Posted on Wednesday, January 31st, 2018 at 11:02 am
As a general rule, a worker must be an employee in order to qualify for work injury benefits in either North Carolina or Virginia. Workers who are independent contractors are not eligible for either lost pay benefits or for medical bills through worker’s compensation. This means that any worker who wants to receive workers’ compensation must show he/she was employee when the accident occurred. It also means that the insurance company for the employer will want to show that an injured worker was not an employee but worked independently.
Employers are required to have workers’ compensation for all their employees and are required to know the difference between an employee and an independent contractor. Typically, an employer pays an employee payroll taxes and unemployment taxes for the employee – in addition to paying for worker’s compensation insurance and sometimes even healthcare benefits.
Our firm has handled many of these kinds of cases, and prevailed in all of them by proving that the employee was, in fact, an employee as opposed to an independent contractor. We see many employers attempting to get away with this “misclassification” of employees, particularly in industries such as construction, cable installation, or transportation, where it can be costly to maintain workers compensation insurance. Also, as mentioned previously, classifying employees as independent contractors frees the employer from the obligation to pay payroll taxes or health insurance if there are more than 50 such employees. The problem is, when one of these employees gets seriously injured, he or she has no way to pay for the hefty hospital bills.
We have often found that these employers often do have workers compensation insurance. They just refuse to extend that insurance to cover certain workers that they wrongly classify as independent contractors. Once we have proven those workers are, in fact, employees, then the insurance coverage steps in and covers the employee.
Neither the worker nor the employer gets to make the decision as to the employee’s work status. This is true, even if the employer forces a worker to sign a statement saying he/she is an independent contractor before doing any work. Even if the worker receives a federal 1099 form, that is not conclusive to show the worker is an independent contractor. The state workers ‘compensation commissions make the decision which means, for all practical matters, that the Deputy Commissioner makes the call.
The Virginia Workers Compensation Commission and the North Carolina Industrial Commission typically review a variety of factors to determine if you are an employee or independent contractor. Many of these factors are based on the guidelines set forth by the Internal Revenue Service. The key issue tends to be who controls the worker’s hours, labor, and manner of performance. If the employer has control, then the worker is usually an employee. If the worker has control, the worker is usually an independent contractor. Some of these factors are:
Some additional questions a judge will review to determine employee vs. independent contractor status are:
If an employer doesn’t have workers’ compensation for an injured worker and that worker is judged to be an employee, then the employer can be required to pay all the work injury benefits, including temporary total disability, medical bills, and vocational rehabilitation expenses out if its own pocket.
If the worker is found to be an independent contractor, then the employer has no obligation to the independent contractor. An injured independent contractor will then look to his/her own health care policy to pay any medical bills. The contractor will lose wages unless he/she also had some sort of professional disability insurance policy or his own workers comp policy.
If the employer was negligent and the negligence caused the worker’s injury, then the injured independent contractor may be able to sue the employer for his/her medical bills, lost wages, and also for any pain and suffering. If it is clear the employer failed to follow the local building codes, OSHA standards, or common sense work safety conditions – then the employer will be more likely to agree that the worker is an employee. Injured workers should consult with their work injury lawyer before agreeing to this because they make more money by bringing a personal injury lawsuit.
Employers who intentionally classify a worker as being an independent contractor, when they certainly know that the worker is an employee can be subject to fines and penalties – and for the payment of the worker’s employment taxes.
We have come across a few larger employers who have attempted to get away with this misclassification. Rather than upend their entire business model by being exposed in a formal Judicial proceeding, many have desperately agreed to settle the claim instead, which, of course, has worked to our client’s benefit.
Understand your rights. In many cases, the employer misclassified your work status. Attorney Joe Miller Esq. understands the difference between employee and independent contractor status. He’ll fight to get you approved for employee status if you were injured on the job. He’s helped thousands of injured workers get justice. To speak with an experienced workers’ compensation lawyer, please phone (888) 694-1671 or fill out the contact form.
Posted on Monday, January 29th, 2018 at 3:03 pm
If your physicians make clear that you are unable to perform you prior job because of permanent physical or emotional limitations, (i.e. you are placed on permanent Light Duty), if you are under an Award in Virginia or an Accepted Claim in North Carolina, AND your employer is not willing or is unable to accommodate your restrictions, the employer’s insurance company will often seek to get you some employment that you can do. There are basically two ways to get you to work with restrictions:
Initially, the employer will assign a vocational rehabilitation counselor to your case. Even though they may be nice, the vocational counselor is often not your friend. He or she is working for the employer and trying to get you any job so the insurance company doesn’t have to continue paying North Carolina or Virginia’s worker’s compensation benefits. More importantly, the vocational rehab counselor will schedule numerous meetings and job leads for you to attend and follow up on. If you fail to “jump through their hoops,” particularly in Virginia, then you will likely be cut off of your benefits for failure to comply with the vocational rehabilitation plan.
The first step is to review your rights with an experienced worker’s compensation who can inform you about:
When it becomes certain that the injured employee simply isn’t going to find a suitable job that meets the work restrictions, then retraining and education is the next likely step. Many employer insurance companies still prefer to pay for retraining rather than to pay for extended work loss wages. Sometimes, this is determined after the first meeting with the vocational rehab counselor.
Retraining usually means one or more of the following:
Retraining can also mean counseling for people with learning disabilities, blindness, deafness, or mental illness.
Many manual workers can be retrained. Retraining isn’t just limited to high school. Some college education and same trade school education may also be available. Of course, any costs must be borne by the employer.
The employer’s insurance company should pay for:
A vocational rehabilitation counselor will also be assigned to work with you. A good counselor will help your choose training that will help you find a job in your location. A good counselor will also monitor your work not just to see if you taking and passing the classes – but also to review how you are doing and if you need any additional assistance. A bad counselor—which unfortunately is the majority of them— will look to see if you’re missing meetings or performing poorly so he/she can say you’re not cooperating and get you cut off of benefits.
Workers who are fully disabled or who can’t be retrained because of age or other problems shouldn’t be forced to go through a re-education process. If there’s no point to retraining – meaning that completing your studies won’t lead to suitable work, then you should get your benefits on the basis of a total disability.
Your Virginia or North Carolina worker’s compensation attorney can explain when retraining isn’t worth the effort, i.e. would be futile, and how you should proceed. For example, the lawyer may work with a vocational expert who can certify that the retraining simply won’t lead to a real job – given your current work limitations and the known job market in your locale.
On the other hand, if retraining can help and the employer’s insurance company refuses to pay for it, an experienced work injury lawyer will file the proper paperwork and hearing request to force the employer to pay for your vocational rehabilitation.
North Carolina and Virginia lawyer Joe Miller Esq. has been fighting for injured workers for almost thirty years. He has helped thousands of employees get the lost wages they deserve and get their medical bills paid. He has also fought and prevailed against bad vocational rehabilitation counselors who recommend inappropriate jobs as a means to attempt to get the worker cut off. The goal is always to work towards what is hopefully a good settlement his clients’ work injury case and a chance at a new life and a decent job. For help now, please call (888) 694-1671 or complete my contact form.
Posted on Tuesday, January 16th, 2018 at 5:09 pm
North Carolina Workers’ Compensation Lawyers keep abreast of recent legal decisions. Understanding how cases of other workers are decided helps a good lawyer prepare your case. If there are similar issues, an understanding of the legal decision indicates which arguments and what kinds of evidence a Deputy Commissioner will consider and which arguments and evidence types will not be persuasive. Experienced work injury lawyers regularly review the latest decisions and research them when an issue in your type of case is not clear.
A couple of recent cases in North Carolina:
The claimant/employee was required to attend the three-day conference, could not bring family members, and was paid his regular salary for attending. The employer created networking and social events that employees were also required to attend. One such event was a laser tag event. The employee felt pain in his right knee while participating in the laser tag event. He sought treatment, after the conference was over, for the right knee. The treatment ultimately required that his right knee be replaced because he suffered a torn meniscus and severe cartilage loss. Mr. Holliday filed a Form 18 , but the employer denied the claim. A hearing was held, and the North Carolina Deputy Commissioner approved the employees claim, including the medical treatment and temporary total disability payments.
The employer appealed the Deputy Commissioner’s decision claiming that:
The employer appealed to the Full Commission, which upheld the Deputy Commissioner’s decision granting benefits. The employer then appealed to the North Carolina Court of Appeals.
The NC Appellate Court denied all three appeal issues based on the following reasoning:
It can thus be seen that under NC workers compensation law, there are sometimes circumstances where employees can be injured during so-called “company events” that will be deemed compensable by the Industrial Commission, assuming that the employer requires that the employee attend and that the event serves some business purpose. It is not necessary that the activity which injures the plaintiff fit the plaintiff’s job description, and in fact, it is helpful when it doesn’t.
The employee filed a Form 18 about four months after the accident, which the employer/defendants denied. The Deputy Commissioner and on Appeal, the Full Commission denied the employee’s claim because he failed to demonstrate that he suffered an injury by accident. The employee appealed from those decisions to the Court of Appeals of NC.
Unlike the Deputy Commissioner and Full Commission, the appellate court did find that the injury was caused by an accident and found there was insufficient evidence to say it was not so caused. They reversed the lower decisions and remanded for consideration of Mr. Barnette’s benefits. An accidental cause of injury is “inferred where the work routine is interrupted and the introduction of unusual conditions is likely to result in unexpected consequences.” The appellate court found that this inference carried extra weight when it is clear that employee had to do something physically unusual – which was the case here since the stairway was too narrow and they had to return back down the stairwell, unable to make the final turn to the kitchen, which was on the 3rd floor of the beach cottage.
The bottom line is that the appellate court did find that the employee did suffer a work-related injury and was entitled to worker’s compensation benefits. The key is that the worker was not just doing his or her usual routine and felt an injury. In North Carolina, there must be something out of the ordinary or unusual that is likely to result in unexpected consequences. Otherwise, there is no case.
Contrast this with Virginia, where the focus is more on risk of employment. In Virginia, you would not need the unusual occurrence of the narrow stairway to prove an accident. The risk of injury from carrying a very heavy refrigerator would likely be enough. So this is a good example of where North Carolina’s law as to proving a compensable injury by accident are slightly more strict than Virginia.
Attorney Joe Miller Esq. keeps current with the latest legal developments. He understands the arguments defense lawyers and what evidence workers’ compensation lawyers find persuasive. He has helped thousands of injured victims get justice.
Posted on Monday, April 10th, 2017 at 9:20 pm
Some work injures 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. (more…)
Posted on Wednesday, July 13th, 2016 at 2:00 pm
North Carolina has specific rules for doctor selection if you suffer a workplace injury or illness. Employees are usually directed to a doctor by the employer, unless they underwent emergency surgery in the hospital. In such cases, the surgeon will usually continue on as the treating physician.
Employees may be able to switch to a different doctor if the employer is not cooperative, or the treating doctor is not appropriately trying to help the worker get healthy; however, it should be realized that it is not an easy thing to switch a treating physician in North Carolina. Specific procedures must be followed, or the worker could be stuck with the bill, or even worse, receive treatment from a physician whose opinions will count for nothing before the Industrial Commission. This will be discussed in this article.
Workers may also be required by the employer to submit to an independent medical exam by a physician chosen by the insurance company. This will be discussed further below.
You are also entitled to have an independent medical examination with a doctor typically agreed upon by your attorney and the defense attorney. If the sides cannot agree, the Commission will choose a doctor for the Independent Examination. This will also be discussed below.
Joe Miller has helped thousands of North Carolina workers get strong recoveries. He fights aggressively to help the worker get the medical relief he or she needs to return to maximum health. This fight includes arguing that the worker should have more control over the doctors that treat him or her. Joe Miller Esq. has worked with workers, doctors, and insurance companies for over 25 years. He is ready to help guide you through the medical stage of your worker’s compensation case so you can maximize your chances for a healthy recovery or for a proper diagnosis of all your medical problems.
When an employee is hurt on an accident, he or she should, if possible, inform the employer or a supervisor of his/her injuries. The employer or supervisor often will then direct the worker to see the company doctor or another doctor of the employer or worker’s compensation insurance company’s choosing. If the employer does not have the time or ability to contact the employer/supervisor, the worker can get help from a local hospital or physician of the worker’s choosing – but must promptly request approval from the employer or the North Carolina Industrial Commission.
The employee must always make every effort to be careful to give an appropriate history of the work injury to the doctor and hospital. Many cases have hit snags because the employee didn’t tell the doctor and the hospital about how he or she was injured at work. If the medical records are missing that information, it could have a serious negative impact on your case.
Generally, if there was not initial surgical treatment, the work will be directed to a doctor by the worker’s compensation insurance company or employer. Workers cannot initially choose their own doctor or pick their own doctor in North Carolina and unless there are circumstances which justify it, the Commission will not pay attention to the opinions of any such physician chosen by the worker without Commission approval.
If we are involved in the initial stages of the case, and we have the opportunity to do so, we will protest if there is a referral by the insurance company to a doctor who is an infamous and proven advocate for the insurance companies. There are simply some doctors you must stay away from.
We make every effort to provide a list of alternate physicians and steer the worker away from the clutches of such doctors.
Employees should review with an experienced North Carolina work injury attorney their right to ask to see another doctor. Workers have rights to select other doctors but only if the he or she gets approval from the North Carolina Industrial Commission. This is crucial in North Carolina because generally the Commission is going to ignore the opinions of any unauthorized physicians.
Workers have the right to ask for a change in treating physician if it is clear the initial treating doctor is not curing the injury or illness, or otherwise refuses to treat the worker. As noted above, switching doctors is not necessarily an easy thing to do in North Carolina. If the employee elects to attempt to seek treatment elsewhere and has the means to pay for it, he or she should always first request, in writing, authorization from the employer and workers compensation insurance company for the requested treatment, and await a reasonable time for response. We recommend this be done through certified mail.
The reason for the written request is because if you fail to ask for authorization before treatment, then the law says that the Industrial Commission may “disregard or give less weight” to the opinions of such a health care provider that you simply went out and chose on your own. This is why it is critically important that you not just seek treatment on your own, but always request authorization first, in writing. If a dispute arises, you must be able to prove to the Commission that you made the request and it was denied or never responded to appropriately.
Your Right to an IME 2nd Opinion Exam. As a separate right, exercised more frequently, employees can also ask for a second opinion examination with an agreed-upon physician on all medical issues, which is to be paid for by the workers compensation insurance company. Note that this is not medical treatment, this is simply an independent, one-time examination.
Your Right to a Ratings Exam. In addition, as an additional right, if the worker is dissatisfied with a partial disability rating by the treating doctor, he or she may choose a doctor to perform a partial disability rating. This is again a one-time exam, also paid for by the worker’s compensation insurance company; however, the “employee’s choice” rating examination must only relate to the percentage rating. The Commission will generally not pay attention to any opinions the ratings doctor may have, other than in relation to the rating itself.
Requesting a new doctor may prove to be important for several core reasons.
Very specific procedures have been developed in the last couple of years in an attempt to “streamline” and speed up the hearing of medical treatment disputes before the Industrial Commission. It is crucial that you work with an experienced North Carolina workers’ compensation attorney such as Joe Miller Esq. who will help you explain to the Commission why a change of doctors is required and how to request approval for a change.
The employer and insurance company can, at any time, require that the worker submit to an independent medical exam with a doctor of their choosing. Generally, the employer seeks an independent medical exam, IME, if the employer or insurance company thinks the employee is ready to return to work or if the insurance company does not want to pay for an expensive surgery or other procedure recommended by your treating physician.
Your workers’ compensation lawyer should explain that the IME is not an objective opinion. It is usually an effort by the employer to get the worker to return to work so benefits can be terminated, or to wiggle out of paying for additional medical expenses.
That being said, employees must attend an IME, or run the danger of losing all benefits. We have very specific recommendations that we provide to all of our clients as to how to behave in a defense Independent Examination.
Nurse Case Managers. In North Carolina, employers can also require that employees work with nurse case managers. Nurse case managers are supposed to help the employee get proper medical guidance. Generally, though, the nurse case manager works for the employer and insurance company and not the employee. Workers should know their rights if they are assigned a nurse case manager. Our experience in North Carolina is that some can be actual patient advocates, and look out for the worker, while others are simply in cahoots with the insurance carrier and have no interest in helping the worker.
Chiropractic treatment. Employees are allowed up to 20 chiropractic visits if the employer grants permission to work with a chiropractor. Additional visits may be authorized if the employer agrees.
To get the best medical and wage loss results, it is important that you get treatment from the best doctors. For strong counsel and for a lawyer who understands the medical requirements in North Carolina work injury cases, contact attorney Joe Miller at 888-694-1671 and ask for Joe Miller, or complete his online contact form for an appointment.
Posted on Monday, February 22nd, 2016 at 5:59 pm
Our latest video update helps explain what a permanency rating means in Virginia and North Carolina Workers’ Compensation cases:
Posted on Friday, December 11th, 2015 at 3:17 pm
Janitors and custodians perform a variety of tasks in retail, office, medical, public service and other settings that can cause an injury or an occupation illness. These are just some of the many types of accidents or illnesses my law firm handles for injured janitors and custodians:
Joe Miller Helps all types of injured workers including janitors, custodians and other maintenance personnel. He knows what type of accidents janitors suffer and what type of medical and wage loss relief they will need. He has the skills to aggressively handle your claim. Please call Virginia attorney Joe Miller at 888-694-1671 and ask for me, Joe Miller, Esq. or complete my online contact form.
Posted on Wednesday, November 11th, 2015 at 2:00 pm
In addition to knowing the questions that are likely to be asked, it is important to know how to answer questions at a North Carolina worker’s compensation deposition of you, the Plaintiff. Here are a few things to consider when being questioned at a deposition. (more…)
Posted on Monday, November 2nd, 2015 at 2:00 pm
These are cases where a worker cannot return to work in any capacity because of the work-related disability. There are many questions workers who have a total and permanent disability should ask their North Carolina injured worker lawyer. Here are some of them. (more…)
Posted on Wednesday, October 28th, 2015 at 2:00 pm
The majority of workers compensation settlements fit into this category. These involve injuries which may be quite severe and further involve some type of permanent restrictions on the worker’s ability to return to suitable employment. Because of the worker’s young age, work skills, education, and ability to retrain, the worker will be told to return to work with restrictions rather than being told to retire. (more…)