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.

Virginia Workers’ Compensation – FAQs

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

Who is covered under the Virginia Workers’ Compensation Act?

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

What kinds of injuries are covered under the law?

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

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

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

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

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

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

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

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

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

Are emotional claims compensable?

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

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

When must Virginia Workers’ Compensation claims be brought.

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

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

Does the employer have any defenses?

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

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

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

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

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

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

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

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

What if I’m an independent contractor?

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

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

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

 

Speak with an Experienced Virginia Work Injury Lawyer Today

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

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.