Posted on Friday, March 10th, 2017 at 2:00 pm
Just because your employer or the insurance carrier for the employer says you have a pre-existing condition, does not mean you cannot file a claim. While a pre-existing medical condition may sometimes defeat your right to collect work injury benefits, there are exceptions and there are defenses. The best course of action is to review your case with an experienced North Carolina or Virginia workers’ compensation attorney who can make sure you get the correct legal and medical analysis.
In North Carolina and Virginia, even if the work injury was partially due to pre-existing causes, if it can be shown that the work injury aggravated the pre-existing condition, then the employer and carrier is 100% responsible for the medical bills and temporary total disability payments that the workplace accident actually causes. Often the employer will try everything it can to show that your pain and symptoms are conditions you experienced before the accident date. This is especially true if the worker has a permanent injury.
Watch a video from attorney Joe Miller about pre-existing conditions in Virginia Workers Comp Cases.
One of the key arguments our legal team makes in pre-existing condition cases—when the comp carrier is attempting to deny the claim— is to argue that the accident at least partially aggravated your medical condition. In Virginia, the standard is that the work accident must have caused a “mechanical change in the body.” We take it upon ourselves to make sure your doctors are educated that the standard for causation in Virginia is actually very, very low.
So long as your doctor can say that your current disability and treatment were caused, even to a slight degree, by the work accident, then 100% of the condition is compensable. That means the pre-existing condition really does not matter.
For example, the most common place where we see the pre-existing condition claims is on back injuries. Particularly if you have been employed in labor most of your life and you are over 50, even if you have not been hurt, an MRI of your lumbar spine is likely to reveal a basket of horrors such as bulging discs, osteophytes, foraminal stenosis, cord compression, and all sorts of other issues. Of course, you can have all kinds of things like this going on in your spine and feel perfectly fine, until………
When a trauma occurs, those asymptomatic conditions suddenly become very symptomatic, in some cases so much so that you may be unable to walk. Although it is true that many of these conditions took years to form and develop, so long as the treating physician can say that more likely than not the work accident caused a mechanical change in the body that worsened a condition that is now causing you disability and necessitates treatment, then that injury is 100% compensable. The fact that there were pre-existing conditions that were not causing you pain or interfering with your ability to work on a daily basis is irrelevant.
Prior injuries that have not healed
The real problems in proving your case may come when you have a condition that WAS causing you pain and you were treating for that is now aggravated by a work accident. The ability to prove such cases are really going to depend on the level of treatment you were engaged in leading up to the accident, the severity of your previous symptoms, whether you had already recovered from those issues prior to the accident, and whether you were continuing to lose time from work as a result of the prior accident.
If the prior pre-existing condition arose through another workers’ compensation claim, then sometimes it is appropriate to file more than one claim and sometimes it is appropriate to leave it alone and blame everything on the first accident, assuming the evidence supports that. This is really something that you must strategize together with experienced counsel, as every case is different.
There are a few other considerations that you will need to review with an experienced North Carolina or Virginia (depending on where the accident happened) lawyer.
If you are receiving Social Security disability income or private disability income, those also should not affect your ability to get new worker’s compensation benefits. The key issue will still be how much did the new workplace accident contribute to and worsen your condition. Still, it is a good check to review any other payments with your work injury lawyer. Similarly, it’s wise to review any other benefits such as retirement benefits you get with your work comp lawyer.
Virginia and North Carolina workers’ compensation lawyer Joe Miller Esq. is ready for the arguments defense lawyers and insurance adjustors will try to make to reduce or deny your claim based on pre-existing conditions. He understands the counter-arguments that can help you get justice when you suffer a work-related injury. Attorney Joe Miller has helped thousands of injured workers get strong settlements and awards. To speak with an experienced workers’ compensation lawyer, please phone at (888) 694-1671. You may have a sizable recovery coming to you.
Posted on Wednesday, March 8th, 2017 at 2:00 pm
Workers’ compensation cases have several key differences from personal injury cases. At the Work Injury Center, we are experienced work injury lawyers who understand these key differences. We do everything we can to help workers get all the work injury benefits they deserve and to also preserve their personal injury rights.
Before the North Carolina and Virginia worker’s compensation laws were enacted, employees had to bring personal injury cases against their employer. These lawsuits put a lot of pressure on the work relationship. Eventually, State legislators realized these lawsuits hurt more than helped both sides. The workers’ compensation laws were compromises to help workers get paid and return to work when they are able, while reducing the demands on the employer to defend the lawsuits and risk having to pay large awards.
Here are some of the key differences:
In a worker’s compensation case, there is no need to prove the employer was at fault. The key requirements are that the worker show that the accident happened while the employee was performing his/her job and that the accident caused he worker’s injuries. There is no need to assign blame. There is no need to have co-workers testify or to cross-examine your boss as to what he may or may not have done wrong.
That being said, in North Carolina there are extremely rare circumstances where an employer’s gross negligence can permit a lawsuit instead of a workers comp case; however, this is almost never permitted. In North Carolina, if the employer can be shown to have violated an OSHA or other safety law which proximately caused the worker’s injury, there is a potential 10% increase in compensation available to the employee.
That is not the case in Workers Compensation. In Virginia, unless it can be proven that you willfully ignored a known safety rule which caused you to get injured, your negligence or carelessness will not prevent you from bringing a worker’s compensation case.
In North Carolina, even if you violated a safety rule or OSHA rule, similar to the rule against employers, this would not bar your case, but may result in a 10% reduction in your compensation.
The contingency rate is much less in worker’s compensation cases, typically 20% in Virginia and 25% in North Carolina. Moreover, all such arrangements are subject to the approval of the Virginia Workers Compensation Commission and the North Carolina Industrial Commission.
In personal injury cases, it is often necessary to bring expert witnesses into court. Doctors charge high rates for testifying in court or via video deposition because they’re losing time away from the office.
In worker’s compensation cases, many times, the testimony of the doctor can be submitted through the physician’s medical reports or by taking a medical deposition, both of which are far less expensive than bringing the doctor live to Court. In personal injury cases, there also may be the need to bring in experts such as traffic reconstruction experts or economic experts who can be expensive too. Such experts are typically not involved in workers compensation cases.
In addition, the employee vs independent contractor relationship is complicated. Workers should not automatically assume they are an independent contractor just because that is what the employer says. In some cases, we can prove that the worker really was controlled by the employer and should be considered an employee who can demand work injury benefits, even if there is a contract that says otherwise. Click here for more information on this issue of employees vs. independent contractors.
Whether it is appropriate to proceed in that regard depends on the size and assets of the employer. It is extremely rare that a large, well-financed employer fails to carry workers compensation insurance in Virginia; however, in the rare instance that it does happen, then a lawsuit may, in fact be brought against the employer by the employee and the employer waives all defenses to the lawsuit. Employees should seek competent counsel before deciding how to proceed.
Injured employees who do have a valid worker’s compensation claim may also, in some cases be able to bring a personal injury claim against a third party. For example, if the work equipment was defective, the worker can normally file a worker’s compensation claim and also bring a product liability claim against the manufacturer or seller of the defective product.
North Carolina and Virginia workers’ compensation attorney Joe Miller Esq. has been helping employees get justice for over 27 years. He is ready to explain your options, analyze and prepare your case, and plead your case with insurance adjusters and before workers’ compensation Deputy Commissioners . For answers to your questions and tough advocacy, please call at (888) 694-1671 to speak to a trusted workers’ compensation attorney or fill out our online form for more information.
Posted on Friday, February 3rd, 2017 at 2:00 pm
Construction work is one of the leading cause of workplace accidents and sadly causes of death, too. Many construction accidents leave a worker permanently disabled or needing extensive long-term medical care. Workers who can’t return to their job often need to retrained for jobs that involve much less physical labor. Construction work includes jobs at private residences, commercial buildings, industrial sites, road and bridge repair, and a variety of needs throughout both North Carolina and Virginia
Unlike office work, construction work is often at a temporary site which is a constant state of change because of the work being done. As with all workers comp injuries, there is no need to prove that the company that ran the site, a supervisor, or any other party was responsible or at fault for the employee’s accident. Any employee who is hurt while doing his/her job and suffers injuries that prevent an immediate return to work is entitled to payment for medical bills and 2/3rds of lost wages until a return is possible (with some exceptions).
Construction companies are supposed to comply with local building laws. If they don’t, accidents are much more likely. Even at sites that obey all the rules though, accidents are all too common. Some of the ways construction site accidents occur are:
Fatigue is another cause of construction site workers. Tired workers are easily injured by others and even by their own actions. Other accident causes include fires, explosions, and control of hazardous energy.
According to the Occupational Safety and Health Administration, one in five fatalities in the private sector were due to a construction site accident. The top four reasons (other than vehicle accidents) were falls, electrocution, being struck by an object, and being caught-in/between. Those four accident types accounted for over 60 % of construction site deaths in 2014 – over 500 workers.
Workers’ compensation does provide some additional benefits for some injuries such as the need to have a body part amputated. Attorney Joe Miller understands which injuries qualify for additional compensation and the amount of the compensation. He also explains to family members what benefits the family is entitled to if someone tragically dies. In addition to the strong possibility of a family losing a beloved relative, many workers suffer the following types of serious, sometimes permanent, construction site injuries
Other common construction work accidents include eye injuries, injuries to the extremities, and post-traumatic stress disorder
There are a few special considerations, your North Carolina or Virginia worker’s compensation lawyer will need to review if you are hurt at a construction site and want to file for workers’ compensation benefits. Workers generally need to be employees and not independent contractors. Whether you qualify is a decision for the worker’s compensation office to determine. Even if an employer says you are an independent contractor, you may still qualify as an employee.
The key issue is control. What level of control does the employer have over the worker? Does the worker have to report to the worksite at a certain time each day? Are there rules to follow that are set by the boss? Who supplies all the main work equipment? If it’s mostly the bossman, then in all likelihood, no matter what the employer tells you, you are an employee and not a subcontractor.
We see this issue come up again and again in construction cases. Workers compensation insurance can be expensive. So companies get bad advice from someone who says they can just call all their employees subcontractors, even though they are actually employees, and get away with it.
The worst part about that is that the employer will then fail to purchase workers compensation insurance. Then when the employee suffers a severe injury, the employer shrugs and says “oh, well, you know you’re a subcontractor, right?”
Sorry, Mr. Bossman, it does not work that way. The good news is that even in such situations, all may not be lost. If the employer was under another contractor or there was a general, the injured worker should be able to recover under the general contractor’s worker’s comp insurance. Also, in Virginia, assuming the employer had at least 3 employees regularly employed in the business, the injured worker may find relief from the uninsured employer’s fund.
In construction place accidents, the injured worker may have a direct personal injury claim against non-employers such as manufacturers of equipment that was improperly made or designed.
North Carolina and Virginia workers’ compensation attorney Joe Miller has the experience and tenacity that injured workers need. His dedication to detail, understanding of the relevant legal and medical issues, and his ability to argue the facts of your case have led to thousands of satisfied work injury clients. For immediate help and strong advocacy, please call attorney Joe Miller at (888) 694-1671. You can also schedule an appointment through his contact form.
Posted on Wednesday, February 1st, 2017 at 2:00 pm
In today’s economy with its emphasis on technology, many North Carolina and Virginia workers are working from home. From home, they can access the Internet, download files from the cloud, have videoconferences when needed, and create or use company software. Some workers, such as nurses and salespeople do all their work from home and/or on the road visiting clients. Others work at the company office but take an occasional day to work from their house or apartment. While working with a computer or reading files may not seem like a likely place for an accident, home accidents can occur for many different reasons.
An employee can trip and fall over a wire, fall down the stairs, slip on ice while going to the car, or suffer a heart attack. A fire is just as likely to occur at home as it is at the office. It is generally not a requirement that the employer inspected the employee’s work environment – most employers do not bother to check. Many workers who do sit-down jobs suffer back aches, neck injuries, and repetitive stress injuries.
At the Law Offices of Joe Miller Esq., we have helped thousands of workers get justice when an accident happens. We have been providing this advocacy for over 25 years. Our legal counsel extends to all types of workers including at-home employees and workers who may be working from an offsite location. Part of our counsel is to explain that under the right circumstances, telecommuters are entitled to state workers’ compensation benefits, which includes payment for medical bills and 2/3rds of average weekly wages.
Both employers and employees like the advantages of telecommuting. For employers, it can be saving on expenses for office rooms, utilities, and office furniture, and generally the ability to expand into new territories without having to invest in “brick and mortar.” It also means a happier workforce because many workers enjoy the convenience of working from home. For employees, telecommuting means no need to spend hours on the road to report to a central office, less gasoline costs, the ability to sleep a littler later, and often a more relaxed dress code. Plus, homeworkers can listen to their own music and create their own work environment.
Statistics from Global Workplace Analytics confirm the popularity of telecommuting:
First, it is important to remember that the injured worker does not have to prove an employer was at fault for the accident. The key requirements are to show that an accident happened that is work-related and that the employee’s injuries were caused by that accident. The trade-off is that employees can’t sue their employer for pain and suffering and they only get 2/3rds of their lost wages instead of the full amount of lost earnings, for up to 500 weeks.
When an accident happens at work it is usually clear that the accident was related to the employee’s work. Accidents at home require a little more proof that the accident was work-related. At-home accidents are more likely to be questioned by insurance companies and defense lawyers who will argue that that the accident was related to something personal the worker was doing instead of actual work. A worker at the office who falls while going to the bathroom is entitled to benefits. If the same type of accident happens at home, it may be attacked.
This is a different question than asking if the accident was work-related. Work-related means that some identifiable work task was being performed. During the course of employment means that the employee was working for the company or boss at the time of the accident. An accident that happens at 3 in the morning because a regular 9 to 5 worker decides to do some word processing because he can’t sleep may not be considered during the course of employment.
Many telecommuters login to a computer system and log out at the end of the day. Workers who were properly logged in and are hurt while logged in have a stronger case than other workers.
Another item that may be considered: Did the employee typically start the day with a conference call with his or her boss to go over the day’s assignments? If the worker was hurt subsequent to the morning meeting, this may be a good indication of being injured in the course of employment.
What was the worker doing at the time? Was he or she carrying items such as files or equipment related to the work to be performed? This would weigh strongly in favor of an injury occurring in the course of employment.
Many telecommuters are not full-time employees. Only employees are entitled to collect North Carolina or Virginia workers’ compensation benefits. There are a number of factors the states will review in deciding if the worker was an employee or independent contractor. The abilities of the employer to control the manner and time of work are key factors. Workers who use company software through the Internet may be more likely to be considered employees than workers who use their own software.
As mentioned previously a daily, scheduled meeting to discuss the day’s planned activities is also a good indicator of control. Also, does the employer require that the employee wear a company uniform or other clothing when going on appointments? Also, how is the worker paid? Is it per contract or job completed, or on a regular, weekly basis? Does the worker have to invoice the work?
As with any type of injury, the worker still needs to inform the employer that an accident has happened. Workers are not required to return back to work until they can do the telecommuting job they were doing before the accident.
The laws on telecommuting and entitlement to worker’s compensation are evolving. North Carolina and Virginia work injury attorney Joe Miller understands the laws and many of the practical issues involved in claiming benefits for at-home injuries. For help now, please call Joe Miller at (888) 694-1671 or use his contact form.
Posted on Wednesday, December 7th, 2016 at 2:00 pm
Settlement rates at IC mediation conferences have historically been at or above 70%.
Under the automatic referral procedures commenced during the 1996-97 fiscal year, whenever a party files a request for hearing in a workers’ compensation claim, the Clerk’s Office sends an Order for Mediated Settlement Conference to all parties along with the Commission’s acknowledgment letter.
The only cases that are not automatically referred to mediation are claims against the state brought by prison inmates, which are excluded by law, expedited medical motions and administrative appeals.
Cases involving injured workers who are not represented by counsel are generally mediated only if all parties agree to mediate
Cases involving non-insured employers are generally mediated only if all parties agree to mediate and the Deputy Commissioner responsible for the adjudication of non-insured cases approves the parties’ request to refer such cases to mediation.
The parties have the right to select a mediator certified by the Dispute Resolution Commission on their own and may do so within the time periods specified by the ICSMC Rules. If the parties do not have a specific mediator in mind, they can select one from a list of mediators available on the Commission’s web site or from the Dispute Resolution Coordinator’s office. Our office has our ‘favorites’ who we feel do a good job for our clients and will typically select those mediators if we can, barring some major objection from the defense.
To be appointed by the Industrial Commission, a mediator must be certified by the North Carolina Dispute Resolution Commission to mediate cases in North Carolina’s Superior Courts through the court’s mediated settlement conference program. The mediator also must have a Declaration of Interest and Qualifications form on file with the Commission. The declaration must state that the mediator, if an attorney, is a member in good standing of the North Carolina State Bar; that the declarant agrees to accept and perform mediations of disputes before the Commission with reasonable frequency when called upon for the fees and at the rates of payment specified by the Commission.
After a mediation conference is scheduled to convene on a specific date, it may not be postponed unless the requesting party first notifies all other parties of the grounds for the requested postponement, or without the consent and approval of the mediator or the Dispute Resolution Coordinator.
Generally, the worker and the employer split the mediator’s fee though sometimes payment of the fee can be adjusted as part of any overall settlement.
All mediators must adhere to the Standards of Professional Conduct for Mediators adopted by the North Carolina Dispute Resolution Commission.
Motions related to the ICMSC (Industrial Commission Mediated Settlement Conference) Rules should always be addressed to the Dispute Resolution Coordinator, but all other motions should be addressed to the Industrial Commission’s Executive Secretary, unless the case has already been assigned to a Deputy Commissioner or a Full Commission panel, or the motion is otherwise subject to the Commission’s expedited medical motions procedures.
An experienced North Carolina workers’ compensation lawyer will prepare your case for mediation by making sure all the appropriate medical reports, bills, and future cost estimates are available. The attorney should also have ready any vocational reports or other documents. Additionally, the attorney will review what happens at the mediation, and what the worker’s negotiating points are in advance, and the best way for the injured worker to conduct him or herself at the mediation. The employee is not required to speak or testify at the mediation. With an experienced work injury attorney, such as Joe Miller, the mediation should run smoothly with minimal surprises.
Mediation is an attempt to resolve a dispute. If either party does not think the mediator is working towards a fair resolution, the party (including the employee) can request a full hearing. The worker, or the worker’s lawyer, may also seek to have a clearly biased mediator disqualified and request that a new fair mediator be appointed.
Generally, no. The parties should be prepared to discuss all the relevant issues at the assigned mediation. If any issues cannot be resolved, then the mediator will report that there was an impasse and the case will then proceed to a hearing before a North Carolina worker’s compensation Deputy Commissioner.
It varies. Some mediations can take a very short time – less than an hour. Usually those are the ones that do not settle. Most mediations several hours to make sure all the issues are addressed and all the details are addressed. A lot of mediation comes down to getting the math right – making sure all the future medical bills and all the lost wages are addressed. Other issues such as discounts for lump sum payments and any moneys that might be owed to other government agencies who advanced money may also need to be finalized. Once an agreement is reached, you can’t reopen the process. So, it is important to be prepared and get all the details right. That is also a big advantage in North Carolina. If an agreement is reached, the Mediator will draw it up on a special form. That form carries the weight of a Court Order. This is so that if anything should ever happen to the injured worker, the money is still required to be paid on the claim by the insurance company. That’s a major reason for hiring a North Carolina workers’ compensation lawyer who has successfully negotiated many mediations.
The mediation topics are going to vary depending on whether the claim is accepted or denied. We obviously prefer to mediate accepted claims, as we are in a stronger position. This is because the employer and insurance company have obligated themselves to pay the injured worker on an ongoing basis and cover the ongoing medical bills. Therefore, the only issues typically will relate to the degree of impairment of the worker and his or her ability to return to work, as well as future medicals.
When the claim is denied, them many more issues may come into play, just as they would at a hearing. Some common mediation topics are:
Many other issues get discussed. Your North Carolina work injury lawyers will address all the ones that apply to your situation.
Mediation is a negotiation. The employer and the employer’s insurance company will have an experienced attorney fighting for them. You need a North Carolina work injury lawyer who understands mediation and has a track-record of success, with a team behind him that knows how to put you in the best position to successfully resolve your claim at mediation. Attorney Joe Miller, Esq. has been helping injured workers for over a quarter century get justice. He will fight to get you every dollar you deserve and will only work towards a settlement when you know your medical condition. Call now at (888) 694-1671 to get answers to your questions. You can also fill out my contact form to make an appointment.
Posted on Monday, October 31st, 2016 at 2:00 pm
Accidents at work happen for many reasons. Employers should be aware of the various causes and take steps to try to avoid these types of workplace accidents or, at least, take preventive steps to try to reduce them. A common misconception is that the employer has to be negligent or “at fault” for the accident at work. This is false. Workers in North Carolina and Virginia do not have to prove that the employer was responsible for a workplace accident in order to have a valid workers compensation case. The worker just needs to prove a workplace accident did occur at some specific moment in time, and the injuries were caused by the workplace accident. Still, the best way employers can help their workers is to take safety precautions to prevent the accident from occurring.
Attorney Joe Miller is an experienced North Carolina and Virginia Workers’ Compensation attorney. When a common or uncommon workplace injury occurs, he has the skills and tenacity to file, negotiate, and litigate your work injury claim. He also understands that often times the type of accident is an indicator of the types of injuries that occur and the typical time frame for how long the worker will likely be out of work.
· Workplace violence. Many injuries are caused when workers get into arguments with other workers or when a worker has mental health issues and that instability leads him/her to lash out at other workers. In Virginia, if the employee was an unwitting victim of horseplay or violence, he or she still has a valid claim. On the other hand, if the worker was a willing participant, this may invalidate the claim, especially if the argument had nothing to do with the work at hand.
· Repetitive Stress or noise exposure. Many workers suffer injures due to repetitive motions such as working with computers or performing the same tasks over and over and over again in an assembly line or using hand tools. These are known as occupational disease injuries. Employees who suffer this type of stress often get injuries such as carpal tunnel syndrome, or hearing loss. Better equipment and better training, and rule enforcement can help reduce these types of injuries. Employees who suffer repetitive motion injuries, hearing loss, or some other injury they believe was caused by conditions at work need to speak to an experienced Workers’ Compensation lawyer because there are very specific things that need to be proven in order to qualify for a valid occupational disease case.
· Getting clothes or body parts entangled in machinery. Clothing, hair, fingers, shoelaces, and other items can get caught in the machinery which can then cause severe injuries including loss of a body part. Employers should make sure workers are educated about the risks of working with some types of equipment and take necessary preventative steps. Examples of safety measures include better equipment and educating the employee about proper work techniques. We often see some of the most severe injuries where employers cut corners by failing to properly maintain equipment, failing to utilize machine safety guards, deliberately disengaging safety devices, or failing to have any written, enforced rules or procedures for hazardous work duties.
· Car and truck accidents. Many workers such as construction workers or delivery drivers use vehicles for their job. Vehicle accidents can be deadly or cause serious injuries. Workers should be advised on the local driving rules and on how to properly operate the vehicles – especially trucks. Employers should have clearly defined and enforced safety rules which require the use of seatbelts at all times.
· Lack of industry standard simple safety measures. Many workers get injured because they are concentrating so hard on immediate physical tasks that they fail to see objects that can hurt them. For example, a worker may not see a door, table, while carrying a heavy load, or not see a person while driving a forklift around a corner. Also Employers should create a work environment that minimizes these types of accidents. For instance, the installation of wide-view mirrors at strategic points in a plant or factory can increase visibility of oncoming vehicles and people. Creating ergonomic environments where employees with restricted vision will have a path clear of obstacles is also helpful.
· Falling Objects. Employers should make sure that shelves aren’t overstocked and that items hanging from the roof or other high places are secure. Workers should be advised to wear helmets in certain work areas. Injuries can include brain damage, head trauma, and pain in the area where the object strikes the worker.
· Slips and Falls. This type of workplace accident is very common. Workers can slip or trip when there are loose objects lying around, the floors are slippery, there are tears in carpets, or for a variety of other reasons. Injuries can include broken bones, soft tissue injuries, bruises, concussions, and lacerations. In severe cases, a worker may suffer death or permanent injury.
· Falls from High Places. Workers who use ladders, work on roofs, or work on stairwells can slip and fall. While protective gear can help, anyone who falls from a high height is likely to suffer a long-term injury. Proper spotting and use of safety harnesses as required by OSHA is essential. We have seen too many workers get injured in this fashion when again, employers are willing to cut corners and not create or enforce strict rules in relation to working at heights.
· Overexertion. Many workplace accidents happen simply because the worker is being pushed too hard, and we often see this occur in the heat. When workers are tired, they are much more likely to trip, fall, fail to see other objects, or fail to use proper techniques, not to mention suffer heat stroke or a heart attack. Fatigue is a major cause of workplace accidents and is one of the most preventable – making sure the employee gets enough rest, and is provided with appropriate opportunities for cool-down and hydration.
The US Department of Labor, through the Occupational Safety and Health Administration (OSHA), keeps regular records of why workplace accidents occur. In addition to the causes listed above, some other causes of workplace accidents, according to OSHA, include:
· Poor communication – especially about safety issues
· Failure to provide respiratory protection
· Faulty equipment including up-to-code scaffolding equipment, bad ladders, and machines without safety guards
· Forklift malfunctions and misuse
· Electrical failures such as improper wiring
The list or reasons workplace accidents occur is virtually never-ending. Still, trying to categorize them makes it easier to work to prevent them. Some additional causes, that are human related, include:
· Taking shortcuts. Workers should never place speed over safety. Failing to take proper precautions can cause injury and death. Unfortunately, employers often encourage this behavior in the name of higher profits.
· Failure to clean up. Workplace supervisors should inspect the workplace before work starts each day to make sure the place is free of debris, that equipment functions properly, and that all loose elements such as overheard storage are secure.
· Poor training and preparation. Workers should be trained on how to use each piece of machinery or equipment. They should also be trained on everyday workplace safety issues to avoid injuries and to respond to them quickly when they do happen. There should also be written enforceable rules, and daily safety meetings prior to work beginning to address specific concerns of employee and management.
· Failure to address mental and emotional issues. Many workers have personal concerns that should be addressed. Workers who are thinking about their family members or other aspects of their personal lives are not focusing on safety. Employers should make some effort to help workers have the time to address personal issues so the worker can be safe and more productive.
If you were hurt in any type of workplace accident, do not delay. Even though the employee does not have to prove the employer was negligent, it does help a great deal to be able to show how the accident occurred. You may be leaving out a critical detail that could mean the difference between your employer covering or denying your case. For our free, quick, elite, 7-step case evaluation, phone Joe Miller Esq. at (888) 694-1671 or fill out his contact form. Attorney Miller represents injured workers in both Virginia and in North Carolina.
Posted on Monday, September 19th, 2016 at 2:00 pm
Many questions and answers about Worker’s Compensation can be found at the North Carolina Industrial Commission Website. Still, the best recommendation is that a worker review his/her case with an experienced North Carolina Workers’ compensation attorney. The attorney will be current on the relevant laws and legal issues. Mostly, the lawyer will understand many of the practical issues that can help make the difference between a substantial recovery and a minimal recovery – or no recovery at all.
Attorney Joe Miller knows the legal and practical issues. He is also a strong advocate for his clients, most of whom are in pain and worry daily about how they can manage their medical costs and daily living expenses. He has been helping injured workers in North Carolina and also in Virginia get justice for over 25 years. Along the way, he has obtained substantial settlements and awards for thousands of injured workers.
Some of the medical questions his firm advises clients about are:
The employer or the employer’s insurance carrier generally provides the employee with a list of doctors to see and pays the bills for the medical treatment. Employees, with some exceptions such as a medical emergency, treat with the company doctors. If there are good grounds, the employee (with the help of the lawyer) can petition the Industrial Commission for the right to change doctors. Before switching doctors, the employee should get the approval of the employer or, better still, approval from the North Carolina Industrial Commission.
Generally, an employee can see a chiropractor up to 20 times in North Carolina – if the employer agrees. Employers often agree because the cost for chiropractic services is less than that for pain management and orthopedic doctors. After 20 visits, the chiropractor needs additional approval from the employer.
Employees can be reimbursed in the following instances:
If the travel is more than 20 miles, employees can be reimbursed at the rate of:
In addition, the North Carolina Industrial Commission permits self-insurers to pay the employee directly for travel expenses – without approval from the Commission.
You need to keep track of and submit your mileage for any and all doctor or therapy visits over 20 miles.
Yes. The employee can get emergency treatment from a doctor or hospital. The employee must though immediately request approval from the NC Industrial Commission after the fact.
The bill, along with the medical records, should be sent certified mail, return receipt requested, to the employer, self-insured employer, or the workers’ compensation insurance carrier. The receipt should be kept as proof of mailing.
Yes. Medical bills, first reports of work injury and subsequent injury reports can be sent through the North Carolina Industrial Commission Electronic Data Interchange (EDI).
Generally, doctors should submit their medical bills to the NCIC within 75 days of treatment or service. Some extensions can apply such as when an initial work injury claim is first denied and then later approved.
Bills for Independent Medical Exams (IMEs) are submitted with a special code. The IME includes more than just the exam. It also includes a full review of medical records and a detailed medical report.
“The North Carolina Industrial Commission has adopted nearly 1100 HCPCS billing codes to describe supplies and equipment used in workers’ compensation treatment. However, the Commission has not yet incorporated into its fee schedule all of the HCPCS level codes for supplies and equipment. For example, none of the “J” codes have been adopted.” “If a custom-made orthotic or prosthetic is not contained in the Commission schedule, these items should be paid per agreement between provider and payer.”
No, they do not. Insurers and self-insurers may pay all medical bills, including hospital bills, without submitting them to the Industrial Commission for approval.
Only if an office visit is not charged.
This type claim means that there is no more than one day of lost time, no disfigurement or impairment, and no more than $2000.00 in medical expenses. Basically, it means that the employee will not be paid any lost wages. The employee is entitled to get medical treatment. The employee or the employer’s insurance carrier must still pay all medical bills that are reasonably supported by medical evidence.
Get help now by making an appointment with an experienced North Carolina Workers’ Compensation lawyer. It’s frustrating just trying to get healthy so you can get back to work or so you can, at least maximize your health situation. The last thing you want to do is worry about who is going to pay your bills. An experienced attorney understands how doctors and hospitals get paid when you are hurt on the job. For help now, call lawyer Joe Miller at 888-667-8295. You can also contact him through his online site.
Posted on Friday, September 16th, 2016 at 2:00 pm
Many workers lose their benefits because they fail to follow the proper North Carolina Workers’ Compensation laws. They may also lose their benefits if they are able to return to their pre-injury work. Employers and their insurers are always on the lookout for a way to terminate employee benefits. For this reason, injured employees should work with an experienced North Carolina work injury lawyer who understands what employers can and cannot do.
For starters, a skilled workers’ compensation lawyer will explain that the employer has to follow proper procedures. The employer cannot terminate earned benefits without the approval of the North Carolina Industrial Commission.
(Note: This is very different from Virginia Workers Compensation Procedure, wherein benefits are immediately cut off upon the mere filing by the employer or carrier of an Application to Terminate Benefits.)
The correct procedure in North Carolina is for the employer to file an Application to Suspend or Terminate Compensation. This is otherwise known as a Form 24 Motion. The Motion is completed by the employer and must include the reason(s) for the termination or suspension request, which are all set out on the form itself. The form has a place where the employee must file his or her response within 14 days after the date the Form 24 is filed (or a later time if warranted). The employee does have the right to contest the termination, and you will note that there is space provided for that response on the form itself.
A Form 24 filing should be treated as a nuclear bomb dropped on your case. If you do not spring into action quickly and create a proper response within the 14 days, that could very well be the end of your case.
The hearing on the Motion is often done informally – through a telephone conference or through an informal hearing. In the case of an informal hearing, the hearing is usually conducted within 25 days of the date of the filing. A decision should be made within 5 days of the hearing. The decision can either approve or disapprove the termination or suspension of benefits request. The decision can also hold that a formal hearing is needed.
Either side, employer or employee, can request a formal hearing after the informal hearing decision. At the formal hearing, documentary evidence is submitted and questions can be asked of the worker, a vocational rehabilitation expert, and other necessary witnesses. The formal hearing is “de novo.” – which means the hearing officer does need to consider the results of the formal hearing. In laymen’s terms, it means the formal hearing is a fresh start – a do-over.
Some of the common reasons an employer will try to cut off your benefits include:
The employer can also argue that an employee who is physically fit could find suitable work elsewhere if his/her prior job is no longer available. The argument of job availability can be defeated if the employee can show that he/she has actively looked for work in the same general geographical location and that there are no available jobs that meet the worker’s skill sets.
The employee can also argue that he/she is still physically disabled. This argument usually becomes a battle between a company doctor and the doctor that is currently treating the worker. An experienced North Carolina work injury lawyer reviews and may be able to bolster the medical evidence to help persuade the Industrial Commission that the worker is still disabled.
North Carolina does permit workers to return to work on a trial basis – to see if the worker can physically do the job.
Worker refusal to cooperate. If an employee fails to cooperate when informed that cooperation is required, the failure to cooperate can be used to terminate benefits. Some of the ways a worker can fail to cooperate are:
Similar termination and suspension reasoning applies if the worker has a total or partial disability. If the total or partial disability ends, the worker will lose his or her benefits.
If the hearing decision ultimately favors the employer, then benefits are terminated retroactive to the date the petition was filed. This means that employer is entitled to a credit for any overpayment. Termination proceedings usually terminate the wage benefits only and not the medical benefits. If the worker has not fully healed, the worker should be able to continue medical treatment through the North Carolina Worker’s Compensation system.
Don’t delay. If you get a notice of a termination or suspension proceeding, it is crucial that you speak with an experienced work injury lawyer as soon as possible. You ONLY HAVE 14 DAYS TO RESPOND TO THE MOTION. You can lose your income and even your medical benefits if you don’t respond to the termination or suspension petition. You may have strong defenses. For help now, contact Joe Miller Esq. to discuss your case and make an appointment. He can be reached at 888-667-8295. He’s been fighting for injured workers for over 25 years.
Posted on Wednesday, August 24th, 2016 at 2:00 pm
Medical impairment ratings are a way of assessing the severity of your work injury. They are used in cases where your injury is permanent as opposed to something that will heal in time. Doctors use various factors to determine the impairment rating that applies to your injury. Doctors can’t just pick a rating out of a hat. They need to justify their rating. That is why the North Carolina Industrial Commission provides guidelines for doctors. Doctors are required to use the guidelines to help them give the final rating/assessment of your injury.
An experienced North Carolina work injury lawyer is needed to help workers fight to get the correct rating. Attorney Joe Miller, who has helped thousands of injured workers for over a quarter century, understands the rating process. Click here to watch his video regarding permanency ratings. He works to let the doctor know all of your medical complaints and how they affect your ability to work. He reviews the medical reports for accuracy and thoroughness to help the doctor see your full medical problem.
One thing that is significant that should be noted: Unlike North Carolina, permanency ratings for the spine do NOT EXIST in Virginia. Ironically, in North Carolina, spinal impairment carries the highest potential number of weeks of impairment of any body part, namely, 300 weeks. The impairment ratings, which are expressed as percentage ratings, for the spine, pelvis, cervix, coccyx, and for ruptured lumbar (back) discs are as follows:
Please know that the statutes, as written, refer to the back, not the spine. When rating impairment to the spine, doctors should always refer to it as the back (percentage of the back, not percentage of the spine.)
CERVICAL SPINE FRACTURES
• Single, healed, with little or moderate anterior compression and without neurological findings
o Body = 10%
o and/or posterior elements—arch, transverse process (additional) = 5%
• Two or more vertebrae, each additional = 50% of above
• Add, for neurological
o Quadriplegia = 100% of man
o Nerve root, one arm, or both arms: Functional rating is added to cervical spine percentage.
• Anterior discectomy, with or without fusion—free of neck and arm pain—no weakness = 5%
• Postoperative—with recurrent episodes of significant cervical and arm pain associated with objective findings = 10-15%
• Posterior laminectomy—removal of ruptured disc—free of neck and arm pain—no weakness = 5%
• Postoperative—with recurrent episodes of significant cervical pain associated with objective findings = 10-15%
• THORACIC SPINE FRACTURES (Treat As CERVICAL SPINE, A) (Correction, July 8, 2016)
• THORACIC DISC (rate as Ruptured Lumbar Disc)
LUMBAR SPINE FRACTURES (including lower three dorsal vertebrae)
• One body = 10%
• and/or posterior elements (arch and/ or transverse process) = additional 5%
• (Two or more) = 50% of above
• Add for loss of motion
o Mild (0%-25% limitation) = 5%
o Moderate (25%-50% limitation) = 10%
o Marked (50% or more limitation) = 20%
• Add for neurological changes: (paraplegias are established)
o One or both legs, functional rating.
B. INVERTEBRAL DISC (rate as Ruptured Lumbar Discs)
*This Section clarified as of February 15, 2000*
What happens if you have more than one back injury?
If a claimant has two injuries to the back and has separate impairments, these ratings should be calculated separately and then combined. Do not add the percentages of impairment. A few examples follow:
FIRST EXAMPLE: 40% (A) & 20% (B)
• In this example, the first percentage of impairment, 40% (A) is subtracted from 100%.
o 100% – 40% = 60% (C)
• The second percentage of impairment 20% (B) is calculated from the remaining percentage (C), which in this case is 60%.
o 20% of 60% = 12% (D)
• The total percentage of impairment is the sum of 40% (A) plus 12% (D).
• 40% + 12% = 52% total percentage of impairment
SECOND EXAMPLE (When total exceeds 100%): 70% (A) and 40% (B)
• In this example, the first percentage of impairment 70% (A) is subtracted from 100%.
o 100% – 70% = 30% (C)
• The second percentage of impairment 40% (B) is calculated from the remaining percentage (C), which in this case is 30%.
o 40% of 30% = 12% (D)
• The total percentage of impairment is the sum of 70% (A) plus 12% (D).
• 70% + 12% = 82% total percentage of impairment
Pelvis (ate as percentage of spine unless acetabulum is involved)
• SYMPHYSIS SEPARATION = 10%
o With pelvic ring intact = 0%
o With pelvic ring displaced 1″ or more = 10%
o Healed, no deformity = 0%
o Healed, deformity and pain = 5-10%
• FRACTURED ACETABULUM-(evaluate on basis of hip disability-see hip section)
• PELVIC RING DISPLACED PLUS SACROILIAC JOINT DISPLACED (if leg shortening, add that) = 15%
• Healed, no pain = 0%
• Healed, with significant residual deformity = 10%
• Healed, no pain = 0%
• Healed, deformity and significant objective signs = 5-10%
• Excised (as above under healed fractures)
The following guide is suggested for use in rating of patients with ruptured lumbar discs from the standpoint of permanent partial impairment to the back, as recommended by the North Carolina Orthopaedic Society and the neurosurgeons of North Carolina:
• Typical episode of back and leg pain that completely recovers without neurological defect on conservative therapy = 0%
• Same as (1) with recurrent episodes of significant back pain associated with objective findings = 5-10%
• Postoperative-removal of ruptured disc-free of back and leg pain-no weakness = 5%
• Postoperative-with recurrent episodes of significant back pain associated with objective findings = 10-15%
• Postoperative-removal of ruptured disc and spinal fusion. Same as (3) = 25%
• Postoperative-removal of rupture disc and spinal fusion. Same as (4) = 25-30%
We should mention one final note on impairment ratings, which is also discussed in Joe Miller’s Video on impairment ratings. If your work injuries prevent you from returning to work, you should not really get too caught up in an analysis of the ratings. Unless you have at least two ratable body parts severely injured, the ratings are not going to be much of a factor in valuing your case. This is because you are limited to 500 weeks total TTD. The ratings cannot add to that total. So in most cases, if you are unable to return to work, the future potential TTD that you may draw is going to be far more significant than anything that a rating can provide you.
The treating doctor is often one that is on a list of doctors chosen by the employer or the employer’s insurance company. To help this doctor make as objective a decision as possible, it helps to have an experienced North Carolina work injury lawyer on your side. An experienced lawyer explains to workers that they need to inform the doctor of all their complaints. The lawyer reviews the medical reports to see if the doctor is following the North Carolina Industrial Commission guidelines. For strong legal counsel phone North Carolina Workers’ Compensation attorney Joe Miller now at 888-667-8295 . You can also complete his contact form.
Posted on Monday, August 22nd, 2016 at 2:00 pm
Here are more impairment rating guidelines for physicians to use in North Carolina work injury cases. The guidelines are meant to be a starting point. Doctors should also factor into their impairment ratings the oral examination, functional tests, diagnostic tests, and the prognosis for the injured worker.
For a deeper understanding of why the impairment ratings can impact directly the amount of benefits you deserve, watch this video by attorney Joe Miller. He has been a tough advocate for injured workers for over 25 years. His counsel includes working with workers and doctors to fight for the right rating for each worker’s unique set of physical problems.
Many of the decision points for doctors are medical terms of art. A few that can help guide the discussion are:
• Ankylosis is stiffness of the joint(s) due to abnormal adhesion and joint bone rigidity.
• Arthroplasty is an orthopedic surgical procedure performed to help restore function of the joints.
The upper extremities means the thumbs, fingers, hands, wrist, elbows, shoulders, and the arms. Doctors should use the follow guidelines to decide if the digit, hand or arm should be rated:
• If damage is limited to the digits (fingers) distal to the metacarpophalangeal joint, then the digit itself should be rated.
• If there is anatomical damage proximal to the metacarpophalangeal joint, a rating for the hand should be given, including any consideration for the digit as a percentage of the hand.
• If anatomical damage includes an area proximal to the elbow joint, the disability rating should be for the arm and include any percentage which would have otherwise been credited for the hand or digits.
“ANKYLOSIS” AND “LIMITED MOTION WITH PAIN.”
• Ankylosis of distal IP joint (in optimum position) = 35% of digit
• Ankylosis of proximal IP joint (in optimum position) = 50% of digit
• Ankylosis of metacarpal-phalangeal joint (in optimum position) = 45% of digit
• Any of the above in malposition = up to 100% of digit
• Ankylosis in optimum position = 35% of “hand”
• Ankylosis in malposition = up to 100% of “hand”
o Limited motion, mild = up to 10% of hand
o moderate = up to 20% of hand
o severe = up to 25% of hand
• Ankylosis in optimum position = 50% of arm
• Ankylosis in malposition = up to 90% (Straightened position not as disabling as marked flexion).
• Limited motion and pain
o Flexion and extension (accounts for 60% of elbow function)
20º motion in middle range = 35% of “arm” (80 to 100%)
40º motion in middle range = 30% of “arm” (70 to 100%)
120º motion in middle range = 5% of “arm” (45 to 160%)
o Pronation and Supination account for 40% of elbow function
Total loss in neutral position = 25% of hand
20º motion each way from neutral 20% of hand
60º motion each way from neural 5% of hand
Arthroplasty of elbow using prosthesis = 40% of arm
• Ankylosis in optimum position = 50% of “arm”
• Ankylosis in malposition = up to 80% of “arm”
• Resection end of clavicle (distal to coranoid and trapezoid ligaments) = 5% plus limitation
• Fingers and Metacarpals. Mal-alignment, shortening, stiffening, etc., rated according to function of finger. Express as “percent of digit” if loss is distal to MP joint; otherwise, as “percent of hand,” calculated from the sum of each involved digit, reduced to its known percent of hand.
• Carpals: Rated according to function of wrist.
• Forearm fractures
o Mal-alignment. Rated primarily on limited motion in wrist joint. Add for angulation, shortening, weakness, etc. Express as “percent of hand.” Occasionally the elbow must also be rated for loss of motion, expressed in “percent of the arm” and the total impairment calculated from the sum of the parts reduced to their relative percent of the whole.
o Excision of fractured radial head. Full motion with no pain = 10% of arm. Otherwise rate on basis of loss of motion and pain in elbow and wrist.
o Excision of distal end of ulna. Rated on basis of adjacent joint function with minimum loss of 10% of hand
• Fractures of humerus
o Mal-alignment. Rated primarily on basis of limited motion and pain in shoulder and elbow joints, and expressed in “percent of arm.” Add for angulation, shortening, weaknesses, etc., not reflected in loss of joint function.
• Fractures of shoulder girdle. Rated according to function of shoulder joint. Add for pain and weakness in non-union.
• Fracture into a joint. In general, add 10% if minimal displacement, and more if joint surface is irregular. Any time a joint is entered surgically for repair or excision of a part, the minimum impairment is to be 10%
LACERATION OF THE HAND (TENDON, NERVE, JOINT, ETC.)
• Loss of sensation (complete and noticeable) (exclusive of tendon damage)
o ½ of distal phalanx = 25% of digit
o ½ of finger = 100% of digit
• Division of flexor sublimis with full extension of finger
o Tendon only = 10% of digit
• Division of flexor profundus
o Tendon only = 75% of digit
• Division of both profundus and sublimis tendons.= 90% of digit
• Arthrodesis of distal IP joint = 35% of joint
• Arthrodesis of proximal IP joint = 50% of digit
• Arthrodesis of MP joint = 45% of digit
• Above ratings are for arthrodesis in optimum position. Add for malposition.
• “Contractures” of joints or “limited motion and pain.” Impairment determined on basis of severity as compared to arthrodesis of the joint.
PERIPHERAL NERVE INJURIES:
(Rated on basis of loss in the “hand.” If lesion is high and involves structures above biceps insertion, then loss is rated on the “arm.”)
• Ulnar nerve injury
o Complete motor and sensory = 60% of “hand”
o Complete motor and partial sensory = 50% of “hand”
o Motor only = 40% of “hand”
• Median nerve injury
o Complete motor and sensory = 90% of “hand”
o Complete motor and partial sensory = 60% of “hand”
o Motor only to thumb = 35% of “hand”
• Radial nerve injury
o Motor and sensory = 75% of “hand”
• Above estimates are given prior to any reconstruction and may be reduced considerably by reconstructive surgery.
• If contracture has occurred in the digits, additional impairment should be added.
A slight variance in an impairment rating can be a huge difference in a worker’s wallet, particularly if the injured worker has returned to alternate employment and is earning the same as pre-injury. To help you get the right rating, it is crucial that speak with a knowledgeable North Carolina injury lawyer who understands the complex medical jargon and who has worked with work injury doctors. For help now, call North Carolina Workers’ Compensation attorney Joe Miller today at 888-667-8295. You can also fill out his contact form.