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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How Does Vocational Rehabilitation in Workers’ Compensation Really Work?

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

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

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

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

Some key considerations when meeting the vocational counselor

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

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

Vocational retraining for when there just aren’t suitable jobs

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

Retraining usually means one or more of the following:

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

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

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

The employer’s insurance company should pay for:

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

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

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

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

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

Understand if vocational rehabilitation is a viable option for you

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

Recent North Carolina Workers’ Compensation Legal Cases

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:

  1. Injury In the Course of/Arising out of Employment. Holliday v. Tropical Nut & Fruit Co, 775 S.E. 2d 885 (N.C. App. 2015) In this case, the employee was a sales rep for an employer. The Employer decided to hold a sales and marketing conference where a variety of business issues (such as new products and new strategies) were discussed. Employees received awards for good performance for the past year.

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:

  1. The injury did not happen during work, during employment.
  2. There was no precise time or moment that the injury occurred so the injury does not meet the workers’ compensation requirement that a specific accident caused the injury.
  3. No evidence of work restrictions was presented after the knee replacement took place.

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:

  1. Participation in the laser tag event was supposedly technically not required by the employer, but the employer paid for the event, the employer controlled the event including taking attendance, and the event served a business purpose – allowing the employees a chance to network with each other and with their managers from other regional offices in a friendly way. Furthermore, the employee was paid his regular salary for the events and was not permitted to bring his family with him. It was a “team-building” exercise. Each employee was assigned to a specific group by the employer—either the laser tag or bowling.
  2. The appellate court noted that laser tag was not part of the employee’s normal job activities. Accordingly, since he was hurt in an unusual way, outside of his normal work duties, this satisfied the requirement that he had suffered an “injury by accident” since it had occurred due to an interruption of his normal work activities, which usually involved a desk job. The employee was not required to provide the exact motion or time that the tear to the meniscus occurred. It is sufficient that the employee confirmed he injured his knee about 15 minutes into the laser tag game.
  3. The appellate court found that the employee’s surgeon r testified in deposition as to his recovery timeline for workers in a similar situation (having just undergone knee replacement therapy). That testimony was enough to convince a Commissioner and the appellate court that the employee could not work at any capacity for at least several months after the knee replacement surgery.

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.  

  1. Injury by Accident-Unusual Circumstances Required. Barnette v. Lowe’s Ctrs, Inc. 785 S.E. 2d 161 (N.C. App., 2016) In this case, the employee and another worker were sent to a beach home to install a refrigerator on the third floor. The employee testified at the workers’ compensation hearing that the stairs were narrower than those in other homes making the delivery much more difficult. Once the workers got about two thirds up the stairwell, they discovered that the the refrigerator wouldn’t fit and that it had to be taken back down. While taking the refrigerator down, the employee lost feeling in his right forearm and hand. The feeling did return about a half-hour later.

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.

Speak with a respected North Carolina and Virginia workers’ compensation attorney now

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.

For a caring representative, please phone Joe Miller Esq. at (888) 694-1671. You can also contact him through his contact form or by email.


What Happens at a Workers’ Compensation Deposition?

Posted on Wednesday, January 10th, 2018 at 11:41 am    

In North Carolina and Virginia, may times the insurance company for the employer will want to take your deposition. A deposition is on oral question and answer session which is recorded so that it can be transcribed and the discussion can be preserved. It is done under oath, just like you were in the courtroom. In most work injury depositions, the insurance company attorney will question the worker and your worker’s compensation attorney will prepare you for the deposition. Preparation means explaining what questions the employer’s lawyer will likely ask so that you aren’t surprised when the real deposition takes place and also going over some general tips to help the deposition go smoother.  By reviewing the deposition with you in advance, and using the attorney’s experience to prepare you for the deposition, the lawyer will also explain many practical suggestions so you can express your answers in a way that can best help your cause.

In most depositions, that lawyer for the insurance company is polite and the questions are fairly straightforward. Occasionally, that is not the case. Either way, you should treat the deposition as a business meeting. No matter how nice the defense lawyer is, he or she is not your friend. Defense lawyers will try and derail your case, if given the opportunity to do so.

Where and How Does the Deposition Take Place?

The deposition normally takes place either at your lawyer’s office or the law office for the attorney for the insurance company/employer. The questions and answers are usually in a lawyer’s conference room and just you, your lawyer, the insurance company lawyer, and the stenographer or court reporter are present. Occasionally, particularly if your lawyer will also be deposing your supervisory personnel, a company representative may be present. Sometimes, albeit rarely, the insurance adjuster is present, but they will not be able to ask you any questions under oath. Only the defense lawyer and your own attorney can do that.  

If you don’t currently have a lawyer, we strongly suggest retaining an experienced worker’s compensation lawyer before heading into a deposition. Please do not do that on your own. You may very well risk causing tremendous damage to your case.

Remember, it does not cost you any money up front to hire a workers compensation lawyer. You will not have to stroke a check. Attorney’s fees in workers comp cases are controlled by the Industrial Commission in North Carolina or the Virginia Workers Compensation Commission.

In addition to thorough preparation of you prior to the depo, your lawyer may object to some of the questions that are being asked.  You lawyer can also ask you questions that can help clarify your answers once defense counsel has finished his or her line of questioning.

When you answer the questions, you will be under oath. Testifying under oath means that you swear to tell the truth and to answer the questions to the best of your ability. The court stenographer is the person who will swear you in.

What is the purpose of the Deposition?

The deposition of a Claimant or Plaintiff in a Workers Compensation Case Generally has Four Purposes:

  1. To obtain information from you directly about the facts of the accident, your treatment and injuries, witnesses you may have, and your course of treatment.
  2. To “lock you in” to your testimony in relation to these things under oath, so that you cannot say something different at hearing. If you do, you will be confronted with your deposition statement by defense counsel on cross examination.
  3. To determine what kind of witness you are. Are you someone the Deputy Commissioner is likely to find credible?
  4. As a tool to help the defense attorney evaluate the claim and make recommendations to the insurance adjuster about whether to make offers of settlement prior to hearing, whether to “cave” and agree to the Award, or whether to gather the troops and push on to hearing.

The types of questions that will be asked at the deposition

The insurance company lawyer will generally ask you the following:

  • Questions about your background. Sample questions include:
    • When were you born?
    • Where do you live?
    • Tell me about your education – what schools did you attend?
    • What is your work history – which jobs have you had, where, and for how long? What kind of work did you do in those jobs?
    • What were the physical requirements of these jobs?
    • Do you have any criminal history record?
    • Have you filed any prior worker’s compensation claims?

  • Questions about prior injuries? Here, the insurance carrier lawyer will try to see if there’s a way to argue that your current injuries were related to a prior accident – either at work or away from work. If you answer yes to these questions, the attorney for the employer will ask follow-up questions about when the injuries occurred, what doctors you say, what treatment you had, whether you had to stop working, and whether the injuries resolved.

  • Questions about the workplace accident? In North Carolina and Virginia, you do not have to show your employer is at fault for the accident. Fault is not an issue. Still, the insurance carrier lawyer will ask questions about the accident to try to understand how the accident caused your injuries. If your injuries or a workplace illness occurred over time vs at a specific point in time, you may not have a case.

And even though the employer does not have to be at fault, sometimes there needs to be a defect if you were injured in a way that is a common way to get hurt. For instance, in Virginia, if you simply missed a step while walking down a set of stairs, that is not a risk of employment and you have no case, unless your shoes were slippery from work materials, you were rushed with work items in your hands, or the step on which you slipped was somehow defective. The bottom line is that in a contested case, it is very important to go over these facts with your attorney so that you do not inadvertently say something that could ruin your claim.  

In North Carolina, there are somewhat stricter provisions that generally require some type of slip, trip or fall—something unusual, that must occur in order for you to have suffered an “accident.” This will be explored by defense counsel, particularly if you have a contested claim.

  • Questions about your medical treatment. Here, the lawyer for the employer will go through each and every hospital you went to, each doctor you saw, each medication you took, and each medical device you needed to use. You generally do not have to remember exact dates, although it is important to have a decent idea of the sequence of treatment.

What is often most important here is what you told your doctors or other health care providers about your injuries. If there are inconsistencies in the statements you made to doctors and hospitals about how you were injured, or which body parts you injured, then these inconsistencies, if not properly explained, can ruin your case. A good workers comp attorney will point out any of these inconsistencies and go over them with you in preparation for the deposition so that they do not derail your claim.

The defense lawyer will begin questioning with the first treatment and then go through your treatment, usually in chronological order or by physician, until the current time. He/she will also go over your long-term prognosis and how you are feeling now, as well as your plans going forward.

  • Questions about your current work ability. The lawyer will ask many questions about your current ability to work, your limitations, and your difficult working. Sample questions might include:
    • Have you tried to return to work?
    • What is stopping you from working?
    • Do you think you could work if the employer changed your work conditions?
    • For your particular job, the lawyer will likely ask questions about your functional limitations such as your ability to lift or push above certain weight limits, your ability to sit for long stretches of time, and other questions based on current work injuries.

Some common deposition ground-rules

Some of the guidelines your worker’s compensation lawyer will go over with you before the deposition are:

  • Wait until the full question is asked before your answer. You need to wait for several reasons:
    • Your lawyer may object to the question. You don’t want to answer a question which may hurt your case.
    • By waiting you make sure you understand the question and that you don’t answer to quickly. Depositions aren’t a race. You should think about each question before you answer it.
    • The court reporter needs to type the answer.
  • Don’t volunteer. You should only answer the question that was asked and your answer should be as short as possible. The attorney for the insurance company is not your friend. He/she is looking for information to use against you. The less you say at the deposition the better. The insurance company lawyer can always ask another question if he/she wants to find out more. Your lawyer can ask questions too to clarify any apparent confusion. As someone who has been doing this for 27 years, and attended thousands of depositions, I can tell you this: the more you say, the longer the deposition will last.
  • Understand that you need to give an oral response. A nod of the head, a mumble, or pointing can be misconstrued. An oral yes, no, or verbal answer makes clear to everyone what you meant. Remember, your answers may be used at the hearing or in legal briefs so your answers need to reflect what you really meant. And do not say “uh-uh” or “uh-huh”. Yes or no makes it much clearer.
  • Don’t guess. Make sure you understand the question. Also make sure your answer is accurate. If you don’t know then it is perfectly Ok to say that you don’t know or you cannot recall, as long as that is not the answer to every question.  
  • Be alert to questions that might violate your attorney-client privilege with your lawyer or are repeated questions because the defense attorney wants a different answer. If your lawyer thinks a question violates this confidentiality requirement, your lawyer should object.
  • Keep calm. The insurance company lawyer is trying to see what kind of witness you will be at the hearing. The more you appear relaxed, confident, and credible, the better chance you have of settling your case. If you easily rattle, or appear angry, the insurance company may be more likely to consider requesting a court hearing.

After the hearing, your lawyer will get a copy of the deposition transcript. The lawyer will review the transcript with you to confirm that it is accurate – or that changes should be duly noted.

Make the call to an experienced Virginia or North Carolina workers’ compensation lawyer today

Preparation is the key to most work injury cases. The more you and prepared and the more your lawyer has all the necessary information, the better chance you have of winning your claim. A skilled worker’s compensation lawyer like Joe Miller has handled many depositions. He can firmly guide you through the deposition process. He’s helped thousands of injured workers. For help now, please phone lawyer Joe Miller at (888) 694-1671 or use his contact form to schedule an appointment.

Workers’ Compensation and Post Traumatic Stress Disorder (PTSD)

Posted on Wednesday, January 10th, 2018 at 11:37 am    

Post-traumatic stress disorder is a long-term mental health reaction to witnessing or experiencing one or more traumatic events. While many people recover from accidents or other forms of trauma as their injuries heal or with time – for some people the trauma can prevent them from working, from functioning and from enjoying life. For example, some people who have an extremely violent car accident may be fearful of ever driving or even being a passenger in a car again.

Workers’ compensation doesn’t just apply to physical injuries. Workers who can’t emotionally do their job are also entitled to North Carolina and Virginia workers’ compensation benefits. This includes PTSD cases.

Types of jobs where PTSD claims are likely

Any accident can cause someone to develop post-traumatic stress disorder. Still, PTSD is most common in work environments where there is a great amount of stress, physical contact, and violence. Some of the jobs where PTSD is common are firefighting, police work, and emergency medical care. Workers who see other persons die or deal with physical difficulties, such as nurses and medical care providers, also are prone to suffering PTSD. In many cases, a specific incident is what pushes the employee over the edge to the point he/she can’t work and can’t function.

People in the military often suffer PTSD. Your North Carolina and Virginia workers’ compensation lawyer can explain if you have a state or federal workers’ compensation claim if military combat causes PTSD.

Post-traumatic stress disorder systems

The psychological and emotional difficulties of PTSD vary from person to person. Some patients may recover in weeks or months. Others may need years to recover and some may never recover. In the worst cases, someone with post-traumatic stress disorder may tragically take their own life. Patients need to work with psychiatrists, psychologists, and other mental health professionals in or order to address their problems and to learn how to cope and manage them.

Typical PTSD symptoms include:

  • Depression
  • Anxiety
  • An inability to communicate
  • Flashbacks and nightmares about the traumatic incident
  • Irritability
  • Anger
  • Self-destructive behavior
  • Violence towards other or towards themselves
  • Difficulty with memory
  • Guilt about surviving the traumatic event when others did not survive
  • Being easily startled
  • Fear for one’s safety
  • Getting upset at anything that reminds you or “triggers” you in relation to a traumatic event
  • Avoiding places, conversations and other triggers that remind you of the stressful event
  • A feeling of hopelessness
  • Withdrawing from others
  • Withdrawing from relationships
  • Not participating in events you once enjoyed

Some people outwardly show their PTSD symptoms by being aggressive. Some may even engage in self-destructive behavior such as abusing alcohol or drugs or driving recklessly. Eating disorders are also common.

The consequences of post-traumatic stress disorder are not just limited to emotional effects. Many people with PTSD are at risk for some or all of the following physical detrimental effects:

  • Ulcers
  • High blood pressure
  • Heart attacks
  • Nausea and diarrhea
  • Tiredness
  • Vomiting
  • Headaches

Workers’ compensation benefits for people with PTSD

Workers who can verify through medical evidence that a specific workplace accident triggered their PTST can demand their work injury benefits in North Carolina and in Virginia. The allowable benefits include:

  • Payments of 2/3rds of the worker’s average weekly wages during the time he/she can’t work for up to 500 weeks.
  • Partial payments if the worker can return to work, but only at a less stressful job which pays less than what the employee was earning before he/she needed to stop working
  • Medical treatment to help restore or manage the employee’s mental health
  • Medical care for any physical problems related to the PTSD
  • The cost of all medications needed to treat the PTSD for the rest of the employee’s life

Employees may also be entitled to vocational rehabilitation expenses for the costs to learn new work skills so the worker can accept a less stressful job.

Some of the challenges of PTSD work injury cases

There are several difficulties in North Carolina and Virginia PTSD cases. Workers often aren’t aware of their problems immediately. It can take a long time before the employee becomes aware that PTSD is the cause of his/her inability to work. Early intervention helps many patients which is why it is important to file your workers’ compensation as soon as possible.

Insurance companies will try to blame factors not related to work for the employee’s post-traumatic stress disorder such as family stresses, money problems, and abuse by others.

Mental health issues are harder to document than physical injuries where X-Rays, CT scans, MRIs, and other more objective tests are used to show that the employee does have significant work-related injuries.

Employers may try to argue that the worker only qualifies for PTSD if he/she suffered the trauma instead of just witnessing the trauma. We have had PTSD cases where we have overcome such defense arguments.

Our North Carolina and Virginia workers’ compensation lawyers explain that witnessing a violent act at work should qualify for work injury benefits, depending on the occupation of the worker. For example, if a police officer witnesses another police officer being shot, the first police officer often will undergo PTSD because of concern for the fellow police officer and for his/her own safety. The right to claim workers’ compensation benefits varies from state to state. Some states require an unusual stimulus, some require a sudden stimulus, and some don’t allow for PTSD claims. North Carolina and Virginia currently do allow for PTSD claims if certain conditions are met.

The High Importance of Recognizing PTSD in a Workers Compensation Claim

It is extremely important for injured workers that are suffering from PTSD to come forward and advise their doctors and their attorney about any symptoms listed in this article because it is so important on many levels. First, it is important to get the psychiatric help you need, but properly identifying PTSD as soon as possible can also mean the difference between a successful, ongoing case that leads to settlement, or a case that simply evaporates and leaves the injured worker with little in the way of settlement.

Oftentimes, we know that despite everything we may try, workers compensation doctors can be very conservative and release injured workers to full duty well before they are ready to return to work, either physically or emotionally.

For a worker suffering from PTSD, even light duty at the same workplace is simply impossible. Just the thought of re-entering the place that has brought the injured worker so much suffered is enough to send someone with PTSD into a full-fledged panic attack, severe depression, or even thoughts of suicide.

Therefore, it is critical to get a referral for PTSD as soon as possible, long before the release by the doctors who are treating you for your physical injuries, so when that day comes, you are protected by your psychiatric doctors who can issue a work note to prevent you from having to return to the workplace.

A good psychiatrist will work with you not only to help you resolve your symptoms but he or she also knows that if you are released to work too early, you will be re-triggered and you might never recover from the PTSD brought on by the accident. He or she will therefore “protect” you from being harmed by an early release by issuing a work note holding you out of work until such time as it is determined that you can safely do so from a psychiatric perspective.

Many times, our PTSD clients have been “saved” by their psychiatrists, because the physical doctors have released the client to light duty when it is very clear that from a psychiatric and emotional standpoint that returning to work would utterly destroy our client. In these circumstances, had our client not had a psychiatrist who had already diagnosed him with PTSD from the accident holding him out of work for their PTSD, the client would have been forced to make a choice between returning to work, which means certain suicide or committal to a mental hospital, or giving up on their workers compensation case by refusing to return to work.

With proper PTSD treatment in place as a result of early identification of PTSD symptoms and a proper diagnosis, not to mention proper documentation and authorization and a lifetime medical award for PTSD, this is not a concern.

Talk with a caring Virginia and North Carolina workers’ compensation law now
Attorney Joe Miller works with psychologists, psychiatrists, physicians, and counselors who can properly evaluate your PTSD condition. He has the experience to fight to show that you meet the Virginia and North Carolina workers’ compensation requirements. For over 27 years, he has obtained numerous awards and settlements that fully compensate work injury victims. To discuss your case or that of a loved one who is suffering, please call attorney Joe Miller Esq. at (888) 694-1671 or by filling out his contact form.

Don’t Sign Anything!

Posted on Wednesday, January 10th, 2018 at 10:32 am    

Work Injury Center Attorney Joe Miller, Esq. warns injured workers in Virginia and North Carolina to never sign any document without first consulting with an experienced workers compensation lawyer. Failing to do so can have horrific consequences. Here, Joe gives a very good example of how an injured workers’ careless signing of a simple award agreement could destroy a large portion of his or her claim.

Vision Loss in North Carolina Workers Compensation

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…)

Attorney’s Fees in North Carolina and Virginia Workers’ Compensation Cases

Posted on Friday, July 22nd, 2016 at 2:00 pm    

The legal fees in North Carolina work injury cases are regulated by state law. All legal fees must be approved by the North Carolina Industrial Commission or Virginia Workers Compensation Commission. Most attorneys such as Joe Miller Esq. handle workers’ compensation cases on a contingency fee basis. This means that the injured client may only owe minimal fees in the earlier stages of the case, unless and until the case is settled. When cases settle and an Order is entered, the employer or the insurance company is ordered to pay the injured worker a specific lump sum to the attorney.

Insofar as the earlier fees, there are no ‘up front’ or retainer fees on workers comp cases.

After the attorney has performed some work on the case, or in Virginia, after obtaining an Award for the client, whether by agreement or otherwise, the Commission will typically Award a small fee such as $500.00 or $1000.00 to the attorney. The money is not taken out of the client’s money all at once, but the Comp Carrier will typically agree to pay the attorney between $25.00 and $100.00 per week out of the claimant’s comp check, taking into account the amount of each week’s check.

In North Carolina, if the attorney wins some kind of significant Motion on behalf of the client, the Industrial Commission will typically Award the attorney every 4th Comp Check (25%). Most of the time in North Carolina cases, this does not occur. The only fees ultimately paid relate to settlement.

The advantages of hiring an experienced North Carolina or Virginia work injury lawyer are many. Attorney Joe Miller has helped thousands of injured workers get strong recoveries. He has been fighting for injured workers for over 25 years. His experience and tough advocacy helps clients demand all the benefits the law allows.

The benefits include more than just obtaining your weekly compensation checks. They include payment for all types of medical bills such as hospital bills, doctor visits, medical devices and medications. Injured workers may also be entitled to vocational rehabilitation, travel expenses, and other benefits. Most importantly, a skilled lawyer fights to get the right classification of injuries for the workers. An experienced lawyer also works with your medical team when the employer tries to force the worker back to work too soon.

Common legal charges

The main legal expense is the overall contingency fee. There are also some other expenses that the lawyer may be allowed. The common legal fees are:

  • The Final Contingency Fee at Settlement. The main legal expense for the injured worker is the contingency fee. For example, the lawyer and client may sign an agreement that the attorney is entitled to twenty five or twenty percent of any recovery. If there is an overall full and final settlement of past and future comp payments plus a medical settlement, then they attorney gets one lump sum payment which is deducted from the settlement. North Carolina generally will authorize 25% of the recovery for legal fees. In Virginia, the amount is typically 20% of the recovery.


The 25% or 20% fee applies to even the most experienced lawyers. So, there is no real advantage in hiring a new or less skilled lawyer to get lower fees. Because the fees are capped at these amounts, injured workers should look to hire the experienced and highly skilled lawyers for their case.


The percentage does not apply to payment for past expenses such as medical bills. These are usually not part of the contingency fee and doctors and hospitals are normally paid directly by the employer without the lawyer getting a percentage of the medical bill; however, in Virginia, (not North Carolina), in a denied claim, your attorney may enter into a separate fee agreement with your medical providers to obtain a contingency fee once the providers are paid by the workers comp insurance company. That fee will not affect your fee agreement between you and your attorney.


The Smaller Early Attorney fee Awards in Virginia. In Virginia, if the attorney is able to secure an Award for the client, either through a hearing or Agreement, the Commission will typically Award the attorney a small fee, usually between $500 and $1000.00 It will usually only be larger if the Award results in the worker receiving a large lump sum of back pay owed. In that case, the Award may equal up to 20% of the back pay Awarded. If there is no back pay Award to draw from, the fee is not taken all at once, but satisfied through weekly payments deducted from the worker’s ongoing workers comp checks. The amount paid each week to the lawyer is adjusted based on what the worker can best afford.


Medical records. While the workers’ compensation lawyer is generally not paid a percentage of the medical bill, the attorney is entitled to be reimbursed for the cost of obtaining medical records and reports. In most workers compensation cases, the workers’ compensation lawyer will advance the funds to get the medical records and reports from the doctors who are treating the injured worker. The records are basically the office notes and other doctor or facility records and the charges are usually fairly small.

The larger fees may come into play if the doctor is asked to answer important questions in writing that are critical to the worker’s claim. The report will usually say that in the doctor’s reasonable medical opinion, the worker’s diagnosis and prognosis is whatever matches the true facts of the case.


  • Deposition costs. The North Carolina Industrial Commission recognizes that the time of the doctors is valuable – they should be spending their time helping people with injuries get better. For this reason, instead of appearing in court, the attorney for the employer and the lawyer for the injured worker will depose the doctor if necessary to determine the workers’ condition. Doctors’ depositions in North Carolina will usually take place within 60 days after the hearing. Doctors can charge up to several thousand dollars for their deposition. A qualified stenographer will also have a fee. Lawyers who advance the deposition costs are entitled to be reimbursed.

In Virginia, doctor’s depositions are usually not required, but if taken, need to occur before the hearing takes place. The same applies insofar as the attorney being reimbursed for advancing those costs.


In addition, oftentimes the defense lawyer may depose the Plaintiff in North Carolina (referred to as the Claimant in Virginia). If your attorney orders a copy of the transcript, there are costs associated with that as well.

Finally, depending on the facts of your case, there may be eyewitnesses or other witnesses whose testimony is critical to pursue or defend your claim. There are obviously costs for such transcripts as well.


  • Free consultations. Most work injury lawyers provide free consultations. Our firm has what we call our Free Seven-Step Elite Case Evaluation Process that only takes about 10-15 minutes to complete. The first time you see or speak with our firm you will speak with our intake specialist on the phone.


The intake specialist will typically ask you precise questions about your specific situation, which questions constitute our Seven-Step Evaluation Process. Based on such items as the facts of the accident, your injuries, and other factors – the lawyer will be presented with your responses to these questions then decide whether you have a chance of success or if it is a case our firm is best suited to handle.


The consultation is also a chance for the injured employee to have his or her case reviewed by an experienced profession and it is absolutely free.


If both sides agree to pursue the workers’ compensation claim, then the lawyer will prepare a fee agreement to be signed by the lawyer and the client.


  • Mediation Costs. In North Carolina, there are costs involved if the case mediates, which are costs advanced by the attorney. In Virginia, this process is a free service provided by the Commission.


  • Proper representation. A skilled lawyer understands that if you reach an overall settlement of your case, often times through the mediation process, that you can’t come back later and ask for more money. This is why a good lawyer reviews all of your expenses before settlement and also reviews some of the problems that might arise after settlement such as new medical problems.


  • Court filing fees. Generally there is not a court filing fee to process your North Carolina worker’s compensation case. In personal injury actions, the injured person normally has to pay some funds upfront to get into court. Workers’ compensation cases are different. There are usually no or little fees to process a work injury claim.

North Carolina Industrial Commission and Virginia Workers Comp Commission rules on legal fees

The lawyer normally files the fee agreement with the Commission. It is the same in Virginia. If the fee is reasonable, the lawyer’s fees are approved. If the Commission finds that the fees are unreasonable, the reasons are given. The lawyer then can Appeal the decision to the Full Commission.

Some of the factors the Commission will review are the time spent on the case, the amount involved, the results achieved, whether the fee is contingent of fixes, what other lawyers normally charge, the experience level of the lawyer, and the overall nature of the lawyer’s services.

Contact an Strong Advocate for your North Carolina Worker’s or Virginia Compensation Case

Experience matters. Because lawyers take work injury cases on a contingency fee basis and because legal fees are usually capped, it makes good sense to hire an attorney such as Joe Miller who has a strong track record. If you were injured on the job, contact attorney Joe Miller for help at 888-667-8295. You can also complete the online form to schedule an appointment.

Choosing a Doctor in North Carolina Work Injury Cases

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.

The initial doctor visit

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.

The authorized treating doctor

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.

The right to ask for a change of 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.

  • The first is that you want to get the best medical care you can get. If the treating doctor is rushing you back to work, or not ordering the proper tests, you are not getting the best care. Your ability to work is your livelihood. You have the right to be treated by competent doctors who have your health interests at heart.
  • The second is that the medical diagnosis and treatment directly affects your wage loss benefits.
    • The treating doctor is the doctor who normally classifies the type of disability the worker has – temporary total, permanent total, or permanent partial impairment to a specific body part.
    • The initial treating doctor will normally indicate if the worker can return to work;
    • The treating doctor reports what work restrictions may apply—you cannot obtain benefits without knowing about these restrictions and having a current work note signed by the treating doctor.
    • The treating doctor also assigns disability ratings which are used in the case of workers with partial disabilities.
  • The third is that the medical diagnosis dictates what medical bills are paid. This includes more than just the doctor visits. It includes payment for medical devices, physical therapy, diagnostic tests such as MRI’s and CT scans, prescription expenses, and pain management.

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 Defense Independent medical examination (IME)

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.

Some additional medical concerns in North Carolina Worker’s Compensation Cases

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.

Get Strong Medical Advice for Your Work Injury Case

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.

Types of Disability in North Carolina Workers Compensation Cases

Posted on Monday, July 11th, 2016 at 2:00 pm    

Injured workers are entitled to wage loss benefits based on the type of disability they have. Disability is a legal term of art that an experienced North Carolina workers compensation attorney can explain. Worker’s compensation disability determines how long the injured employee gets benefits and what the amount of those benefits are. The correct classification can mean more money and money for a longer period of time.

Workers who have lost limbs, lost an ear, or suffer from severe pain that won’t ever go away should be paid according to their disability – not because the employer or insurance company wants to rush them back to work or wants to save money. North Carolina attorney Joe Miller has been helping injured workers for over a quarter century. He has helped thousands of injured workers get strong recoveries. He has the experience and skills to work with medical doctors and to fight unreasonable classifications.

The four main types of North Carolina work injury disability

Disability in workers’ compensation is different than Social Security Disability and it is different than disability in an insurance contract. Disability, in North Carolina work injury cases, means the employee cannot do the work he/she did before the accident or illness. Workers who can work but with medical restrictions may be entitled to partial benefits, or even full benefits if their employer cannot accommodate them or if they can show that they cannot find work within their physical restrictions.

In order to obtain wage loss benefits, a worker, with the help of an experienced work injury lawyer such as Joe Miller, must show that he/she has one of the following types of disability:

  • Temporary total disability. Many workers are unable to work for a limited period time. When their injuries mend, they are ready to return to work. While they are getting medical attention, these workers are entitled to 2/3rds of their pre-injury wages. When they return to employment, they get their pre-injury salary. Temporary benefits can last for up to 500 weeks if the injury or illness occurred after June 24, 2011.
  • Permanent and total disability. Some workers can never return to work. Their injury or occupational illness is too severe. Workers who reach Maximum Medical Improvement and still cannot work at all may be entitled to additional work loss benefits for life, if, after 425 weeks of receiving temporary total disability, they can show to the Industrial Commission that they are unable to work in any capacity. Workers who have lost the use of both hands, both arms, both legs, both feet, have a severe brain injury , or some combination are generally presumed to be unable to work permanently. There are other presumptions the law offices of Joe Miller Esq. can explain.
  • Temporary partial disability. Here the worker has the ability to do some work, but not the same level of income as before the work injury or occupational illness. The worker gets 2/3rds of the difference between what he/she earned before the disability and what he/she can earn after the disability for up to 500 weeks if the injury or illness occurred after June 24, 2011.

For example, if the worker earned $1000 a week pre-injury and now earns $400 a week, the worker gets 2/3 of $600 ($1,000 minus 400) for a total of $400. Payments are made on a weekly basis until the worker can return to work at full capacity and thus earn his/her full wage.

  • Permanent partial impairment. This is money paid for injuries to specific, ratable body parts. It is calculated on the basis of a percentage of disability to a particular body part which percentage is assigned by the injured worker’s treating physician. These benefits fall under North Carolina General Statutes Section 97-31. This statute includes a schedule of injuries by type and awards the worker benefits according to the schedule. For example, a worker who loses the use of a thumb is entitled to 2/3rds of the average weekly wage for 75 weeks. Another example: If a worker is found to have a 10% disability to the back, that benefit would be 10% of the maximum benefit of 300 weeks for the back, or 30 weeks.

One major caveat: The worker cannot get both the fully weekly benefits for 500 weeks and the scheduled benefit. The worker must elect between the standard weekly disability benefit and the scheduled benefit. The most common cases where the percentage ratings come up are where the injured worker has returned to pre-injury employment. In such cases, the worker’s only additional benefits may be permanent partial impairment.

Employers will often try to encourage doctors to force workers back to work before they are ready. They will also contest the most serious classifications. They will argue that workers have a temporary disability and not a permanent disability. They will assert that a disability is only partial instead of full. They will argue that the injuries are pre-existing and not related to the accident. An experienced North Carolina workers’ compensation lawyer such as Joe Miller will work with your doctors and will make strong legal arguments to help convince the Industrial Commission that your classification matches your inability to work.

How disability affects medical benefits

The type of disability a worker has does not affect the payment of medical bills. All workers, regardless of the type of disability they have, are entitled to seek medical attention to help them get healthy – if they have suffered a workplace accident or illness. Workers can continue to get medical help until it is clear that continued medical help will not improve the workers’ condition – that the worker has reached maximum medical improvement.

If a doctor says an employee can work but with medical restrictions – then the employer and insurance company must pay for any medical expenses to meet those restrictions. Workers with partial disabilities may require medical devices such as prosthetics or medications in order to work.

Workers with a temporary or partial disability may require occupational therapy to learn how to adjust their body to old or new work demands. They employer must pay for this type of rehabilitation. Employers may also be obligated to pay for the travel expenses to see the doctors and to get the proper therapy.

Joe Miller thoroughly and aggressively argues for more than just wage loss benefits. He is a strong advocate for his clients and works to get all related medical bills for any type of disability.

For help with workers compensation disability claims, consult North Carolina work injury lawyer Joe Miller

At the Law Office of Joe Miller, our legal team works to make sure work injuries are classified correctly. For help now, please call attorney Joe Miller at 888-694-1671 and ask for Joe Miller, or email Joe at

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