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.

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

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

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

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

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

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

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

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

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

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

Virginia Workers Compensation: Truck or Car Accidents that Occur Due to You Passing Out or Some other Medical Condition

Posted on Monday, June 5th, 2017 at 3:27 pm    

            It seems to be common sense that if you are on the job and injured in a car or truck wreck that happens because you passed out, blacked out, had a heart attack, brain aneurysm, seizure, or some other unknown condition, it would not be the employer’s fault and they would not be responsible for your injuries at all.

This article is here to tell you that this assumption would be wrong. In Virginia, if your job requires you to drive a car or a truck, and for some medical reason, you pass out, black out or otherwise lose control of the vehicle and your loss of consciousness causes the wreck, this is something that the employer is responsible for and you would be entitled to benefits under Virginia Workers Compensation. The reason is that if you had passed out or blacked out at home, it is quite likely that the result may have been simply a bump on the head, or a trip to the emergency room; however, because your job required you to drive down the road at high speeds in a multi-ton vehicle, and exposes you to much more serious injury, this puts you at an increased risk of much more severe injury if you do, in fact pass out, black out, etc.

Accordingly, if an accident happens while you are driving a truck or car for your employer, and you pass out, suffer a seizure, or have a heart attack or any other medical condition which causes you to lose consciousness and as a result lose control of the vehicle, and you are in an accident, you have a good case.

The one thing to watch out for: Your doctor must support the notion that whatever happened to you or caused you to pass out, this condition caused you to temporarily lose consciousness and therefore lose control of the vehicle and get in the wreck. It cannot be a “possibly caused.” It has to be a “probably caused.” If you do not have the doctor’s statement, you will not have a good case.

You should be aware that at first glance, this is not something that makes sense to most people, and that the workers compensation adjuster may not be familiar with the law on this subject. He or she may try to tell you that you do not have a claim. We want you to know that this statement is wrong, and if you are told this, it is either being done out of deception or ignorance.

If you have suffered a work injury because you blacked out while driving a car or a truck, please do not hesitate to call us toll-free at 888-694-1671 or fill out the online form. Attorney Joe Miller at the Work Injury Center has been representing injured workers in Virginia for over 27 years, and stands ready to assist you with your workers compensation claim. Please give us a call!

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…)

Virginia Workers’ Compensation – FAQs

Posted on Friday, December 2nd, 2016 at 2:00 pm    

Who is covered under the Virginia Workers’ Compensation Act?

The Virginia worker’s compensation law covers every person who works in the service of another for hire or as an apprentice. This includes aliens and minors. It includes people whether the contract or apprenticeship is in writing or employed and even whether the contact is legal or not. The only exception is for workers who are not employed in the usual course of the trade, business, occupation or profession of the employer. The employer must generally have more than 3 employees regularly employed to run the business. If not, then the employer is not covered under the Act or required to have workers compensation insurance.

What kinds of injuries are covered under the law?

Injuries that can be identified by a single occurrence. Workplace injuries are generally covered in Virginia if:

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

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

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

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

Carpal tunnel syndrome is compensable in Virginia while other types of repetitive stress injuries are not. Hearing loss is also compensable.

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

What workplace injuries are not compensable under Virginia workers’ compensation law?

Except for carpal tunnel syndrome, repetitive stress injuries are not compesable. Aside from diseases that do not qualify as occupational diseases; back pain, neck pain, and spinal pain are not compensable unless they relate to a specific identifiable accident. In other words, if you’ve been working in a difficult job for many years and you develop a bad back due to that, you do not have a case unless you can pin the pain and problems to one, specific injury and that injury meets the other criteria for a workers comp injury.

Are emotional claims compensable?

As with other workplace injuries, if a worker suffers psychiatric or emotional problems due to a specific physical injury, employees may be treated by a psychiatrist or psychologist – and have the bills paid for. Many workers do suffer emotionally if they, for example, suffer an amputation. They are understandably distraught over the loss of the limb, the stigma that they perceive comes with being an amputee, and of course they ponder all the things they may never be able to do again. Depression and anxiety may result, and as long as there is a proper referral by the treating physician, the treatment for such issues is completely compensable. In fact, in some cases, the proper psychiatric treatment can mean the difference between a person’s return to the workforce or complete disability. In addition, sometimes, a good psychiatrist can provide protection against overzealous nurse case managers who try to force injured workers back to work before they are ready.

In some instances, even if there is not a traceable, physical accident, psychiatric damages might be compensable if they were a direct natural consequence of some work experience – such as seeing a shooting or other violent incident. What is key in those cases is the traumatic event must be outside the normal experience one would expect for such an occupation.

When must Virginia Workers’ Compensation claims be brought.

  • For accidents, generally two years from the date of the accident.
  • For occupational diseases, generally two years from the time the worker learns of the illness or five years from the date of the last workplace exposure – whichever date is earlier.

Some exceptions do apply. It is best to consult with an experienced Virginia workers’ compensation lawyer as soon as possible.

Does the employer have any defenses?

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

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

  • Willful misconduct such as intentionally ignoring safety law if it’s clear that:
    • The safety rule was proper
    • The employee knew of the rule
    • The rule was meant to protect the employee
    • The employee intentionally ignored the rule
  • Injuries due to the employee’s use of drugs or alcohol if the employer can show the intoxication or inebriation cause the worker’s injuries.

Employers do have to give formal notice of any defense in compliance with the law. Attorney Joe Miller Esq. can explain if employers failed to give a proper deadline.

Can employees be punished for fraud or knowingly making false statements or failing to make necessary disclosures

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

Can an employer fire me if a file a workers’ compensation claim?

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

What if I’m an independent contractor?

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

We see this issue litigated many times as many employers think that they can reduce their business expenses by claiming that all of their employees are in fact independent contractors. They may even attempt to have the employee sign some kind of contract that says the employee agrees that he or she is an independent contractor. These “contracts” are not effective. An employer cannot “contract away” it’s obligations under the Virginia Workers’ Compensation Act. The Virginia Workers Compensation Commission is going to look at the “facts on the ground.” Some of the factors that can persuade a Commissioner that an employee is really an employee are:

  • Does the employer have the right to control when, where, and how the worker does his/her job?
  • How is the worker paid, how are expenses paid, who supplies the work tools?
  • The general work relationship. Is there a written contract? Did the worker get benefits such as insurance, vacation, or pensions?
  • Can the employee be fired for misconduct?
  • Does the employee have to follow a set of rules set forth by the employer
  • Does the employee have to report to work at a specific time each day?

 

Speak with an Experienced Virginia Work Injury Lawyer Today

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

Virginia Workers’ Compensation for Occupational Diseases

Posted on Wednesday, November 30th, 2016 at 2:00 pm    

Most workers need to show they suffered a specific workplace injury that occurred at a specific point in time in order to recover workers’ compensation in Virginia.

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

Joe Miller Esq., understands the Virginia occupational illness laws. He fights for workers who suffer these diseases which are often deadly, life-threating, or disabling. He works with doctors to determine the disease, the cause of the disease, and to show the disease was related to daily work performance. For Virginia worker’s compensation, the last day the employee was exposed is generally considered the formal date of workplace injury; however the time period for the running of the two-year deadline to file the claim doesn’t occur until the worker has been told by a health care provider that he has a work-related disease.

The Virginia Statutory Definition of Occupational Disease

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

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

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

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

Hearing loss and the condition of carpal tunnel syndrome are not occupational diseases. Virginia considers them to be ordinary diseases; however there are circumstances under which one can recover in such cases.

Ordinary Diseases

Generally, a worker who gets an ordinary disease does not qualify for workers’ compensation. A worker who gets an occupational disease does qualify – so it’s crucial to be able to prove that disease is occupational and not ordinary. Some ordinary diseases—such as various infections— may qualify as occupational diseases if the following conditions are clearly met if the disease can be shown to have arisen due to employment and not due to outside causes and if one of the following exists:

  1. It follows as an incident of occupational disease as defined in this title; or
  2. It is an infectious or contagious disease contracted in the course of one’s employment in a hospital or sanitarium or laboratory or nursing home, or while otherwise engaged in the direct delivery of health care, or in the course of employment as emergency rescue personnel and those volunteer emergency rescue personnel. Essentially, this means people who normally provide some type of healthcare service such as nurses and ER staff and who acquire a disease may qualify for workers’ compensation.
  3. It is characteristic of the employment and was caused by conditions peculiar to such employment.

Common Types of Occupational Diseases

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

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

Mesothelioma, a deadly form of cancer, is another common occupational work disease. Many workers got/get the disease due to exposure to asbestos. Many coal miners suffer from black lung disease.

Repetitive Motion Injuries and Emotional Stress Injuries

There are some occupational illnesses that are not due to exposure – rather they are due to repetitive stress. Workers who do a lot of computer work or repeat work such as assembly or machinist work can develop carpel tunnel syndrome and other repetitive stress injuries. Repetitive stress injuries are also called repeated motion injuries. The most common type of repetitive stress injury affects the wrists. If detected in time; rest, rehab, and some medications can help. If not detected in time, repetitive stress injuries can become a lifelong disability. Virginia workers’ compensation law does not generally cover repetitive stress injuries – with the one exception of carpal tunnel syndrome.

Conditions that are related to emotional stress such as depression or indigestion generally do not qualify for workers’ compensation coverage in Virginia. If the stress is caused by a one-time event such as suffering or witnessing a workplace accident or death, then the worker has a better chance of recovering workers’ compensation benefits. That being said, it must be the kind of job where one would not be expected to be exposed to such an event. For instance, a police officer who witnesses a shooting would probably not be able to recover for Post Traumatic Stress Disorder; however, a nurse or other type of worker might. An experienced Virginia workers’ compensation attorney such as Joe Miller can explain when emotional stress related disorders, such as post-traumatic stress disorder (PTSD), are covered.

Talk to a Virginia Occupational Disease Attorney Now

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

Where Workplace Accidents Happen Most Often

Posted on Monday, October 31st, 2016 at 2:00 pm    

Accidents at work happen for many reasons. Employers should be aware of the various causes and take steps to try to avoid these types of workplace accidents or, at least, take preventive steps to try to reduce them.  A common misconception is that the employer has to be negligent or “at fault” for the accident at work. This is false. Workers in North Carolina and Virginia do not have to prove that the  employer was responsible for a workplace accident in order to have a valid workers compensation case. The worker just needs to prove a workplace accident did occur at some specific moment in time, and the injuries were caused by the workplace accident. Still, the best way employers can help their workers is to take safety precautions to prevent the accident from occurring.

Attorney Joe Miller is an experienced North Carolina and Virginia Workers’ Compensation attorney. When a common or uncommon workplace injury occurs, he has the skills and tenacity to file, negotiate, and litigate your work injury claim. He also understands that often times the type of accident is an indicator of the types of injuries that occur and the typical time frame for how long the worker will likely be out of work.

The Most Common Types of Workplace Accidents

·       Workplace violence. Many injuries are caused when workers get into arguments with other workers or when a worker has mental health issues and that instability leads him/her to lash out at other workers. In Virginia, if the employee was an unwitting victim of horseplay or violence, he or she still has a valid claim. On the other hand, if the worker was a willing participant, this may invalidate the claim, especially if the argument had nothing to do with the work at hand.

·       Repetitive Stress or noise exposure. Many workers suffer injures due to repetitive motions such as working with computers or performing the same tasks over and over and over again in an assembly line or using hand tools. These are known as occupational disease injuries. Employees who suffer this type of stress often get injuries such as carpal tunnel syndrome, or hearing loss.  Better equipment and better training, and rule enforcement can help reduce these types of injuries. Employees who suffer repetitive motion injuries, hearing loss, or some other injury they believe was caused by conditions at work need to speak to an experienced Workers’ Compensation lawyer because there are very specific things that need to be proven in order to qualify for a valid occupational disease case.

·       Getting clothes or body parts entangled in machinery. Clothing, hair, fingers, shoelaces, and other items can get caught in the machinery which can then cause severe injuries including loss of a body part. Employers should make sure workers are educated about the risks of working with some types of equipment and take necessary preventative steps. Examples of safety measures include better equipment and educating the employee about proper work techniques. We often see some of the most severe injuries where employers cut corners by failing to properly maintain equipment, failing to utilize machine safety guards, deliberately disengaging safety devices, or failing to have any written, enforced rules or procedures for hazardous work duties.

·       Car and truck accidents. Many workers such as construction workers or delivery drivers use vehicles for their job.  Vehicle accidents can be deadly or cause serious injuries.  Workers should be advised on the local driving rules and on how to properly operate the vehicles – especially trucks. Employers should have clearly defined and enforced safety rules which require the use of seatbelts at all times.

·       Lack of industry standard simple safety measures. Many workers get injured because they are concentrating so hard on immediate physical tasks that they fail to see objects that can hurt them. For example, a worker may not see a door, table, while carrying a heavy load, or not see a person while driving a forklift around a corner.  Also Employers should create a work environment that minimizes these types of accidents. For instance, the installation of wide-view mirrors at strategic points in a plant or factory can increase visibility of oncoming vehicles and people. Creating ergonomic environments where employees with restricted vision will have a path clear of obstacles is also helpful.

·       Falling Objects. Employers should make sure that shelves aren’t overstocked and that items hanging from the roof or other high places are secure. Workers should be advised to wear helmets in certain work areas. Injuries can include brain damage, head trauma, and pain in the area where the object strikes the worker.

·       Slips and Falls. This type of workplace accident is very common. Workers can slip or trip when there are loose objects lying around, the floors are slippery, there are tears in carpets, or for a variety of other reasons. Injuries can include broken bones, soft tissue injuries, bruises, concussions, and lacerations. In severe cases, a worker may suffer death or permanent injury.

·       Falls from High Places. Workers who use ladders, work on roofs, or work on stairwells can slip and fall. While protective gear can help, anyone who falls from a high height is likely to suffer a long-term injury. Proper spotting and use of safety harnesses as required by OSHA is essential. We have seen too many workers get injured in this fashion when again, employers are willing to cut corners and not create or enforce strict rules in relation to working at heights.

·       Overexertion. Many workplace accidents happen simply because the worker is being pushed too hard, and we often see this occur in the heat. When workers are tired, they are much more likely to trip, fall, fail to see other objects, or fail to use proper techniques, not to mention suffer heat stroke or a heart attack. Fatigue is a major cause of workplace accidents and is one of the most preventable – making sure the employee gets enough rest, and is provided with appropriate opportunities for cool-down and hydration.

Additional causes of workplace accidents

The US Department of Labor, through the Occupational Safety and Health Administration (OSHA), keeps regular records of why workplace accidents occur.  In addition to the causes listed above, some other causes of workplace accidents, according to OSHA, include:

·       Poor communication – especially about safety issues

·       Failure to provide respiratory protection

·       Faulty equipment including up-to-code scaffolding equipment, bad ladders, and machines without safety guards

·       Forklift malfunctions and misuse

·       Electrical failures such as improper wiring

The list or reasons workplace accidents occur is virtually never-ending.  Still, trying to categorize them makes it easier to work to prevent them. Some additional causes, that are human related, include:

·       Taking shortcuts.  Workers should never place speed over safety. Failing to take proper precautions can cause injury and death. Unfortunately, employers often encourage this behavior in the name of higher profits.

·       Failure to clean up. Workplace supervisors should inspect the workplace before work starts each day to make sure the place is free of debris, that equipment functions properly, and that all loose elements such as overheard storage are secure.

·       Poor training and preparation. Workers should be trained on how to use each piece of machinery or equipment. They should also be trained on everyday workplace safety issues to avoid injuries and to respond to them quickly when they do happen. There should also be written enforceable rules, and daily safety meetings prior to work beginning to address specific concerns of employee and management.

·       Failure to address mental and emotional issues. Many workers have personal concerns that should be addressed. Workers who are thinking about their family members or other aspects of their personal lives are not focusing on safety. Employers should make some effort to help workers have the time to address personal issues so the worker can be safe and more productive.

Speak with a trusted Workers’ Compensation Today

If you were hurt in any type of workplace accident, do not delay. Even though the employee does not have to prove the employer was negligent, it does help a great deal to be able to show how the accident occurred. You may be leaving out a critical detail that could mean the difference between your employer covering or denying your case.  For our free, quick, elite, 7-step case evaluation,  phone Joe Miller Esq.  at (888) 694-1671 or fill out his contact form. Attorney Miller represents injured workers in both Virginia and in North Carolina.

How to Figure the Cost of Living Adjustment (COLA) in Virginia Workers’ Compensation Cases

Posted on Wednesday, July 6th, 2016 at 2:00 pm    

Workers need to ask for the COLA each and every year by the due date. It is best to work with an experienced and skilled Virginia Workers’ Compensation Lawyer who will record the deadlines and notify clients of when they should request their COLA. The most important thing to remember is that you will need to take the COLA Request Form down to your local Social Security Office and have a Social Security Representative sign the form to prove that you are not receiving social security disability. Of course, you must sign it as well. Workers receiving SSDI are generally not eligible to receive Workers Comp COLA.

The Commission does make this easier with a COLA Calculator.

Key factors in figuring the amount of the cost of living increase are:

  • Accident Date
  • Begin Date
  • End Date
  • Compensation Rate
  • COLA Paid
  • Compounded Comp Rate
  • Maximum In Effect
  • Total Due
  • Difference

Keep up with inflation. Claim your COLA on time every year.

Attorney Joe Miller understands that an award of benefits is not the end of the process. If you are entitled to benefits year after year, then you are entitled to a cost of living adjustment to keep up with inflation. The COLA adjustment means money in your wallet but only if you ask for it. Attorney Joe Miller explains to applicants how the COLA process works and when they must file to get the COLA benefit. Ask Joe Miller Esq. for advice today by calling 888-694-1671 or filling out his online contact form.

Calculating Interest Payments in Virginia Work Injury Cases

Posted on Monday, July 4th, 2016 at 2:00 pm    

If payment of benefits is delayed due to Appeal, the injured worker may be eligible for interest.

An experienced Virginia Workers’ Compensation attorney like Joe Miller Esq. understands how to arrive at the key figure. The Virginia Workers Comp Commission has also made this easier with an Interest Calculator in the event your case is appealed. The key items that need to be reviewed to calculate the interest due on compensation benefits are:

  • The Accident Date
  • The Date of the Opinion
  • Benefit Start Date
  • Benefit End Date
  • Compensation Rate
  • Date Paid
  • Weeks Due
  • Daily Interest Rate
  • Amount Due at Date of Opinion
  • Days Delayed
  • Interest Due
  • Total Compensation

Hurt at work? Get all the money you deserve.

.Sometimes employers delay making payment for invalid reasons, for the hope that you will give up, or for other reasons. Whatever the reason, if you are entitled to compensation – the employer should not be rewarded for any delay. Attorney Joe Miller has the experience you need to get interest for delay and to properly calculate your compensation benefits. Call Joe Miller to review your claim at 888-694-1671 or complete his online contact form.

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