what might help the employee get back to work
  • What other medical treatment might help
  • What physical limitations any potential employer will have to consider for this particular employee
  • Permanent partial impairment ratings for the injured body part.

The entire test can take several hours. The employee will be asked to perform many tasks such as bending, carrying objects, walking, climbing, pulling, fingering, kneeling, talking, testing his/her range of motion, balance, and other work factors. The occupational or physical therapist will tackle the limitations from many vantage points such as sitting and standing.

The physical therapist will typically then use the standards set forth by the U.S Department of Labor’s guidelines to rate the employee’s work capabilities based on the testing performed.

  • Functional Capacity Exams (FCE’s) in North Carolina and Virginia Workers’ CompensationHere, the worker may be required to move or lift up to 10 pounds.
  • Here, the employer can comfortably handle 10 pounds and sometimes up to 20 pounds.
  • Workers who can do medium work can exert between 10 to 25 pounds comfortably and can handle up to 50 pounds on occasion.
  • Heavy. Here, workers can handle 25 to 50 pounds frequently and sometimes up to 100 pounds.
  • Very heavy. This worker can exert up to 20 pounds constantly, 25 to 50 pounds frequently, and over 100 pounds occasionally.

The Role of the Workers’ Compensation Attorney

The test is sent to the treating physician. The employer or insurance pays the FCE professional so it is crucial to review what happens with your attorney before you attend the evaluation. The physical therapist and employer is looking to see if you are faking or exaggerating your physical difficulties.

WARNING: There are some known FCE facilities that are “rigged” against employees, so it is critical that you inform your attorney as to the FCE facility where you are referred as soon as possible. Your attorney may be able to get the facility switched, especially if your treating doctor did not specify the facility where the testing will be performed in his or her referral.

The lawyer will explain what happens, what your rights are, and that you should not be a hero – you should say what hurts you and where. In some cases, particularly in North Carolina, your attorney may ask for a reevaluation of the FCE if the disability rating by the doctor appears to be incorrect. Your attorney will work hard so the FCE professional has the correct job description and that the facility is known as one that conducts unbiased testing.

How the FCE is used

There are two types of FCE tests:

  • Job Specific. This type of FCE focuses on the ability of the worker to perform the tasks of a specific job. Sometimes it is done at the therapist’s office but it can also be done at the job site. The aim here is to see if the employer can do his/her prior job – with our without restrictions.
  • General Purpose/Combination. These more common FCE’s are usually done if the job no longer exists or if the job functions have not be set, or if we are attempting to learn the employee’s capabilities in the previous job and in any potential alternate job. The tests are standardized. The test helps to determine if the worker can do future jobs that arise.
  • Permanent Impairment Ratings to Body parts--The FCE can also be used to determine the impairment rating for any worker with a permanent injury in a ratable body part. The impairment rating is a percentage that is assigned to the particular body part. For more on Permanent Impairment Ratings and what they mean, please see this video.


Contact an Experienced Work Injury Lawyer Before You Take a Functional Capacity Exam

The employer and insurance company are seeking to get you back to work as soon as they can so they can stop making benefit payments. North Carolina and Virginia lawyer Joe Miller has the experience and skills to fight early returns to work. He also understands how permanent impairment ratings should help you not hurt you. If you were hurt on the job, call attorney Joe Miller for help at 888-667-8295. You can also complete his online form for an appointment.

Medicare Set-Asides (MSA’s) in North Carolina Settlement Agreements

Posted on Thursday, October 8th, 2015 at 2:28 pm    

Employees who have an MSA (Medicare Set Aside) account as part of their settlement should get a separate check from the employer or insurance carrier to cover the cost of future medical expenses. Self-administered accounts should be deposited into a separate account that is used just to pay for the employee’s medical expenses – and no other expenses. Some MSAs are not self-administered. Here, the employee will normally get a yearly check for the anticipated medical bills. (more…)

Settlement Keys in North Carolina Back-to-Work Cases

Posted on Monday, August 10th, 2015 at 10:56 am    

In considering any overall settlement of a North Carolina Workers Compensation case that is accepted, where the worker can return to work but with medical restrictions, the worker and his/her attorney will likely take a look at the following key items: (more…)

New Pressure to Resolve Cases and Obtain Vocational Rehabilitation

Posted on Wednesday, July 29th, 2015 at 10:16 am    

There is a plus side to the new North Carolina Worker’s Compensation law as it relates to vocational rehabilitation professionals. N.C.G.S. 97-32.2. can now be used to pressure the insurance carrier to resolve your claim and to get you retrained for new work.

Prior to the new law, vocational rehabilitation was rarely a viable option for the worker. It was a one-sided tool used only by employers and workers comp carriers. Now, under the new law, vocational rehabilitation has now been included in the definition of “medical compensation,” which means it must be provided under NCGS 97-25.

The employee can request vocational rehabilitation provided the employee hasn’t returned to work or is working but earning less than 75% of pre-injury earnings. Vocational rehabilitation includes education at a North Carolina Community College or a State University, so long as the education is “reasonably likely” to “increase substantially the employee’s wage earning capacity.”

Because vocational rehabilitation is costly (schools cost money for tuition and the worker needs some income while being trained), insurance companies now will be forced to factor in the cost of vocational rehabilitation in any attempt to settle all the worker’s compensation issues.

Joe Miller, a North Carolina Workers’ Compensation Lawyer, Can Explain the New Retraining Laws

You may be entitled to more benefits as a result of the new law. If your education and work skills aren’t a good match for the new economy, you may be eligible for a full college or university education or other retraining. Joe Miller has helped other injured workers get retraining benefits in North Carolina. Please give us a call at Joe Miller Law at 888-694-1671 and ask for me, Joe Miller, complete my online form or email me at

Can Your Lawyer Approve a Workers’ Comp Settlement Without Your Permission in North Carolina?

Posted on Tuesday, March 10th, 2015 at 6:36 pm    

No attorney can or should approve settlement of any legal matter including a North Carolina worker’s compensation case without your permission. Your lawyer works for you and you have the right to be informed and the right to make the decision as to settlement. As a practical matter, workers’ compensation settlements are approved through a strictly enforced process which requires that the client sign off on the settlement before it will be approved. The most a North Carolina Workers’ Compensation lawyer can do is recommend a settlement and explain the pros and cons of settling versus continuing with the litigation. (more…)