Posted on Friday, May 19th, 2017 at 12:59 pm
Restaurant workers often suffer work-related injuries for a variety of reasons. Many service establishments are understaffed The work hours are irregular causing many workers to be tired. There’s constant commotion between the dining center and the kitchen. The quarters are typically quite tight. For many cooks and servers, getting hurt is almost a prerequisite for the job. Minor injuries can often become major injuries. Some injuries can be permanent and prevent the worker from ever working again.
It doesn’t matter if a worker works full-time or part-time as long as they are an employee. My office represents chefs, cooks, servers, bussers, dishwashers, hostesses and maitre’ d’s, delivery drivers, and anyone who works in any type of restaurant.
Restaurant workers can suffer the following types of injuries:
While there are many ways restaurant accidents can occur, these are some of the more typical causes and injuries.
Chemicals used in the restaurant profession can also cause injuries. Loud noises can cause hearing loss or damage.
Servers, food preparers, and busboys are constantly lifting and carrying plates and dishes filled to the brim with food. The constant movements can cause lifting injuries and repetitive stress injuries such as carpal tunnel syndrome. The argument that experienced North Carolina workers compensation lawyers use in repetitive stress injuries is that the repetition is covered as an occupational disease.
To be sure, these types of injuries are much more difficult to prove than a traumatic injury. That being said, North Carolina work injury lawyers can often successfully argue that a catch-all provision of the state’s workers compensation law applies. That provision holds that a worker can obtain benefits if he/she can show:
These two conditions generally apply in restaurant work. Members of the general public may clean their dishes three times a day. They don’t carry plates filled with seven servings and they don’t carry and clear items hundreds of times a day. Doctors can usually verify that the repetitive stress injury was due to the restaurant work.
Restaurants often employ delivery staff to transport meals to offices, homes, and venues where parties or celebrations are being held. Delivery personnel who get into a vehicle accident while traveling to these locations can suffer a full range of injuries such as broken bones, traumatic brain injury, and spinal damage. Drivers can also be killed. Any restaurant delivery worker who is hurt while making a delivery would be entitled to North Carolina workers’ compensation benefits.
If you are suffering minor aches or a major injury due to work at a fast-food restaurant, local diner, hotel restaurant, five-star attraction, or any type of food service establishment; you may be entitled to workers’ compensation benefits. Benefits include 2/3rds of your average weekly wage loss and payment for your medical bills. If you are permanently injured, you may be entitled to additional benefits.
North Carolina workers’ compensation lawyer Joe Miller Esq. has been fighting for the rights of injured workers for over 25 years. You may have a strong recovery coming your way. Please phone attorney Miller at (888) 694-1671 to schedule an appointment with a respected work injury lawyers.
Posted on Friday, May 19th, 2017 at 12:34 pm
Lifting heavy objects is one of the principal causes of shoulder, back and spine pain. For most every job in construction, manufacturing, warehouse work, agriculture labor, the trucking industry, or any manual labor job – heavy lifting is part of the job requirement. Lifting can include boxes, inventory, materials, equipment, furniture, and any item that helps create or sell products.
According to the Bureau of Labor Statistics, over a third of workplace injuries that required that the employee miss time from work were due to back or shoulder injuries. Lifting injuries generally occur due to overexertion and cumulative trauma. Lifting injuries can also include elbow and wrist injuries, muscle pulls and strains, and spinal cord damage,
There are many factors that increase the likelihood of lifting injuries. Employers should have practices and procedures in place to minimize these factors and help the workers.
Some objects put more stress on the worker than others. Heavy tools and machinery, large wire spools, and bundles of conduit should be handled with extreme caution.
Some of the practices and procedures employers should use to help with heavy objects are:
Bending also shifts the object being loaded away from the employee’s body making leverage more difficult and making the back and lower spine work harder. Reaching puts more strain on the shoulders.
Employers should also be aware that excessive cold or excessive heat can make lifting harder. Cold decreases muscle flexibility. Heat can cause dehydration and fatigue. The area where the lifting is taking place should be well lit. Warm clothing should be worn if the weather is cold. Workers should drink a lot of water when it’s hot to avoid dehydration.
Pain from lifting is a complicated workers’ compensation issues because North Carolina and Virginia work injury claims generally require a showing that an accident caused the injury. The defense lawyer may argue that the pain existed before you started working. For strong advocacy and experienced legal work injury advice, please phone lawyer Joe Miller. He has been getting just recoveries for injured employees in both North Carolina and Virginia for over 25 years. To make an appointment, please call us at (888) 694-1671 or complete the contact form.
Posted on Wednesday, December 7th, 2016 at 2:00 pm
Settlement rates at IC mediation conferences have historically been at or above 70%.
Under the automatic referral procedures commenced during the 1996-97 fiscal year, whenever a party files a request for hearing in a workers’ compensation claim, the Clerk’s Office sends an Order for Mediated Settlement Conference to all parties along with the Commission’s acknowledgment letter.
The only cases that are not automatically referred to mediation are claims against the state brought by prison inmates, which are excluded by law, expedited medical motions and administrative appeals.
Cases involving injured workers who are not represented by counsel are generally mediated only if all parties agree to mediate
Cases involving non-insured employers are generally mediated only if all parties agree to mediate and the Deputy Commissioner responsible for the adjudication of non-insured cases approves the parties’ request to refer such cases to mediation.
The parties have the right to select a mediator certified by the Dispute Resolution Commission on their own and may do so within the time periods specified by the ICSMC Rules. If the parties do not have a specific mediator in mind, they can select one from a list of mediators available on the Commission’s web site or from the Dispute Resolution Coordinator’s office. Our office has our ‘favorites’ who we feel do a good job for our clients and will typically select those mediators if we can, barring some major objection from the defense.
To be appointed by the Industrial Commission, a mediator must be certified by the North Carolina Dispute Resolution Commission to mediate cases in North Carolina’s Superior Courts through the court’s mediated settlement conference program. The mediator also must have a Declaration of Interest and Qualifications form on file with the Commission. The declaration must state that the mediator, if an attorney, is a member in good standing of the North Carolina State Bar; that the declarant agrees to accept and perform mediations of disputes before the Commission with reasonable frequency when called upon for the fees and at the rates of payment specified by the Commission.
After a mediation conference is scheduled to convene on a specific date, it may not be postponed unless the requesting party first notifies all other parties of the grounds for the requested postponement, or without the consent and approval of the mediator or the Dispute Resolution Coordinator.
Generally, the worker and the employer split the mediator’s fee though sometimes payment of the fee can be adjusted as part of any overall settlement.
All mediators must adhere to the Standards of Professional Conduct for Mediators adopted by the North Carolina Dispute Resolution Commission.
Motions related to the ICMSC (Industrial Commission Mediated Settlement Conference) Rules should always be addressed to the Dispute Resolution Coordinator, but all other motions should be addressed to the Industrial Commission’s Executive Secretary, unless the case has already been assigned to a Deputy Commissioner or a Full Commission panel, or the motion is otherwise subject to the Commission’s expedited medical motions procedures.
An experienced North Carolina workers’ compensation lawyer will prepare your case for mediation by making sure all the appropriate medical reports, bills, and future cost estimates are available. The attorney should also have ready any vocational reports or other documents. Additionally, the attorney will review what happens at the mediation, and what the worker’s negotiating points are in advance, and the best way for the injured worker to conduct him or herself at the mediation. The employee is not required to speak or testify at the mediation. With an experienced work injury attorney, such as Joe Miller, the mediation should run smoothly with minimal surprises.
Mediation is an attempt to resolve a dispute. If either party does not think the mediator is working towards a fair resolution, the party (including the employee) can request a full hearing. The worker, or the worker’s lawyer, may also seek to have a clearly biased mediator disqualified and request that a new fair mediator be appointed.
Generally, no. The parties should be prepared to discuss all the relevant issues at the assigned mediation. If any issues cannot be resolved, then the mediator will report that there was an impasse and the case will then proceed to a hearing before a North Carolina worker’s compensation Deputy Commissioner.
It varies. Some mediations can take a very short time – less than an hour. Usually those are the ones that do not settle. Most mediations several hours to make sure all the issues are addressed and all the details are addressed. A lot of mediation comes down to getting the math right – making sure all the future medical bills and all the lost wages are addressed. Other issues such as discounts for lump sum payments and any moneys that might be owed to other government agencies who advanced money may also need to be finalized. Once an agreement is reached, you can’t reopen the process. So, it is important to be prepared and get all the details right. That is also a big advantage in North Carolina. If an agreement is reached, the Mediator will draw it up on a special form. That form carries the weight of a Court Order. This is so that if anything should ever happen to the injured worker, the money is still required to be paid on the claim by the insurance company. That’s a major reason for hiring a North Carolina workers’ compensation lawyer who has successfully negotiated many mediations.
The mediation topics are going to vary depending on whether the claim is accepted or denied. We obviously prefer to mediate accepted claims, as we are in a stronger position. This is because the employer and insurance company have obligated themselves to pay the injured worker on an ongoing basis and cover the ongoing medical bills. Therefore, the only issues typically will relate to the degree of impairment of the worker and his or her ability to return to work, as well as future medicals.
When the claim is denied, them many more issues may come into play, just as they would at a hearing. Some common mediation topics are:
Many other issues get discussed. Your North Carolina work injury lawyers will address all the ones that apply to your situation.
Mediation is a negotiation. The employer and the employer’s insurance company will have an experienced attorney fighting for them. You need a North Carolina work injury lawyer who understands mediation and has a track-record of success, with a team behind him that knows how to put you in the best position to successfully resolve your claim at mediation. Attorney Joe Miller, Esq. has been helping injured workers for over a quarter century get justice. He will fight to get you every dollar you deserve and will only work towards a settlement when you know your medical condition. Call now at (888) 694-1671 to get answers to your questions. You can also fill out my contact form to make an appointment.
Posted on Monday, December 5th, 2016 at 2:00 pm
After the injured worker files a work injury claim and requests a hearing on the case, the North Carolina Industrial Commission will first order the parties to a mediation conference. The parties can either agree to have the mediation or disagree in which case the NICC will make the decision whether a mediation is advisable or a waste of everyone’s time.
North Carolina worker’s compensation lawyer Joe Miller will review with you the pros and cons of mediation. Many cases do settle at the mediation. Mediations can be worthwhile, even if the case doesn’t settle, because they can help narrow the issues and help get advance knowledge of what the insurance carrier for the employer thinks.
At a mediation, typically the lawyer, for the insurance carrier and employer appears alone, and the insurance adjuster is on standby on the phone. Although they are technically supposed to appear, many times, it is more expedient to waive their appearance so the mediation can take place at a time more convenient to the injured worker and his or her attorney.
The worker appears at the mediation with his/her attorney, and there is a mediator who tries to resolve the disputes. The mediator is a neutral party—typically an attorney knowledgeable in workers compensation law, selected by the parties from an approved list of qualified mediators. He or she is usually an attorney who has received training on how to mediate disputes. The mediator does not make any decisions or rulings, other than to declare an impasse if the parties cannot reach an agreement.
The mediation usually begins in a conference room at an agreed-upon location, with the mediator explaining the process. Each side then states its positions. This is usually a short statement of the facts relevant to the dispute.
Then, the two sides typically split up and go into two different rooms. The mediator go back and forth between each room, speaks to both sides to identify the issues, identity the disputes, and try to reach a solution. The mediator then gets input from one side and then walks to the other room to hear the input from the other side. Before the mediator leaves the room to head to the other, he or she will usually be given a monetary figure. On the injured worker’s side, this is called a “demand.” On the insurance company’s side, this is called an “offer.”
In this way, many disputes are resolved. The back and forth continues until hopefully, the offer and demand figures move closer and closer, until either there is a settlement or until there is an impasse. If the case cannot be resolved, then the mediator notifies the NICC and the case is set up for a hearing.
Injured workers should review their mediation case with their attorney well in advance of the mediation. Strategy and experience are crucial to a successful mediation and typically our office will schedule a “mediation preparation” call or session a week or two prior to the mediation. Well in advance of the mediation, the injured worker’s attorney will be reviewing all of the relevant medical records and will typically have issued a “demand letter” to the insurance adjuster or his or her attorney.
This is done because the employer’s and insurance company’s lawyer often needs to get authority to settle the claim. This refers to the amount of money that the insurance company is willing to authorize the attorney to offer to resolve the claim.
Accordingly, the more they know about the case beforehand, often the better. Unlike a hearing, where surprise can work in your favor because the parties cannot walk away from a hearing – in mediation, the element of surprise can be a disadvantage because the party that is surprised can just refuse to settle and demand a hearing.
On the other hand, one does not want to come to the mediation as a “beggar.” If the insurance company thinks the worker is desperate for a settlement, then they will “low ball” and not offer the true value of the claim. Accordingly, it is best to engage in at least some “poker playing” and not appear too eager to settle. An experienced North Carolina worker’s compensation attorney will therefore advise you to “keep your cards close to your chest” when engaged in a mediation setting.
Mediations are confidential. This means that statements by either side cannot be used at the hearing. There is a trade-off though. While the statements can’t be used, the words don’t evaporate. The lawyers will know what was said and use the facts in those statements to their practical advantage by engaging in discovery about anything that is learned in mediation that was not known previously.
Mediators often review the potential outcomes of a case and the odds of success for each outcome. A mediation resolution usually means some compromise. Preparation helps because an experienced lawyer will explain which compromises are minor in the long run and which compromises cost a lot of money. Both sides usually walk away from the mediation slightly unhappy. The keys to a successful compromise are to balance properly the odds of winning, the money at stake, and the needs of the injured worker.
Mediation is generally useful only when the injured worker knows the full extent of his/her injuries and their full medical prognosis. It doesn’t make sense to mediate if the worker hasn’t reached his/her full point of medical improvement. Clients who have reached full medical improvement may need to still treat to maintain their medical level. But if the patient doesn’t know if he/she can still get better, mediation is usually not advisable.
This is why usually, well before mediation, the injured workers’ attorney will write to the workers’ treating physicians to obtain their opinions on the likely course and cost of future care. These opinions will accordingly be used to help form the demand letter to the insurance company.
Injured workers should understand that the result of a full and final settlement at mediation is typically a lump sum payment. This means the worker will forfeit the right to continuing medical bill payments and continuing lost wage benefits for a one-time cash settlement. An experienced workers’ compensation lawyer will review:
Because the ability to obtain temporary total disability typically ends at 500 weeks of benefits, many times the future medical benefits become very important and a can be key issue is figuring out the value of any potential workers comp settlement. Joe Miller Esq. works with your doctors to determine your medical diagnosis, your prognosis, the type and extent of the medical treatments needed, and the expenses for each treatment going forward. Sometimes these things can be estimated, sometimes it is much more difficult. The cost of medications and medical equipment such as prosthetics will also be part of the settlement equation.
North Carolina worker’s compensation attorney Joe Miller has been helping injured workers in North Carolina and Virginia get justice. He has helped thousands of clients get the compensation they deserve. He understands the ins and outs of mediation. For help now, please call Joe Miller at (888) 694-1671 or fill out his online contact form
Posted on Monday, October 31st, 2016 at 2:00 pm
Accidents at work happen for many reasons. Employers should be aware of the various causes and take steps to try to avoid these types of workplace accidents or, at least, take preventive steps to try to reduce them. A common misconception is that the employer has to be negligent or “at fault” for the accident at work. This is false. Workers in North Carolina and Virginia do not have to prove that the employer was responsible for a workplace accident in order to have a valid workers compensation case. The worker just needs to prove a workplace accident did occur at some specific moment in time, and the injuries were caused by the workplace accident. Still, the best way employers can help their workers is to take safety precautions to prevent the accident from occurring.
Attorney Joe Miller is an experienced North Carolina and Virginia Workers’ Compensation attorney. When a common or uncommon workplace injury occurs, he has the skills and tenacity to file, negotiate, and litigate your work injury claim. He also understands that often times the type of accident is an indicator of the types of injuries that occur and the typical time frame for how long the worker will likely be out of work.
· Workplace violence. Many injuries are caused when workers get into arguments with other workers or when a worker has mental health issues and that instability leads him/her to lash out at other workers. In Virginia, if the employee was an unwitting victim of horseplay or violence, he or she still has a valid claim. On the other hand, if the worker was a willing participant, this may invalidate the claim, especially if the argument had nothing to do with the work at hand.
· Repetitive Stress or noise exposure. Many workers suffer injures due to repetitive motions such as working with computers or performing the same tasks over and over and over again in an assembly line or using hand tools. These are known as occupational disease injuries. Employees who suffer this type of stress often get injuries such as carpal tunnel syndrome, or hearing loss. Better equipment and better training, and rule enforcement can help reduce these types of injuries. Employees who suffer repetitive motion injuries, hearing loss, or some other injury they believe was caused by conditions at work need to speak to an experienced Workers’ Compensation lawyer because there are very specific things that need to be proven in order to qualify for a valid occupational disease case.
· Getting clothes or body parts entangled in machinery. Clothing, hair, fingers, shoelaces, and other items can get caught in the machinery which can then cause severe injuries including loss of a body part. Employers should make sure workers are educated about the risks of working with some types of equipment and take necessary preventative steps. Examples of safety measures include better equipment and educating the employee about proper work techniques. We often see some of the most severe injuries where employers cut corners by failing to properly maintain equipment, failing to utilize machine safety guards, deliberately disengaging safety devices, or failing to have any written, enforced rules or procedures for hazardous work duties.
· Car and truck accidents. Many workers such as construction workers or delivery drivers use vehicles for their job. Vehicle accidents can be deadly or cause serious injuries. Workers should be advised on the local driving rules and on how to properly operate the vehicles – especially trucks. Employers should have clearly defined and enforced safety rules which require the use of seatbelts at all times.
· Lack of industry standard simple safety measures. Many workers get injured because they are concentrating so hard on immediate physical tasks that they fail to see objects that can hurt them. For example, a worker may not see a door, table, while carrying a heavy load, or not see a person while driving a forklift around a corner. Also Employers should create a work environment that minimizes these types of accidents. For instance, the installation of wide-view mirrors at strategic points in a plant or factory can increase visibility of oncoming vehicles and people. Creating ergonomic environments where employees with restricted vision will have a path clear of obstacles is also helpful.
· Falling Objects. Employers should make sure that shelves aren’t overstocked and that items hanging from the roof or other high places are secure. Workers should be advised to wear helmets in certain work areas. Injuries can include brain damage, head trauma, and pain in the area where the object strikes the worker.
· Slips and Falls. This type of workplace accident is very common. Workers can slip or trip when there are loose objects lying around, the floors are slippery, there are tears in carpets, or for a variety of other reasons. Injuries can include broken bones, soft tissue injuries, bruises, concussions, and lacerations. In severe cases, a worker may suffer death or permanent injury.
· Falls from High Places. Workers who use ladders, work on roofs, or work on stairwells can slip and fall. While protective gear can help, anyone who falls from a high height is likely to suffer a long-term injury. Proper spotting and use of safety harnesses as required by OSHA is essential. We have seen too many workers get injured in this fashion when again, employers are willing to cut corners and not create or enforce strict rules in relation to working at heights.
· Overexertion. Many workplace accidents happen simply because the worker is being pushed too hard, and we often see this occur in the heat. When workers are tired, they are much more likely to trip, fall, fail to see other objects, or fail to use proper techniques, not to mention suffer heat stroke or a heart attack. Fatigue is a major cause of workplace accidents and is one of the most preventable – making sure the employee gets enough rest, and is provided with appropriate opportunities for cool-down and hydration.
The US Department of Labor, through the Occupational Safety and Health Administration (OSHA), keeps regular records of why workplace accidents occur. In addition to the causes listed above, some other causes of workplace accidents, according to OSHA, include:
· Poor communication – especially about safety issues
· Failure to provide respiratory protection
· Faulty equipment including up-to-code scaffolding equipment, bad ladders, and machines without safety guards
· Forklift malfunctions and misuse
· Electrical failures such as improper wiring
The list or reasons workplace accidents occur is virtually never-ending. Still, trying to categorize them makes it easier to work to prevent them. Some additional causes, that are human related, include:
· Taking shortcuts. Workers should never place speed over safety. Failing to take proper precautions can cause injury and death. Unfortunately, employers often encourage this behavior in the name of higher profits.
· Failure to clean up. Workplace supervisors should inspect the workplace before work starts each day to make sure the place is free of debris, that equipment functions properly, and that all loose elements such as overheard storage are secure.
· Poor training and preparation. Workers should be trained on how to use each piece of machinery or equipment. They should also be trained on everyday workplace safety issues to avoid injuries and to respond to them quickly when they do happen. There should also be written enforceable rules, and daily safety meetings prior to work beginning to address specific concerns of employee and management.
· Failure to address mental and emotional issues. Many workers have personal concerns that should be addressed. Workers who are thinking about their family members or other aspects of their personal lives are not focusing on safety. Employers should make some effort to help workers have the time to address personal issues so the worker can be safe and more productive.
If you were hurt in any type of workplace accident, do not delay. Even though the employee does not have to prove the employer was negligent, it does help a great deal to be able to show how the accident occurred. You may be leaving out a critical detail that could mean the difference between your employer covering or denying your case. For our free, quick, elite, 7-step case evaluation, phone Joe Miller Esq. at (888) 694-1671 or fill out his contact form. Attorney Miller represents injured workers in both Virginia and in North Carolina.
Posted on Monday, September 19th, 2016 at 2:00 pm
Many questions and answers about Worker’s Compensation can be found at the North Carolina Industrial Commission Website. Still, the best recommendation is that a worker review his/her case with an experienced North Carolina Workers’ compensation attorney. The attorney will be current on the relevant laws and legal issues. Mostly, the lawyer will understand many of the practical issues that can help make the difference between a substantial recovery and a minimal recovery – or no recovery at all.
Attorney Joe Miller knows the legal and practical issues. He is also a strong advocate for his clients, most of whom are in pain and worry daily about how they can manage their medical costs and daily living expenses. He has been helping injured workers in North Carolina and also in Virginia get justice for over 25 years. Along the way, he has obtained substantial settlements and awards for thousands of injured workers.
Some of the medical questions his firm advises clients about are:
The employer or the employer’s insurance carrier generally provides the employee with a list of doctors to see and pays the bills for the medical treatment. Employees, with some exceptions such as a medical emergency, treat with the company doctors. If there are good grounds, the employee (with the help of the lawyer) can petition the Industrial Commission for the right to change doctors. Before switching doctors, the employee should get the approval of the employer or, better still, approval from the North Carolina Industrial Commission.
Generally, an employee can see a chiropractor up to 20 times in North Carolina – if the employer agrees. Employers often agree because the cost for chiropractic services is less than that for pain management and orthopedic doctors. After 20 visits, the chiropractor needs additional approval from the employer.
Employees can be reimbursed in the following instances:
If the travel is more than 20 miles, employees can be reimbursed at the rate of:
In addition, the North Carolina Industrial Commission permits self-insurers to pay the employee directly for travel expenses – without approval from the Commission.
You need to keep track of and submit your mileage for any and all doctor or therapy visits over 20 miles.
Yes. The employee can get emergency treatment from a doctor or hospital. The employee must though immediately request approval from the NC Industrial Commission after the fact.
The bill, along with the medical records, should be sent certified mail, return receipt requested, to the employer, self-insured employer, or the workers’ compensation insurance carrier. The receipt should be kept as proof of mailing.
Yes. Medical bills, first reports of work injury and subsequent injury reports can be sent through the North Carolina Industrial Commission Electronic Data Interchange (EDI).
Generally, doctors should submit their medical bills to the NCIC within 75 days of treatment or service. Some extensions can apply such as when an initial work injury claim is first denied and then later approved.
Bills for Independent Medical Exams (IMEs) are submitted with a special code. The IME includes more than just the exam. It also includes a full review of medical records and a detailed medical report.
“The North Carolina Industrial Commission has adopted nearly 1100 HCPCS billing codes to describe supplies and equipment used in workers’ compensation treatment. However, the Commission has not yet incorporated into its fee schedule all of the HCPCS level codes for supplies and equipment. For example, none of the “J” codes have been adopted.” “If a custom-made orthotic or prosthetic is not contained in the Commission schedule, these items should be paid per agreement between provider and payer.”
No, they do not. Insurers and self-insurers may pay all medical bills, including hospital bills, without submitting them to the Industrial Commission for approval.
Only if an office visit is not charged.
This type claim means that there is no more than one day of lost time, no disfigurement or impairment, and no more than $2000.00 in medical expenses. Basically, it means that the employee will not be paid any lost wages. The employee is entitled to get medical treatment. The employee or the employer’s insurance carrier must still pay all medical bills that are reasonably supported by medical evidence.
Get help now by making an appointment with an experienced North Carolina Workers’ Compensation lawyer. It’s frustrating just trying to get healthy so you can get back to work or so you can, at least maximize your health situation. The last thing you want to do is worry about who is going to pay your bills. An experienced attorney understands how doctors and hospitals get paid when you are hurt on the job. For help now, call lawyer Joe Miller at 888-667-8295. You can also contact him through his online site.
Posted on Friday, September 16th, 2016 at 2:00 pm
Many workers lose their benefits because they fail to follow the proper North Carolina Workers’ Compensation laws. They may also lose their benefits if they are able to return to their pre-injury work. Employers and their insurers are always on the lookout for a way to terminate employee benefits. For this reason, injured employees should work with an experienced North Carolina work injury lawyer who understands what employers can and cannot do.
For starters, a skilled workers’ compensation lawyer will explain that the employer has to follow proper procedures. The employer cannot terminate earned benefits without the approval of the North Carolina Industrial Commission.
(Note: This is very different from Virginia Workers Compensation Procedure, wherein benefits are immediately cut off upon the mere filing by the employer or carrier of an Application to Terminate Benefits.)
The correct procedure in North Carolina is for the employer to file an Application to Suspend or Terminate Compensation. This is otherwise known as a Form 24 Motion. The Motion is completed by the employer and must include the reason(s) for the termination or suspension request, which are all set out on the form itself. The form has a place where the employee must file his or her response within 14 days after the date the Form 24 is filed (or a later time if warranted). The employee does have the right to contest the termination, and you will note that there is space provided for that response on the form itself.
A Form 24 filing should be treated as a nuclear bomb dropped on your case. If you do not spring into action quickly and create a proper response within the 14 days, that could very well be the end of your case.
The hearing on the Motion is often done informally – through a telephone conference or through an informal hearing. In the case of an informal hearing, the hearing is usually conducted within 25 days of the date of the filing. A decision should be made within 5 days of the hearing. The decision can either approve or disapprove the termination or suspension of benefits request. The decision can also hold that a formal hearing is needed.
Either side, employer or employee, can request a formal hearing after the informal hearing decision. At the formal hearing, documentary evidence is submitted and questions can be asked of the worker, a vocational rehabilitation expert, and other necessary witnesses. The formal hearing is “de novo.” – which means the hearing officer does need to consider the results of the formal hearing. In laymen’s terms, it means the formal hearing is a fresh start – a do-over.
Some of the common reasons an employer will try to cut off your benefits include:
The employer can also argue that an employee who is physically fit could find suitable work elsewhere if his/her prior job is no longer available. The argument of job availability can be defeated if the employee can show that he/she has actively looked for work in the same general geographical location and that there are no available jobs that meet the worker’s skill sets.
The employee can also argue that he/she is still physically disabled. This argument usually becomes a battle between a company doctor and the doctor that is currently treating the worker. An experienced North Carolina work injury lawyer reviews and may be able to bolster the medical evidence to help persuade the Industrial Commission that the worker is still disabled.
North Carolina does permit workers to return to work on a trial basis – to see if the worker can physically do the job.
Worker refusal to cooperate. If an employee fails to cooperate when informed that cooperation is required, the failure to cooperate can be used to terminate benefits. Some of the ways a worker can fail to cooperate are:
Similar termination and suspension reasoning applies if the worker has a total or partial disability. If the total or partial disability ends, the worker will lose his or her benefits.
If the hearing decision ultimately favors the employer, then benefits are terminated retroactive to the date the petition was filed. This means that employer is entitled to a credit for any overpayment. Termination proceedings usually terminate the wage benefits only and not the medical benefits. If the worker has not fully healed, the worker should be able to continue medical treatment through the North Carolina Worker’s Compensation system.
Don’t delay. If you get a notice of a termination or suspension proceeding, it is crucial that you speak with an experienced work injury lawyer as soon as possible. You ONLY HAVE 14 DAYS TO RESPOND TO THE MOTION. You can lose your income and even your medical benefits if you don’t respond to the termination or suspension petition. You may have strong defenses. For help now, contact Joe Miller Esq. to discuss your case and make an appointment. He can be reached at 888-667-8295. He’s been fighting for injured workers for over 25 years.
Posted on Monday, August 22nd, 2016 at 2:00 pm
Here are more impairment rating guidelines for physicians to use in North Carolina work injury cases. The guidelines are meant to be a starting point. Doctors should also factor into their impairment ratings the oral examination, functional tests, diagnostic tests, and the prognosis for the injured worker.
For a deeper understanding of why the impairment ratings can impact directly the amount of benefits you deserve, watch this video by attorney Joe Miller. He has been a tough advocate for injured workers for over 25 years. His counsel includes working with workers and doctors to fight for the right rating for each worker’s unique set of physical problems.
Many of the decision points for doctors are medical terms of art. A few that can help guide the discussion are:
• Ankylosis is stiffness of the joint(s) due to abnormal adhesion and joint bone rigidity.
• Arthroplasty is an orthopedic surgical procedure performed to help restore function of the joints.
The upper extremities means the thumbs, fingers, hands, wrist, elbows, shoulders, and the arms. Doctors should use the follow guidelines to decide if the digit, hand or arm should be rated:
• If damage is limited to the digits (fingers) distal to the metacarpophalangeal joint, then the digit itself should be rated.
• If there is anatomical damage proximal to the metacarpophalangeal joint, a rating for the hand should be given, including any consideration for the digit as a percentage of the hand.
• If anatomical damage includes an area proximal to the elbow joint, the disability rating should be for the arm and include any percentage which would have otherwise been credited for the hand or digits.
“ANKYLOSIS” AND “LIMITED MOTION WITH PAIN.”
• Ankylosis of distal IP joint (in optimum position) = 35% of digit
• Ankylosis of proximal IP joint (in optimum position) = 50% of digit
• Ankylosis of metacarpal-phalangeal joint (in optimum position) = 45% of digit
• Any of the above in malposition = up to 100% of digit
• Ankylosis in optimum position = 35% of “hand”
• Ankylosis in malposition = up to 100% of “hand”
o Limited motion, mild = up to 10% of hand
o moderate = up to 20% of hand
o severe = up to 25% of hand
• Ankylosis in optimum position = 50% of arm
• Ankylosis in malposition = up to 90% (Straightened position not as disabling as marked flexion).
• Limited motion and pain
o Flexion and extension (accounts for 60% of elbow function)
20º motion in middle range = 35% of “arm” (80 to 100%)
40º motion in middle range = 30% of “arm” (70 to 100%)
120º motion in middle range = 5% of “arm” (45 to 160%)
o Pronation and Supination account for 40% of elbow function
Total loss in neutral position = 25% of hand
20º motion each way from neutral 20% of hand
60º motion each way from neural 5% of hand
Arthroplasty of elbow using prosthesis = 40% of arm
• Ankylosis in optimum position = 50% of “arm”
• Ankylosis in malposition = up to 80% of “arm”
• Resection end of clavicle (distal to coranoid and trapezoid ligaments) = 5% plus limitation
• Fingers and Metacarpals. Mal-alignment, shortening, stiffening, etc., rated according to function of finger. Express as “percent of digit” if loss is distal to MP joint; otherwise, as “percent of hand,” calculated from the sum of each involved digit, reduced to its known percent of hand.
• Carpals: Rated according to function of wrist.
• Forearm fractures
o Mal-alignment. Rated primarily on limited motion in wrist joint. Add for angulation, shortening, weakness, etc. Express as “percent of hand.” Occasionally the elbow must also be rated for loss of motion, expressed in “percent of the arm” and the total impairment calculated from the sum of the parts reduced to their relative percent of the whole.
o Excision of fractured radial head. Full motion with no pain = 10% of arm. Otherwise rate on basis of loss of motion and pain in elbow and wrist.
o Excision of distal end of ulna. Rated on basis of adjacent joint function with minimum loss of 10% of hand
• Fractures of humerus
o Mal-alignment. Rated primarily on basis of limited motion and pain in shoulder and elbow joints, and expressed in “percent of arm.” Add for angulation, shortening, weaknesses, etc., not reflected in loss of joint function.
• Fractures of shoulder girdle. Rated according to function of shoulder joint. Add for pain and weakness in non-union.
• Fracture into a joint. In general, add 10% if minimal displacement, and more if joint surface is irregular. Any time a joint is entered surgically for repair or excision of a part, the minimum impairment is to be 10%
LACERATION OF THE HAND (TENDON, NERVE, JOINT, ETC.)
• Loss of sensation (complete and noticeable) (exclusive of tendon damage)
o ½ of distal phalanx = 25% of digit
o ½ of finger = 100% of digit
• Division of flexor sublimis with full extension of finger
o Tendon only = 10% of digit
• Division of flexor profundus
o Tendon only = 75% of digit
• Division of both profundus and sublimis tendons.= 90% of digit
• Arthrodesis of distal IP joint = 35% of joint
• Arthrodesis of proximal IP joint = 50% of digit
• Arthrodesis of MP joint = 45% of digit
• Above ratings are for arthrodesis in optimum position. Add for malposition.
• “Contractures” of joints or “limited motion and pain.” Impairment determined on basis of severity as compared to arthrodesis of the joint.
PERIPHERAL NERVE INJURIES:
(Rated on basis of loss in the “hand.” If lesion is high and involves structures above biceps insertion, then loss is rated on the “arm.”)
• Ulnar nerve injury
o Complete motor and sensory = 60% of “hand”
o Complete motor and partial sensory = 50% of “hand”
o Motor only = 40% of “hand”
• Median nerve injury
o Complete motor and sensory = 90% of “hand”
o Complete motor and partial sensory = 60% of “hand”
o Motor only to thumb = 35% of “hand”
• Radial nerve injury
o Motor and sensory = 75% of “hand”
• Above estimates are given prior to any reconstruction and may be reduced considerably by reconstructive surgery.
• If contracture has occurred in the digits, additional impairment should be added.
A slight variance in an impairment rating can be a huge difference in a worker’s wallet, particularly if the injured worker has returned to alternate employment and is earning the same as pre-injury. To help you get the right rating, it is crucial that speak with a knowledgeable North Carolina injury lawyer who understands the complex medical jargon and who has worked with work injury doctors. For help now, call North Carolina Workers’ Compensation attorney Joe Miller today at 888-667-8295. You can also fill out his contact form.
Posted on Monday, July 25th, 2016 at 11:00 am
The North Carolina Industrial Commissions provides guides to physicians for determining how to rate the impairments for specific types of injuries. The guidelines are just a starting point and not a precise definition. Doctors who are making an evaluation of the impairment rating of a worker can use the guides but they should also factor in the intangible factors such as the amount of pain the worker can endure, how weak the employee is, the dexterity of the worker and other factors.
The guides are for injuries to the upper extremities, lower extremities and the spine. In North Carolina work injury cases, the doctor examines the affected body part and then assigns an impairment rating based on how well or how poorly the worker can use that part. Oftentimes, the doctor defers to a functional capacity examination (FCE) to help determine the level of loss of function. For example, the doctor may say the worker has 20% permanent impairment in his or her right upper extremity (arm). The impairment rating is just one factor in the amount of wage loss benefit the employee will get and the length of those benefits.
The final impairment rating should be based on the physicians’ knowledge, the clinical examination of the patient, and the doctor’s experience.
Some of the more recent issues that doctors and lawyers have raised about when and how to do their impairment ratings are:
Due to some changes in the law, impairment ratings are becoming more and more important in North Carolina work injury cases.
Recent changes, for example, allow a worker to be forced to engage in ‘fake’ jobs if some residual disability prevents him from actually getting and keeping a job, and the doctor agrees it would help the injured worker, regardless of whether or not he has reached “maximum medical improvement”. This change has meant more litigation, between the employer and claimant, about the ability of the worker to perform the tasks in a given available job. The ratings, along with the analysis of the worker’s physical limitations can help or hurt the employee’s argument that he/she is not able to do the specific available job.
The rating can be given when the patient has reached maximum medical improvement even though the doctor may have already concluded that additional surgeries or additional medical treatments will not help the worker.
The North Carolina Industrial Commission guidelines for impairment ratings are not the same as the American Medical Association ratings. There is not a direct correlation between the two. Doctors, in North Carolina work injury cases, should begin with the Commission guidelines because those guidelines were designed to match the North Carolina Workers’ Compensation Statute.
The employer is obligated to pay for the first medical opinion and treatment as to any permanent partial impairment. The employee can get a second medical opinion with a doctor of his choosing only as to the rating – at the employer’s expense, after the employer obtains a rating and where the worker is dissatisfied with the impairment rating offered by the worker’s original treating doctor. The employer and insurance carrier can also request that a second medical opinion be obtained. In some cases, such as where the worker does not have legal counsel, the Commission may recommend that there be an independent medical opinion. Litigation often centers around the situation where the two medical opinions contradict each other. Workers should review the right to a second opinion with an experienced North Carolina Workers’ Compensation attorney.
For a more in-depth discussion of your rights to a second opinion under NC Workers Comp Law, Click Here.
The medical provider should understand that the following people are entitled to medical rehabilitation records, the testimony of the doctor, and the opinions of the doctor – as a matter of course:
If one side (employer or employee) has the records, then the other side should be able to get those records, without charge. In most respects, therefore, at least as to the employer and its representatives, the rules and laws on privacy and privilege as to your medical privacy do not apply.
The medical records, along with the history and patient notes, can often help determine if the work injury is compensable. For this reasons, workers should consult with their work injury lawyer before seeing their doctors. The lawyer can help explain what questions may be asked. Submission of the medical records and opinions can often mean that there is less of a need to depose the treating doctor – depending on how clear and concise the records are.
Insurance carriers often use nurse case managers to monitor the care the patient is getting, to help the employee keep scheduled appointments and take the prescribed treatments. These nurses may also help the employee return to a job they can manage. The Workers’ Compensation law does allow for these nurse case managers.
Many employees, employee counsel, and even the doctors have complained that the nurse case managers are not acting as facilitators. They are acting as advocates for the employer or insurance company. Doctors should understand that the nurses are to act only as facilitators. Nurse case managers cannot direct the worker’s treatment. Decisions with regard to the patient’s treatment always remain with the worker’s treating doctor. If the employer attempts to direct treatment in opposition to the worker’s doctor, the worker can and mostly likely should request that the Commission put a stop to such behavior.
Doctors should also understand that the nurse case manager does not have the right to be present in the examination room at all times. The patient is entitled to a private conversation with his or her doctor.
If you were hurt while working on the job, you need a lawyer who will fight for you. A strong advocate understands the legal and medical complexities of workers’ compensation Cases. Often the difference between a good result and a bad result can be the attention to detail and a full understanding of the law. To speak with a strong advocate today, please phone lawyer Joe Miller today at 888-667-8295 . You can also complete his contact form.
Posted on Friday, July 22nd, 2016 at 2:00 pm
The legal fees in North Carolina work injury cases are regulated by state law. All legal fees must be approved by the North Carolina Industrial Commission or Virginia Workers Compensation Commission. Most attorneys such as Joe Miller Esq. handle workers’ compensation cases on a contingency fee basis. This means that the injured client may only owe minimal fees in the earlier stages of the case, unless and until the case is settled. When cases settle and an Order is entered, the employer or the insurance company is ordered to pay the injured worker a specific lump sum to the attorney.
Insofar as the earlier fees, there are no ‘up front’ or retainer fees on workers comp cases.
After the attorney has performed some work on the case, or in Virginia, after obtaining an Award for the client, whether by agreement or otherwise, the Commission will typically Award a small fee such as $500.00 or $1000.00 to the attorney. The money is not taken out of the client’s money all at once, but the Comp Carrier will typically agree to pay the attorney between $25.00 and $100.00 per week out of the claimant’s comp check, taking into account the amount of each week’s check.
In North Carolina, if the attorney wins some kind of significant Motion on behalf of the client, the Industrial Commission will typically Award the attorney every 4th Comp Check (25%). Most of the time in North Carolina cases, this does not occur. The only fees ultimately paid relate to settlement.
The advantages of hiring an experienced North Carolina or Virginia work injury lawyer are many. Attorney Joe Miller has helped thousands of injured workers get strong recoveries. He has been fighting for injured workers for over 25 years. His experience and tough advocacy helps clients demand all the benefits the law allows.
The benefits include more than just obtaining your weekly compensation checks. They include payment for all types of medical bills such as hospital bills, doctor visits, medical devices and medications. Injured workers may also be entitled to vocational rehabilitation, travel expenses, and other benefits. Most importantly, a skilled lawyer fights to get the right classification of injuries for the workers. An experienced lawyer also works with your medical team when the employer tries to force the worker back to work too soon.
The main legal expense is the overall contingency fee. There are also some other expenses that the lawyer may be allowed. The common legal fees are:
The 25% or 20% fee applies to even the most experienced lawyers. So, there is no real advantage in hiring a new or less skilled lawyer to get lower fees. Because the fees are capped at these amounts, injured workers should look to hire the experienced and highly skilled lawyers for their case.
The percentage does not apply to payment for past expenses such as medical bills. These are usually not part of the contingency fee and doctors and hospitals are normally paid directly by the employer without the lawyer getting a percentage of the medical bill; however, in Virginia, (not North Carolina), in a denied claim, your attorney may enter into a separate fee agreement with your medical providers to obtain a contingency fee once the providers are paid by the workers comp insurance company. That fee will not affect your fee agreement between you and your attorney.
The Smaller Early Attorney fee Awards in Virginia. In Virginia, if the attorney is able to secure an Award for the client, either through a hearing or Agreement, the Commission will typically Award the attorney a small fee, usually between $500 and $1000.00 It will usually only be larger if the Award results in the worker receiving a large lump sum of back pay owed. In that case, the Award may equal up to 20% of the back pay Awarded. If there is no back pay Award to draw from, the fee is not taken all at once, but satisfied through weekly payments deducted from the worker’s ongoing workers comp checks. The amount paid each week to the lawyer is adjusted based on what the worker can best afford.
Medical records. While the workers’ compensation lawyer is generally not paid a percentage of the medical bill, the attorney is entitled to be reimbursed for the cost of obtaining medical records and reports. In most workers compensation cases, the workers’ compensation lawyer will advance the funds to get the medical records and reports from the doctors who are treating the injured worker. The records are basically the office notes and other doctor or facility records and the charges are usually fairly small.
The larger fees may come into play if the doctor is asked to answer important questions in writing that are critical to the worker’s claim. The report will usually say that in the doctor’s reasonable medical opinion, the worker’s diagnosis and prognosis is whatever matches the true facts of the case.
In Virginia, doctor’s depositions are usually not required, but if taken, need to occur before the hearing takes place. The same applies insofar as the attorney being reimbursed for advancing those costs.
In addition, oftentimes the defense lawyer may depose the Plaintiff in North Carolina (referred to as the Claimant in Virginia). If your attorney orders a copy of the transcript, there are costs associated with that as well.
Finally, depending on the facts of your case, there may be eyewitnesses or other witnesses whose testimony is critical to pursue or defend your claim. There are obviously costs for such transcripts as well.
The intake specialist will typically ask you precise questions about your specific situation, which questions constitute our Seven-Step Evaluation Process. Based on such items as the facts of the accident, your injuries, and other factors – the lawyer will be presented with your responses to these questions then decide whether you have a chance of success or if it is a case our firm is best suited to handle.
The consultation is also a chance for the injured employee to have his or her case reviewed by an experienced profession and it is absolutely free.
If both sides agree to pursue the workers’ compensation claim, then the lawyer will prepare a fee agreement to be signed by the lawyer and the client.
The lawyer normally files the fee agreement with the Commission. It is the same in Virginia. If the fee is reasonable, the lawyer’s fees are approved. If the Commission finds that the fees are unreasonable, the reasons are given. The lawyer then can Appeal the decision to the Full Commission.
Some of the factors the Commission will review are the time spent on the case, the amount involved, the results achieved, whether the fee is contingent of fixes, what other lawyers normally charge, the experience level of the lawyer, and the overall nature of the lawyer’s services.
Experience matters. Because lawyers take work injury cases on a contingency fee basis and because legal fees are usually capped, it makes good sense to hire an attorney such as Joe Miller who has a strong track record. If you were injured on the job, contact attorney Joe Miller for help at 888-667-8295. You can also complete the online form to schedule an appointment.