How Do Pre-existing Conditions Affect Your Workers’ Compensation Claim?

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.

An attempt to deny you benefits

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.

Additional considerations

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.

  • Multiple injuries. A more complicated scenario is if you have had multiple injuries to the same body part. Here, lost most other pre-existing cases, the medical evaluation is determinative. As with the worsening scenario, the workers’ compensation commission will review the status of your condition prior to the new workplace accident and what your status is now.
  • Prior awards. If you received a personal injury award for the accident that caused the pre-existing condition that generally should not affect your ability to collect new worker’s compensation benefits except that any statements you gave about the personal injury may be used by the employer’s insurance carrier to try to reduce your claim.

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.

  • Permanent vs. temporary injury. Another complicated area is how the pre-existing injury affects your right to have your new injury qualify as an additional permanent partial impairment. We work with your current medical doctors and other doctors we may direct you to – to determine if the new injuries worsened your condition so that your injuries are now so severe that you can’t work again or can’t do the same type of work anymore.

Get strong advocacy from a long-time workers’ compensation 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.

How are Workers’ Compensation Cases Different than Personal Injury Cases?

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:

  1. Fault of the employer. In a typical car accident case, a slip and fall case, or any other negligence case, the injured party making the claim must prove by a preponderance of the evidence that the defendant acted carelessly and that this carelessness caused the person’s injuries. It means the plaintiff must prove that the defendant did something wrong such as failing to inspect the premises, failing to make necessary repairs, failing to obey the traffic laws or relevant work safety laws, or failing in some other way.

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.

  1. Fault of the worker. Similarly, this lack of necessity to prove fault goes both ways. In a normal lawsuit such as a car accident or slip and fall case in either Virginia or North Carolina, as a litigant, even a slight amount of fault on your part will completely bar you from being successful in your case. This is known as contributory negligence. For instance, if you failed to watch where you were going and see an open an obvious condition and then fell over it, you are barred from bringing a lawsuit against those responsible for that condition.

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.

  1. The cost. In order to prove fault in lawsuit and negligence situations, an attorney is required to handle the case. Most lawyers take personal injury cases on a relatively high contingency fee basis. This means that if the injured person wins the case, the lawyer gets paid 33.33% to as much as 40% or 50% of the recovery, depending on the arrangement.

 

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.

 

  1. Before a personal injury case goes to trial, all sides are entitled to submit written questions, to make the parties and key witnesses testify at depositions. The sides often file legal motions, briefs, and counter-motions that can take weeks or months to decide. The time from the date of the accident to a trial is generally much longer in personal injury cases than the time for a worker’s compensation hearing. In addition, trials can take days or even weeks to complete. Most workers compensation hearings last a maximum of two hours.

 

  1. The risk. Trials are generally submitted to a jury of your peers. Worker’s compensation cases are heard before an experienced worker’s compensation referee. With a jury trial, the injured person doesn’t really know the jurors other than what the lawyers can reasonably guess at through the jury selection process. Most experienced workers’ compensation Deputy Commissioners understand the legal issues of the case. That difference makes personal injury cases more risky and costly.

 

  1. Damages. Another big difference is the damage amounts and types of damages you can claim in personal injury cases vs. workers compensation cases.

 

  1. Lost income. In personal injury cases, the injured party is entitled to claim 100 percent of his/her lost wages as part of damages. In workers’ compensation cases, the injured worker is entitled to 2/3rds of the average lost weekly wages subject to proof of the inability of the worker to do his/her job, find a job within his or her restrictions, or be held out of work completely by the treating doctor.

 

 

  1. Medical bills. In both work injury and personal injury cases, the injured worker is entitled to full compensation for all hospital surgeries, doctor visits, medications, and medical devices that are related to the work injury; however, in an injury case a jury awards money to pay these bills after hearing evidence of the amounts, while in a workers compensation case, there is no such evidence. There is merely a ruling from the Commissioner as to whether or not the defendants are responsible for paying all related medical bills. If the Commissioner so rules, then those bills are paid directly by the carrier. The money does not go to the injured worker.

 

  1. Pain and suffering. This is a fundamental difference between the two types of claim cases. In personal injury cases, the injured party can claim damages for the physical pain, emotional suffering, and loss of life’s pleasures that they endure. In work injury cases, employees are not entitled to compensation for any of their pain and suffering or inconvenience. This is unfortunately one of the most difficult things to explain to clients, especially where a claim is denied and a client is suffering horribly as a result of lack of proper medical care as they wait for the case to get to hearing.

 

  1. Employee status. Only employees can bring a workers’ compensation claim. Independent contractors and non-employees must bring a personal injury claim in order to get any damages. That being said, caution must be exercised before assuming that one can bring a claim against another contractor on a job. Such a contractor could be considered a ‘statutory employer.’

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.

 

  1. Most employers, unless they have less than 3 employees regularly employed in their business, are required to have workers’ compensation insurance or required to show that they can satisfactorily fund any work injury award. The same is not necessarily true in personal injury cases. Generally, vehicle drivers are required to have insurance up to certain minimal dollar amounts. In Virginia, an injured employee who worked for an employer who should have had workers compensation insurance and failed to may have access to compensation by filing a claim and obtaining access to the uninsured employer’s fund.

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.

 

  1. The verdict and decision at hearing. Unfortunately, unlike jury trials, workers compensation hearing decisions are not rendered at the same day of the hearing. Decisions by the Deputy Commissioners can come as quickly as one day to six or seven months after the actual hearing. This of course does not include the right of the defendants to Appeal the decision to the Full Commission and also the Court of Appeals.

Speak with an experienced work injury attorney now

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.

Strong Representation for Injuries due to Construction Work

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).

Types of construction workplace accidents

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:

  • Scaffolding falls and falls from high height. Many employees work on scaffolding that can be 5,10, or a 100 stories high. Others work on ladders and the top floors of buildings that are still being constructed. Falls can cause brain trauma, paralysis, and other serious injuries or death.
  • Slips, trips, and falls. It’s extremely difficult to keep floors, railways, lots and other surfaces clear of debris and spills. Construction sites are often a patchwork of hills, ditches, and holes. Accidents often happen because a construction worker falls on an uneven surface or over a tool that was left on the ground
  • Electrical accidents. These accidents can occur while employees are working with power lines, wiring, and any electrical work in progress.
  • Falling objects. Because upper levels aren’t complete; tools, equipment, lunch pail boxes, building materials, and other objects can fall and hit the worker on the head or body.
  • Crushing injuries. Workers can get stuck between a wall and forklift or pinned down between hard surfaces and work equipment or machinery.
  • Chemical exposure. Workers at construction sites can be exposed to dangerous chemical toxins which may entitle the worker to claim benefits because of an occupational illness.
  • Machinery failure. Any machine such as bulldozer, crane, nail gun, or other work equipment can cause violent injuries that can be deadly, life-threatening or permanent.
  • Vehicle accidents. Trucks are used to bring in and transport the building equipment needed for site construction. Workers who are focusing on their job are at the mercy of the truck drivers who aren’t always careful of their surroundings.
  • Dropping or shifting heavy equipment or supplies. One of the most common forms of injury is simply lifting something heavy suddenly shifts, either due to a co-worker dropping his or her end, or simply losing balance. These types of injuries typically result in back, neck or shoulder injuries.

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.

Types of construction workplace injuries

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

  • Work machinery accidents can easily cause an employee to lose an arm, leg, hand, foot, finger, or toe – either directly due to the accident or later in a hospital room. These injuries often prevent a worker from doing the same job he/she did before the accident.
  • Burns can be first, second, or third-degree burns. More serious burns often require multiple skin grafts. Even the best surgeries often leave disfiguring scars.
  • Spinal cord injuries. At best, these injuries cause acute or chronic pain. At worst, they can cause either partial or full paralysis which can leave a person a paraplegia or a quadriplegia, and often result in surgery.
  • Broken bones. Fractures typically take months to heal. During this time, the worker can’t do his or her job. Some fractures never heal quite right leaving the worker to cope with the pain and discomfort. Others frequently require external fixation with wires, screws and plates that are permanently implanted, and result in permanent partial disability to that body part.
  • Electrocution can result in a heart attack or thermal burns if there is direct contact with an electric source. Muscle, nerve, and tissue damage can be caused if electrical current passes through the worker’s body.

Other common construction work accidents include eye injuries, injuries to the extremities, and post-traumatic stress disorder

Special considerations

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.

Make the call to an experienced work injury lawyer today

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.

Are Telecommuters Entitled to Workers’ Compensation?

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.

Why telecommuting is so popular

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:

  • Half of all workers have a job where some telecommunicating makes sense and about a quarter of all workers do telecommunicate regularly
  • Over ¾ of all US workers say they would like to telecommunicate part of the week – with two to three days being the preferred amount of time
  • Many large companies are already transitioning to making teleworking viable
  • Many telecommuters are high-end salary earners
  • 7 million employees now telecommute at least half the week

How does Workers’ compensation insurance and working from home work?

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.

Did the accident happen during the course of the worker’s employment?

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.

Independent contractor vs. employee

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.

Speak with an experienced telecommuting workplace accident lawyer today

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.

FAQs about North Carolina Mediation

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

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

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

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

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

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

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

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

How are mediators selected or appointed?

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

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

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

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

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

Which party is responsible for paying the mediation fees?

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

What are the rules that govern mediators?

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

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

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

What should the worker bring to the mediation conference?

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

What if the mediator is biased?

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

Is there more than one mediation?

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

How long does the mediation take?

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

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

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

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

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

 

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

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

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

Where Workplace Accidents Happen Most Often

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

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

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

The Most Common Types of Workplace Accidents

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

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

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

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

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

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

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

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

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

Additional causes of workplace accidents

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

·       Poor communication – especially about safety issues

·       Failure to provide respiratory protection

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

·       Forklift malfunctions and misuse

·       Electrical failures such as improper wiring

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

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

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

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

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

Speak with a trusted Workers’ Compensation Today

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

Common FAQs About Medical Treatment in North Carolina Workers’ Compensation Cases

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:

Who controls the medical treatment?

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.

Chiropractic Rules

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.

Can employees be reimbursed for travel expenses for medical treatment?

Employees can be reimbursed in the following instances:

If the travel is more than 20 miles, employees can be reimbursed at the rate of:

  • 25 cents a mile for travel prior to June 1, 2000;
  • 31 cents a mile for travel between June 1, 2000 and January 17, 2006;
  • 5 cents a mile for travel between January 18 and December 31, 2006;
  • 5 cents a mile for travel between January 1 and December 31, 2007;
  • 5 cents a mile for travel between January 1 and June 30, 2008;
  • 5 cents a mile for travel between July 1 and December 31, 2008;
  • 55 cents a mile for travel during 2009;
  • 50 cents a mile for travel during 2010;
  • 51 cents a mile for travel between January 1 and June 30, 2011;
  • 5 cents a mile for travel between July 1, 2011 and December 31, 2012;
  • 5 cents a mile for travel between January 1 and December 31, 2013; 56 cents a mile for travel between January 1 and December 31, 2014;
  • 5 cents a mile for travel between January 1 and December 31, 2015;
  • 54 cents a mile for travel on or after January 1, 2016.

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.

Can an employee see a non-company doctor in case of an emergency?

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.

Where should a medical provider send the bill for payment?

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.

Can doctors send medical bills electronically?

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).

When should the medical provider submit the request for payment?

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.

How are IME bills handled?

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.

How are supplies paid?

“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.”

Do insurers and self-insurers have to send medical bills to the Industrial Commission?

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.

Can a medical provider bill for administering an intramuscular injection?

Only if an office visit is not charged.

What is a “medical only” claim?

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.

Do you have concerns about your work injury medical bills?

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.

Reasons an Employer Will Try to Terminate Employee Benefits in North Carolina

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.

Typical reasons an employer requests a termination of benefit

Some of the common reasons an employer will try to cut off your benefits include:

  • The employee’s disability has ended. An employee who is receiving temporary disability does not have the right to wage loss benefits indefinitely. If an employer can demonstrate that the employee’s work condition has improved to the point that the worker can do his/her full-time pre-injury job and that work is available for the employee, the termination request will usually be granted.

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.

  • The worker has failed to take a suitable job. A suitable job depends on the worker’s physical ability and all the availability of work in the area. When the medical evidence is clear, the task of determining whether work is available for each worker usually falls to a vocational expert. The expert reviews the worker’s job skills, education, medical history, work history, and government statistics to determine if the worker should reasonably be able to find work. A skilled lawyer contests negative findings of the vocational rehabilitation expert when warranted, where, for instance, the vocational expert failed to properly screen the job to make sure it fell within the employee’s work restrictions.

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:

    • Failure to take the advice or follow the treatment plan of the authorized treating doctor – whether the refusal is justified is determined on a case-by-case basis. We often see this if an employee routinely and repeatedly misses physical therapy appointments or refuses to accept a recommended treatment.
    • Failure to appear for an authorized independent medical exam (IME). Sometimes, a worker will be required to see a non-treating doctor so the non-treating doctor can make an independent (though not necessarily impartial) review of the patient’s medical issues.
    • Failure to work with or cooperate with the vocational rehabilitation counselor. If a vocational counselor is properly assigned to the worker, the employee must meet with the vocational rehabilitation counselor on the scheduled days and times. Repeated missing of meetings or failures to follow up on job leads or interviews can lead to a motion in this regard.
    • Refusal to accept suitable employment. If the vocational rehabilitation counselor has found a suitable job for the employee and the employee unreasonably refuses to accept that job, he or she will likely draw a Form 24 Motion to Terminate benefits.

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.

If an employer or carrier is trying to terminate or suspend your benefits via a Form 24, contact a North Carolina work injury lawyer immediately.

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.

Spine Impairment Ratings in North Carolina Workers’ Compensation Cases

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:

Cervical Spine

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.

CERVICAL DISC
• 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
• THORACIC SPINE FRACTURES (Treat As CERVICAL SPINE, A) (Correction, July 8, 2016)
• THORACIC DISC (rate as Ruptured Lumbar Disc)

Lumbar Spine
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%
• ILIUM
o With pelvic ring intact = 0%
o With pelvic ring displaced 1″ or more = 10%
• ISCHIUM
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%
Sacrum
• Healed, no pain = 0%
• Healed, with significant residual deformity = 10%
Coccyx
• Healed, no pain = 0%
• Healed, deformity and significant objective signs = 5-10%
• Excised (as above under healed fractures)

Ruptured Lumbar Discs

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.

Make the Call to a Strong North Carolina Work Injury Advocate Today

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.

Rating Guidelines for Upper Extremity Impairments in North Carolina

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.

Upper Extremities

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.”
Fingers
• 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
Wrist
• 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

Elbow
• 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
Shoulder
• 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
FRACTURES
• 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.

Speak with an Experienced North Carolina Workers Compensation Attorney Today

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.

« Previous PageNext Page »