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

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

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

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

Accommodation by the Employer-The Kiss of Death

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few scenarios to be aware of

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

 

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

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

 

What 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.

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.

Vision Loss in North Carolina Workers Compensation

Posted on Friday, May 19th, 2017 at 12:39 pm    

Some work injuries are much worse than others. Many injuries such as broken bones do heal over time. Some injuries may slow the worker down but don’t prevent the worker from working entirely. Unfortunately, there are some workplace injuries that tragically alter an employee’s life forever. Loss of vision is one of those catastrophic injuries.

Because vision loss is so life-changing, North Carolina treats these workplace or occupational illnesses differently than standard injuries.

Types of accidents that can loss of vision

Workers may suffer the loss of one or both eyes or retinal detachment for the following reasons:

  • Being hit with some type of projectile object such as wood splinters, glass shards, and other tiny items that cause a scratched cornea or cause irritation. The danger of projectiles is one reason many workers wear goggles.
  • Exposures to minute items of sawdust, silica or sparks;
  • Radiation due to ultraviolet or other radiation. Fluorescent lights, lasers and even natural light often have much more light than is needed to do the job. The excess light can result in a loss of vision. Of course that would be more of an occupational disease claim and harder to prove.
  • A slip and fall to the head cause traumatic brain injury and loss of vision
  • Some other type of head trauma. Slips and falls, vehicle crashes, assaults by other workers are just a few reasons head trauma can occur.
  • An explosion due to a faulty appliance or piece of equipment
  • Chemical burns caused by splashes can cause blindness or serious injury
  • Excessive exposure to bright light such as in welding.
  • Tools including nails, wires, saws, and staples, can enter the eye causing damage. Blunt force trauma
  • Computer usage. Some workers rely on the backlight of computers to see instead of proper overhead light. In addition, constantly looking at computer screens without taking necessary breaks can cause eye problems and other problems such as migraines and nausea. But again, anything that occurs over time would be more in the nature of an occupational disease claim and far more difficult to prove than a trauma.

Benefits for vision loss

All North Carolina workers are entitled to compensation for any medical surgeries or doctor visits that are reasonably necessary to help improve an injured employee’s health. There may be surgical procedures that can help a person who suffers loss of vision. A lens transplant, for example, may be a possible way to improve eyesight. An experienced North Carolina workers’ compensation attorney such as Joe Miller will work with your eye doctors to determine your diagnosis and whether any treatment is possible. If the eye injury is compensable, he will argue that any surgery that might reasonably improve the worker’s eyesight should be paid for by the employer’s insurance company.

All workers are entitled to 2/3rds of their lost wages until they return to work or until a maximum period of 500 weeks has elapsed.

If an injured worker returns to work, he or she may still be entitled to additional compensation of 2/3rds of their average weekly wages for an additional period if their vision loss is permanent. For eye loss, the schedule is as follows:

Loss of one eye. Maximum (other than pay for being out of work):  120 weeks. If the use of the eye is total or the loss of vision is total, the injured worker is considered to have a loss of an eye and is thus eligible for the 120 weeks of compensation. Partial eye loss is handled somewhat differently. For partial loss, the employee seeks a review by an ophthalmologist who, after a full examination, places a percentage of eye loss or vision loss on the injury. For example, the eye doctor can say the eye loss is 10%, 50%, 70%, 85%, or 95%. If the percentage is 85% or higher, loss is treated as a full loss and the employee gets the full 120 weeks’ compensation. Otherwise the percentage of benefits will correspond to the percentage of loss. For example, a 10% loss means the worker gets 10% of 120 weeks or 12 weeks for the eye. A 50% loss means ½ of 120 weeks or 60 weeks.

Loss of both eyes. If there is vision loss in both eyes, that may be considered a total and permanent disability, which means the claim is not limited to the 500 week maximum. Rather, the injured employee may be entitled to lifetime compensation benefits at 2/3rds of the average weekly wage. In such case, the 120 week scheduled benefit becomes irrelevant. It would be up to the Industrial Commission to determine if the employee qualifies.

If the employer can show that the employee is capable of return to suitable employment, despite the loss of vision in both eyes, then the employee would not be entitled to lifetime compensation.

Disfigurement

Sometimes, tragically, the loss of the eye is accompanied by severe disfigurement. If the workers’ face or head is disfigured along with the loss of vision, then the worker may be entitled up to an additional sum not to be more than ten thousand dollars ($10,000.00). For example if there is extremely noticeable scarring elsewhere on the face, that would be something the Industrial Commission would consider awarding an additional sum of $10,000.00 for.

Vocational rehabilitation

In addition to medical, wage loss, eye loss and disfigurement compensation; an injured worker who becomes blind or loses vision may be eligible for vocational rehabilitation so they can learn a new job skill. There are schools for the blind and those with vision loss to enable the worker to communicate and use his/her skills. This right to vocational rehabilitation is more likely to apply for educated workers, office workers, and others who didn’t rely on their eyes to do manual labor.

Today, computer technology can also help the worker who suffers vision loss. The employer’s insurance carrier may also be required to pay for this new technology. The carrier may also need to pay for seeing eye dogs, transportation, and other services or tools that help the worker get to work and do his/her job.

Speak with a skilled North Carolina workers’ compensation lawyer as soon as possible

If anyone you know suffers from vision loss due to a workplace accident, they may have a strong recovery coming to them. Attorney Joe Miller Esq. has helped thousands of North Carolina and Virginia workers get their full workers’ compensation benefits. He has been helping injured workers for over a quarter of a century. Vision loss can often be traced to a workplace accident. For answers to your questions and caring counsel, please call lawyer Joe Miller at (888) 694-1671 to schedule an appointment.

 

Restaurant Workers and N.C. Workers’ Compensation

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.

Heavy Lifting and North Carolina Workers’ Compensation Claims

Posted on Friday, May 19th, 2017 at 12:34 pm    

Lifting heavy objects is one of the principal causes of shoulder, back and spine pain. For most every job  in construction, manufacturing, warehouse work, agriculture labor, the trucking industry, or any manual labor job – heavy lifting is part of the job requirement. Lifting can include boxes, inventory, materials, equipment, furniture, and any item that helps create or sell products.

According to the Bureau of Labor Statistics, over a third of workplace injuries that required that the employee miss time from work were due to back or shoulder injuries. Lifting injuries generally occur due to overexertion and cumulative trauma. Lifting injuries can also include elbow and wrist injuries, muscle pulls and strains, and spinal cord damage,

There are many factors that increase the likelihood of lifting injuries. Employers should have practices and procedures in place to minimize these factors and help the workers.

  1. The weight of the objects. Generally, loads that weigh more than 50 pounds should be avoided.

Some objects put more stress on the worker than others. Heavy tools and machinery, large wire spools, and bundles of conduit should be handled with extreme caution.

Some of the practices and procedures employers should use to help with heavy objects are:

  • Use mechanical devices such as fork lifts, transformers, and duct lifts.
  • Pallet jacks and hand trucks should be used when possible
  • Avoid things that roll because they can be hard to stop
  • Suction devices can help to lift boxes and other objects that have a flat surface
  • Machinery can be loaded into vehicles with the use of a ramp
  • Lifting should be done properly. Heavy objects should be positioned at “power zone” level – between the chest and mid-thighs. The spine should be properly aligned when lifting. Bend at the knees and not the wait when lifting.
  • Try ordering supplies in smaller amounts. Ask the vendors to reduce the weight of the objects they supply prior to the delivery.
  • Use mechanical lifts for prefabricated items.
  • Use two or more people if the weight of the object is more than 50 pounds.
  1. Awkward postures. Lifting injuries often happen or are worsened because the lifter is bending incorrectly. Employees who bend while lifting force the back to support both the employee’s upper body weight and the weight of the object they’re lifting. The bending can cause as much pain as the lifting.

 

Bending also shifts the object being loaded away from the employee’s body making leverage more difficult and making the back and lower spine work harder. Reaching puts more strain on the shoulders.

Possible solutions:

  • The area around the load site should be clear so the employee can get the proper leverage to transport the load.
  • Employers should not carry a load on a shoulder, under their arm, or using one hand.
  • Lift with your legs
  • Move the object close to you when lifting.
  • Position the object in the “power zone’ mentioned above before beginning the lift. Lifting outside of the power zone puts stress on the back, legs, and knees if you are lifting from below the mid-thigh. Stress is placed on the shoulders, upper back, and arms when lifting from above the chest.
  • Put items on shelves, tables, or other surfaces so you don’t have to bend or reach when starting the lift.
  • Better to turn the feet than to turn the torso
  • Keep your elbows close to your body to avoid reaching
  • Use aerial lifts when possible to elevate the worker and position the worker closer to the object being lifted
  • Carry small loads in each hand to help balance the load.
  • Use buckets and other objects that have handles to help carry the load
  1. High-Frequency and Long-Duration Lifting. Holding objects for too long a time period, even if the objects don’t weight too much, increases the possibility of back or shoulder injury because muscles may not get the nutrients then need. Repeated exertions, for example if the worker is pulling wire, can tire the muscles because the time to recuperate the muscle is limited.

Possible solutions

  • Use a lightweight template (cardboard for example) to mark the holes where drilling will take place especially when mounting items like junction boxes and service panels. This helps reduce the time the heavy object needs to be held while the worker finds the right level and the right anchor mounts.
  • Use mechanical lifting devices or stands to hold the heavy and awkward objects
  • Rotate the lifting and holding tasks among employees.
  • Work in teams so that one person lifts while the other person does the assembly
  • Take schedule breaks to give the muscles time to rest. Rest breaks increase the quality of work because the employee isn’t working while tired.
  • Try to pre-assemble objects where possible
  1. Inadequate Handholds. If objects are too hard to hold, they are tougher to lift. Workers then need to move away from the load and lower the point where the lift begins. This raises the danger of body stress and also of dropping the object.

Possible Solutions:

  • Use proper handhold such as handles, slots or holes. The handles should be large enough for an employee who is wearing gloves.
  • Ask the vendors to make containers with adequate handholds
  • Move items from containers that don’t have handholds to ones that do have handholds
  • Wear equipment such as gloves to protect the fingers. Solid grips should be provided
  • Use suction devices

Employers should also be aware that excessive cold or excessive heat can make lifting harder. Cold decreases muscle flexibility. Heat can cause dehydration and fatigue. The area where the lifting is taking place should be well lit. Warm clothing should be worn if the weather is cold. Workers should drink a lot of water when it’s hot to avoid dehydration.

Speak with a highly qualified work injury lawyer if pain is preventing you from working

Pain from lifting is a complicated workers’ compensation issues because North Carolina and Virginia work injury claims generally require a showing that an accident caused the injury. The defense lawyer may argue that the pain existed before you started working. For strong advocacy and experienced legal work injury advice, please phone lawyer Joe Miller. He has been getting just recoveries for injured employees in both North Carolina and Virginia for over 25 years. To make an appointment, please call us at (888) 694-1671 or complete the contact form.

Why Scissor or Aerial Lifts Can Lead to a North Carolina Workers Compensation Claim

Posted on Friday, May 19th, 2017 at 11:57 am    

Scissor lifts allow workers to do their job high above the ground through the use of scaffolding that is motorized. Scissor lifts are used in construction, manufacturing, and even the entertainment industry. They are most commonly used in warehouses.

The Occupational Safety and Health Administration (OSHA) has, however, issued warnings about the dangers of scissor lifts. During a one-year period OSHA investigated 10 scissor lift related deaths and 20 serious injuries. The investigation revealed that workplace injuries were happening due to a failure of the employer to monitor the position of the scissor lifts, faulty fall protection strategies, and not stabilizing the lifts. In North Carolina workers’ compensation cases, it is not necessary to prove fault if an accident occurs. Still, the best workplace strategy is to take precautionary steps to prevent the accidents from happening.

OSHA safety suggestion for scissor lifts

OSHA recommends that employers use the following scissor lift safety measures:

  • Train the workers. Only workers who have experience using the scissor lift should be allowed to operate the lift the lift. Proper experience also includes understanding how to maintain the lift if problems. Workers should have and follow the manufacturer’s instructions. Workers should wear the correct safety equipment.

 

Workers must be trained by the employer on the dangers of using a scissor lift and how to work safely on or near the lift. Training should also include:

  • Instructions on up and down use of the scissor lift and horizontal movement of the lift.
  • Understanding what weight limits and restrictions apply.
  • Instructions on how to use objects that are on the lift

 

  • Protect workers from falls According to the Code of Federal Regulations, employers scissor lifts are required to have guardrails to prevent workers from failing. Employers should train their employees to look to see if the guardrails are in place before doing any scissor lift work. Workers should only stand on the platform – never on the guardrails. The employees should be able to reach their work easily so they don’t risk falling.
  • Stabilize the lift. Scissor lifts shouldn’t bounce, move or shake. They should be stable so they won’t collapse. The movement of the scissor lift should match the manufacturer’s recommendations on usage. Lifts should move electronically to the right spot – they shouldn’t have to be positioned manually. Forklifts and other machinery should be clear of the scissor lift so the other equipment doesn’t bump into the scissor lift. Work locations should be on flat floors. This means no slopes, debris, obstructions, or hole.

 

If scissor lifts are used outdoors, they should be used when the weather is clear and not too windy. Winds 28 mph and more are considered unsafe.

In one notable case,  a Notre Dame student who was working on scissor lift during the 2010 football season was killed while taking film of the football team’s practice. The student never should have been lifted up nearly 39 feet to film the practice because there were winds gusts of more than 50 mph. The wind gust is what caused the student to die.

  • Properly position the lift. The scissor lift should not be positioned near any safety hazards or loose wires. A real danger with scissor lifts is that they can cause crushing injuries which pin the employee against a wall, a fixed object, or another piece of machinery. Anyone using the scissor lift should not be near:
    • Fixed objects
    • Any moving vehicles
    • A support beam or a door frame
    • Any place where an electrocution or electric spark can occur. This means extra care should be used when using the scissor lift near power lines or utility lines. Electricity can easily jump from a wire or cable to the scissor life killing or severely injuring the worker. Ground guides should be used when the scissor lift is in operation. The best solution is to be 10 feet or more away from any overhead hazard.

 

Employees who operate a scissor lift or who are positioned in a scissor lift should have electrical training.

  • Properly maintain the scissor lift. Employers must routinely inspect their lifts to make sure they are safe to use. Maintenance should following the manufacturer’s instructions. The manufacturer’s manual normally includes instruction on how to:
    • Be sure the guardrails are in working order
    • Verify that the brakes will hold the lift in the right position.

Employers should report equipment defects and maintenance needs and warn the worker that the scissor lift should not be used until the defect has been repaired or the maintenance need has been fixed.

According to OSHA, workers should know they have the following rights:

  • The right to working conditions that don’t endanger the worker or create an unreasonable risk of serious injury
  • The right to get necessary training and information about workplace hazards and the ways to prevent harm – in an understandable language and vocabulary
  • To be informed that OSHA standards apply to their workplace
  • To review any records of work-relate injuries or illnesses
  • To file a complaint requesting that OSHA inspect the workplace if the employee thinks the employer is not complying with OSHA rules and is not putting necessary safety safeguards in place. OSHA should keep this request confidential
  • The right of the worker to exercise his/her rights without fear of retaliation such as job termination. If workers suffer retaliation for disclosing safety violations, there are time limits for bringing a complaint

The worker’s OHSA rights extend to scissor lifts.

Get help with your North Carolina or Virginia workers’ compensation claim now

Attorney Joe Miller Esq. has been fighting for the rights of injured workers for over 25 years. He has helped thousands of employees get compensation for wage loss, medical bills, and other work injury benefits. He understands the many different ways workplace accidents can happen and how to prove accidents were work-related. For immediate help, please phone attorney Joe Miller at (888) 694-1671. You can also reach him through his contact form.

Strong Representation for Virginia and North Carolina Truck Drivers Hurt on the Job

Posted on Friday, January 6th, 2017 at 9:45 am    

Driving a truck exposes the driver to the possibility of many different accidents and different injuries. Some of the accidents can be caused when driving. Other accidents may happen when the truck driver is loading or unloading the inventory and cargo. The reason for the accident isn’t a factor in North Carolina or Virginia workers’ compensation matters. If the truck driver was an employee, the accident happened while he/she was working for the employer and the resulting injuries prevent the driver from working – then the driver of the truck should  be entitled to workers’ compensation benefits. (more…)

FAQs about North Carolina Mediation

Posted on Wednesday, December 7th, 2016 at 2:00 pm    

What are the settlement rates at North Carolina Industrial Commission mediation conferences?

Settlement rates at IC mediation conferences have historically been at or above 70%.

Does the Commission order all workers’ compensation cases to mediation?

Under the automatic referral procedures commenced during the 1996-97 fiscal year, whenever a party files a request for hearing in a workers’ compensation claim, the Clerk’s Office sends an Order for Mediated Settlement Conference to all parties along with the Commission’s acknowledgment letter.

The only cases that are not automatically referred to mediation are claims against the state brought by prison inmates, which are excluded by law, expedited medical motions and administrative appeals.

Cases involving injured workers who are not represented by counsel are generally mediated only if all parties agree to mediate

Cases involving non-insured employers are generally mediated only if all parties agree to mediate and the Deputy Commissioner responsible for the adjudication of non-insured cases approves the parties’ request to refer such cases to mediation.

How are mediators selected or appointed?

The parties have the right to select a mediator certified by the Dispute Resolution Commission on their own and may do so within the time periods specified by the ICSMC Rules. If the parties do not have a specific mediator in mind, they can select one from a list of mediators available on the Commission’s web site or from the Dispute Resolution Coordinator’s office. Our office has our ‘favorites’ who we feel do a good job for our clients and will typically select those mediators if we can, barring some major objection from the defense.

How does a person become eligible to be appointed by the Commission?

To be appointed by the Industrial Commission, a mediator must be certified by the North Carolina Dispute Resolution Commission to mediate cases in North Carolina’s Superior Courts through the court’s mediated settlement conference program. The mediator also must have a Declaration of Interest and Qualifications form on file with the Commission. The declaration must state that the mediator, if an attorney, is a member in good standing of the North Carolina State Bar; that the declarant agrees to accept and perform mediations of disputes before the Commission with reasonable frequency when called upon for the fees and at the rates of payment specified by the Commission.

Can a mediation conference be postponed after it has been scheduled?

After a mediation conference is scheduled to convene on a specific date, it may not be postponed unless the requesting party first notifies all other parties of the grounds for the requested postponement, or without the consent and approval of the mediator or the Dispute Resolution Coordinator.

Which party is responsible for paying the mediation fees?

Generally, the worker and the employer split the mediator’s fee though sometimes payment of the fee can be adjusted as part of any overall settlement.

What are the rules that govern mediators?

All mediators must adhere to the Standards of Professional Conduct for Mediators adopted by the North Carolina Dispute Resolution Commission.

To what person should a party address motions while a case is in the process of being mediated?

Motions related to the ICMSC (Industrial Commission Mediated Settlement Conference) Rules should always be addressed to the Dispute Resolution Coordinator, but all other motions should be addressed to the Industrial Commission’s Executive Secretary, unless the case has already been assigned to a Deputy Commissioner or a Full Commission panel, or the motion is otherwise subject to the Commission’s expedited medical motions procedures.

What should the worker bring to the mediation conference?

An experienced North Carolina workers’ compensation lawyer will prepare your case for mediation by making sure all the appropriate medical reports, bills, and future cost estimates are available. The attorney should also have ready any vocational reports or other documents. Additionally, the attorney will review what happens at the mediation, and what the worker’s negotiating points are in advance, and the best way for the injured worker to conduct him or herself at the mediation. The employee is not required to speak or testify at the mediation. With an experienced work injury attorney, such as Joe Miller, the mediation should run smoothly with minimal surprises.

What if the mediator is biased?

Mediation is an attempt to resolve a dispute. If either party does not think the mediator is working towards a fair resolution, the party (including the employee) can request a full hearing. The worker, or the worker’s lawyer, may also seek to have a clearly biased mediator disqualified and request that a new fair mediator be appointed.

Is there more than one mediation?

Generally, no. The parties should be prepared to discuss all the relevant issues at the assigned mediation. If any issues cannot be resolved, then the mediator will report that there was an impasse and the case will then proceed to a hearing before a North Carolina worker’s compensation Deputy Commissioner.

How long does the mediation take?

It varies. Some mediations can take a very short time – less than an hour. Usually those are the ones that do not settle. Most mediations several hours to make sure all the issues are addressed and all the details are addressed. A lot of mediation comes down to getting the math right – making sure all the future medical bills and all the lost wages are addressed. Other issues such as discounts for lump sum payments and any moneys that might be owed to other government agencies who advanced money may also need to be finalized. Once an agreement is reached, you can’t reopen the process. So, it is important to be prepared and get all the details right. That is also a big advantage in North Carolina. If an agreement is reached, the Mediator will draw it up on a special form. That form carries the weight of a Court Order. This is so that if anything should ever happen to the injured worker, the money is still required to be paid on the claim by the insurance company. That’s a major reason for hiring a North Carolina workers’ compensation lawyer who has successfully negotiated many mediations.

What issues get discussed at the mediation before settlement figures are discussed?

The mediation topics are going to vary depending on whether the claim is accepted or denied. We obviously prefer to mediate accepted claims, as we are in a stronger position. This is because the employer and insurance company have obligated themselves to pay the injured worker on an ongoing basis and cover the ongoing medical bills. Therefore, the only issues typically will relate to the degree of impairment of the worker and his or her ability to return to work, as well as future medicals.

When the claim is denied, them many more issues may come into play, just as they would at a hearing.             Some common mediation topics are:

  • Did the worker truly suffer a compensable injury?
  • Has the worker been held out of work by his or her doctors so that he or she deserves benefits from the date of the accident and ongoing?
  • Do the medical records support a compensable injury?
  • Do the doctors support a connection between the work injury and the workers’ current disability from work?
  • Whether the worker can change doctors?
  • What medical bills should be paid?
  • Is light-duty work available?
  • What is the nature of the disability – temporary or permanent?
  • What is the present value of the workers’ ongoing workers’ compensation benefits?
  • Are the any rehabilitation or vocational education issues?
  • What is the correct average weekly wage?
  • Are there going to be payments for adaptive vehicles or mobile homes?

 

Many other issues get discussed. Your North Carolina work injury lawyers will address all the ones that apply to your situation.

Make an appointment with a Professional North Carolina Speak Work Injury Lawyer Today

Mediation is a negotiation. The employer and the employer’s insurance company will have an experienced attorney fighting for them. You need a North Carolina work injury lawyer who understands mediation and has a track-record of success, with a team behind him that knows how to put you in the best position to successfully resolve your claim at mediation. Attorney Joe Miller, Esq. has been helping injured workers for over a quarter century get justice. He will fight to get you every dollar you deserve and will only work towards a settlement when you know your medical condition. Call now at (888) 694-1671 to get answers to your questions. You can also fill out my contact form to make an appointment.

Pros and Cons of Workers’ Compensation Mediation in North Carolina

Posted on Monday, December 5th, 2016 at 2:00 pm    

What is mediation?

After the injured worker files a work injury claim and requests a hearing on the case, the North Carolina Industrial Commission will first order the parties to a mediation conference. The parties can either agree to have the mediation or disagree in which case the NICC will make the decision whether a mediation is advisable or a waste of everyone’s time.

North Carolina worker’s compensation lawyer Joe Miller will review with you the pros and cons of mediation. Many cases do settle at the mediation. Mediations can be worthwhile, even if the case doesn’t settle, because they can help narrow the issues and help get advance knowledge of what the insurance carrier for the employer thinks.

At a mediation, typically the lawyer, for the insurance carrier and employer appears alone, and the insurance adjuster is on standby on the phone. Although they are technically supposed to appear, many times, it is more expedient to waive their appearance so the mediation can take place at a time more convenient to the injured worker and his or her attorney.

The worker appears at the mediation with his/her attorney, and there is a mediator who tries to resolve the disputes. The mediator is a neutral party—typically an attorney knowledgeable in workers compensation law, selected by the parties from an approved list of qualified mediators. He or she is usually an attorney who has received training on how to mediate disputes. The mediator does not make any decisions or rulings, other than to declare an impasse if the parties cannot reach an agreement.

The mediation usually begins in a conference room at an agreed-upon location, with the mediator explaining the process. Each side then states its positions. This is usually a short statement of the facts relevant to the dispute.

Then, the two sides typically split up and go into two different rooms. The mediator go back and forth between each room, speaks to both sides to identify the issues, identity the disputes, and try to reach a solution. The mediator then gets input from one side and then walks to the other room to hear the input from the other side. Before the mediator leaves the room to head to the other, he or she will usually be given a monetary figure. On the injured worker’s side, this is called a “demand.” On the insurance company’s side, this is called an “offer.”

In this way, many disputes are resolved. The back and forth continues until hopefully, the offer and demand figures move closer and closer, until either there is a settlement or until there is an impasse. If the case cannot be resolved, then the mediator notifies the NICC and the case is set up for a hearing.

Preparation for the Mediation

Injured workers should review their mediation case with their attorney well in advance of the mediation. Strategy and experience are crucial to a successful mediation and typically our office will schedule a “mediation preparation” call or session a week or two prior to the mediation. Well in advance of the mediation, the injured worker’s attorney will be reviewing all of the relevant medical records and will typically have issued a “demand letter” to the insurance adjuster or his or her attorney.

This is done because the employer’s and insurance company’s lawyer often needs to get authority to settle the claim. This refers to the amount of money that the insurance company is willing to authorize the attorney to offer to resolve the claim.

Accordingly, the more they know about the case beforehand, often the better. Unlike a hearing, where surprise can work in your favor because the parties cannot walk away from a hearing – in mediation, the element of surprise can be a disadvantage because the party that is surprised can just refuse to settle and demand a hearing.

On the other hand, one does not want to come to the mediation as a “beggar.” If the insurance company thinks the worker is desperate for a settlement, then they will “low ball” and not offer the true value of the claim. Accordingly, it is best to engage in at least some “poker playing” and not appear too eager to settle. An experienced North Carolina worker’s compensation attorney will therefore advise you to “keep your cards close to your chest” when engaged in a mediation setting.

Mediations are confidential. This means that statements by either side cannot be used at the hearing. There is a trade-off though. While the statements can’t be used, the words don’t evaporate. The lawyers will know what was said and use the facts in those statements to their practical advantage by engaging in discovery about anything that is learned in mediation that was not known previously.

Mediators often review the potential outcomes of a case and the odds of success for each outcome. A mediation resolution usually means some compromise. Preparation helps because an experienced lawyer will explain which compromises are minor in the long run and which compromises cost a lot of money. Both sides usually walk away from the mediation slightly unhappy. The keys to a successful compromise are to balance properly the odds of winning, the money at stake, and the needs of the injured worker.

Mediation is generally useful only when the injured worker knows the full extent of his/her injuries and their full medical prognosis. It doesn’t make sense to mediate if the worker hasn’t reached his/her full point of medical improvement. Clients who have reached full medical improvement may need to still treat to maintain their medical level. But if the patient doesn’t know if he/she can still get better, mediation is usually not advisable.

This is why usually, well before mediation, the injured workers’ attorney will write to the workers’ treating physicians to obtain their opinions on the likely course and cost of future care. These opinions will accordingly be used to help form the demand letter to the insurance company.

Injured workers should understand that the result of a full and final settlement at mediation is typically a lump sum payment. This means the worker will forfeit the right to continuing medical bill payments and continuing lost wage benefits for a one-time cash settlement. An experienced workers’ compensation lawyer will review:

  • The outstanding medical bills;
  • The length of time temporary total disability or temporary partial disability would continue to be paid to the worker;
  • The need for and cost of additional medical treatment for the work injuries for the remainder of the worker’s life;
  • Any permanent partial impairment ratings to any particular body part;
  • The ability of the worker to return to work – with or without restrictions—in his or her pre-injury job, or in alternate employment;
  • Whether the worker remains completely disabled to perform any work and if so, if that disability is likely to remain past 500 weeks.
  • Whether the worker is a current Medicare recipient or anticipates qualifying for Medicare in the next 30 months.

Because the ability to obtain temporary total disability typically ends at 500 weeks of benefits, many times the future medical benefits become very important and a can be key issue is figuring out the value of any potential workers comp settlement. Joe Miller Esq. works with your doctors to determine your medical diagnosis, your prognosis, the type and extent of the medical treatments needed, and the expenses for each treatment going forward. Sometimes these things can be estimated, sometimes it is much more difficult. The cost of medications and medical equipment such as prosthetics will also be part of the settlement equation.

Speak with an Experienced North Carolina Workers’ Compensation Attorney today

North Carolina worker’s compensation attorney Joe Miller has been helping injured workers in North Carolina and Virginia get justice. He has helped thousands of clients get the compensation they deserve. He understands the ins and outs of mediation. For help now, please call Joe Miller at (888) 694-1671 or fill out his online contact form

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