JLARC Report on Virginia’s Workers’ Compensation System – More Findings

Posted on Tuesday, February 25th, 2020 at 9:55 am    

In addition to the findings previously discussed, the Virginia Joint Legislative Audit and Review Commission also found the following:

 

  • The cost of Virginia workers’ compensation claims. Compared to other states, insurers for Virginia workers paid comparatively high amounts so workers could treat their injuries or disease. The JLARC states that medical fee schedules which govern the amount of payment for medical services have helped somewhat, but “at least some reimbursement rates in Virginia’s medical fee schedules appear to be high compared with other states.”

 

  • Disease presumptions – firefighting and cancer. Disease presumptions are a way of helping workers prove the causal connection between their work and their illness. “A key premise of disease presumptions is that a plausible connection exists between a presumptive disease and the workers’ occupation, but evidence to prove a connection is difficult or impossible to obtain.

 

In the area of firefighting and various types of cancer, JLARC reviewed a study of available scientific evidence examining the causal connection between firefighting and 10 different cancer presumptions. The study was done by epidemiologists at Johns Hopkins University’s Bloomberg School of Public Health. The study did find some mixed results. Still, it did find enough of a causal connection to “support a plausible connection between firefighting and the cancers currently included as presumptive diseases in the Code of Virginia.”

It also found plausible connections between firefighting and colon cancer, testicular cancer, and brain cancer – three cancer types that Virginia is considering adding to the state law. The causal connection that is the weakest (but still plausible) is between firefighting and colon cancer.

 

  • Unreasonable burden on certain types of cancer claims. The JLARC found, on review of firefighter claims between 2009 and 2018, that they were not able to show their exposure to a specific carcinogen caused their cancer or were not able to meet the “presumptions’ disability requirement.” The two statutory requirements, according to the JLARC are “unreasonably burdensome and possibly counter to legislative intent.”

 

The reason it is unreasonably burdensome to document carcinogen exposure, according to researchers at John Hopkins University, is that is cost prohibitive and because of the inability of current technology to prove the exposure. “Additionally, requiring a firefighter to identify a single carcinogen that is known to cause his or her type of cancer appears counter to the purpose of the presumption, which is to relieve firefighters of the need to prove that their occupation caused the disease.”

 

The JLARC raised the following concerns about the disability requirement:
There are times when a “firefighter’s cancer was not presumed to be caused by work simply because the worker did not have a period of wage loss. Whether a firefighter loses wages because of his or her disease does not appear to be relevant to whether his or her employment caused the disease.

The JLARC found that the requirement that firefighters work 12 or more years under the state cancer presumption statute was not clear and “does not align with research on cancer among firefighters.” Researchers at John Hopkins University found cases were exposure for less than 12 years could create an increased caner risk. The 12-year requirement is also longer than that for many other states.

  • Heart disease presumption. The JLARC found that employers had a difficult but not impossible task to rebut the presumption that cardiovascular disease should be presumed under certain conditions. Virginia has a tougher rebuttal requirement for heart disease than some other states. Still, the JLARC found that workers’ compensation “is intended to favor injured workers, and presumptions are not supposed to be easy to rebut.” In 23 percent of heart disease cases decided from 2009 to 2019, the employer was able to successfully rebut the cardiovascular presumption – in those cases decided by the Virginia Workers’ Compensation Commission

 

The risk of heart disease increases the more years a worker does his/her job. There is credible scientific evidence that the risk of heart disease among public safety workers does increase as the years of service increase. Other states have a years of service requirement that public workers must meet in order to benefit from a cardiovascular disease presumption. Virginia dose not have a statutory requirement for years of service. JLARC states that a specific years of service requirement would:

    • Be in line with current epidemiological research
    • Mean that Virginia’s laws are consistent with the way many other states address the issue
    • Help “ensure that ensure that employers and workers’ compensation insurers do not pay for the costs of non-work-related diseases.”

The JLARC doesn’t currently recommend an alternative benefit program for public workers such as firefighters – which is what some states, since 2017, have done to help public safety workers get the wage benefits, medical payments, and rehabilitation expenses they deserve. 

JLARC believes that improvements to the current Virginia workers’ compensation system would be beneficial.  The report includes numerous recommendations for how to make the state workers’ compensation system address its shortcomings. JLARC recommends implementing these recommendation before considering any broader changes.

These recommendations include legislative action, executive action, and implement specific policy options. 

As a firm who represents injured workers, including first responders, we sincerely hope that the legislature in Richmond sees fit to make the recommended changes so that police and firefighters are not prevented from making claims for heart disease, cancer and other occupational diseases set forth in the law.  

Virginia workers’ compensation lawyer Joe Miller Esq. helps workers who suffer an injury due to a workplace accident. He also fights for workers who develop an occupational disease due to their workplace environment. He fights to obtain payments for long-term medical care when needed due to injuries or a disease. He also seeks to classify a worker who qualifies as having a permanent disability. He demands payment for all allowable lost wages (the percentage authorized by statute). To discuss how to prove your claim and how to verify your medical needs and wage rights, please call attorney Joe Miller, at 888-667-8295. or fill out my online contact form to schedule an appointment. 

JLARC Reports on the Health of The Virginia’s Workers’ Compensation System and on Presumptions about Occupational Diseases

Posted on Monday, February 24th, 2020 at 9:53 am    

The Joint Legislative Audit and Review Commission (JLARC) is a Virginia organization that provides oversight to numerous state agencies including the Virginia Workers’ Compensation agency. The JLARC is specifically authorized to by the Virginia Code to conduct reviews and oversight.

In December 2018, JLARC began a review of the workers’ compensation system for the state and specifically reviewed how disease presumptions are handled. The main goals of the review were to:

  • Asses how promptly workers’ compensation claims were being examined and processed
  • Determine ow fairly the claims (including that Virginia Workers’ Compensation Dispute Resolution process was working)
  • Assess how well the protocols for reducing fraud were working
  • Review how well the state’s disease presumptions were working, whether the presumptions were right, and whether the evidence to prove or rebut the claims was reasonable

The Fundamentals of the Virginia workers’ compensation program

Workers’ compensation is designed to help workers who suffer injuries while doing their job or suffer an occupational illness because of their work environment. Employees who can’t work due a workplace injury or an occupational illness are generally entitled to three benefits:

  • Payment for loss wages (also called indemnity benefits). These are generally 2/3rds of the workers average weekly wage during the time he/she can’t do their job. It can also include additional wage loss payments if a worker has a permanent partial disability in a ratable body part. 
  • Payment for lifetime medical expenses related to the work injury.  This should include payment for hospital bills, doctor visits, treatment with physical therapists and other types of therapists, medical devices such as wheelchairs and prosthetics, and the cost of medications.
  • Vocational rehabilitation Some workers who can’t do their old job may be entitled to counseling and in some cases, payment for schooling so that they can obtain the skills and education to perform work in a different field that is within their permanent physical restrictions stemming from the work accident. That being said, most of the time, this is really not viewed as a benefit, but a way for the workers comp insurance carrier to reduce their obligation to pay benefits. 

Occupational illnesses and presumptions

Often a key to winning an occupational illness or disease case is determining whether the worker’s illness was due to workplace conditions and not conditions that he or she may have been exposed to outside of the hazardous work environment. Virginia law assumes that some jobs are so inherently dangerous that there is a presumption that if the worker did a certain job, that specific illnesses such as cancer are presumed to be the consequence of the job if they end up with that disease. A presumption that there is a relationship between a disease and a job makes it easier for the employee to be awarded his/her workers’ compensation benefits. Workers can still prove their illness was job-related if there is no presumption – but more evidence is required. Employers can rebut presumptions if they have compelling evidence that the workplace environment did not cause the occupational illness.

Some of the findings of the JLARC

The oversight review made the following findings:

  • Timeliness and fairness. Most claims are managed in a timely and fair manner. Disputes between workers and employers also involve the attorneys for each side. They also include the insurance companies for the employers, administrative staff to process claims, and those people involved in making the decisions on the merits of the dispute. JLARC found that most participants were reasonably satisfied with the timeliness and fairness of how the claims were handled. One noted exception was the timeliness of hearings in the Fairfax, Virginia office. Another exception was that the timeliness of when opinions by the Deputy Commissioners were issued could be improved.

JLARC noted that delays do happen while the insurers for the employers are reviewing whether the worker’s claim is compensable. For example, the JLARC stated that, for firefighters, insurance company delays in review their claims, was the second leading challenge.  Virginia is one of only several states that doesn’t have a statutory frame for when insurers must make a decision about compensability. 

  • Worker misunderstanding of the process. Another finding was that many workers do not have the information or help they need to file claims or to understand their rights to dispute denials of their claims made by insurers. It can be difficult to understand how to access and use Virginia’s workers’ compensation system.  Some of the key concerns regarding the Virginia Workers’ Compensation system included:
    • A poor website. The information is too scattered across the site;
    • The documentation about the process is “not well organized within each document,” and is unclear and incomplete.
    • Employers and the insurance companies for the employers don’t routinely give the workers the information they need to contest initial compensatory decisions.

This is one of our “pet peeves” as well here at The Work Injury Center. We are constantly receiving calls from potential clients who have essentially ruined their own cases due to this lack of information available to injured workers in the Commonwealth relating to Workers Compensation. 

It is very frustrating to us when we have to reject what might have been a perfectly compensable claim because the injured worker took certain unadvisable steps before checking with a worker’s compensation attorney or seeking out information on the subject.  

This is why we are constantly uploading new videos and producing articles such as this one to attempt to educate the public as much as possible about the Workers Compensation Law and process. It is our attempt to make up for the lack of information provided by the Virginia Workers Compensation Commission, as cited by JLARC. 

As a practical matter, employees should consult with experienced workers compensation Virginia lawyers to understand their rights, to process their claims correctly, and to get the help they need with each phase of the workers’ compensation process. 

Again, we strongly encourage anyone with any questions relating to workers compensation to also explore our website. We also have a wealth of videos both on our website as well as on our YouTube Channel relating to many, many issues facing injured workers. I do my best to “break it down” for you. If you’ve been hurt in an accident, we urge you to arm yourself with the extensive knowledge that we have made available to you. 

JLARC’s report stated that more than 200 firefighters who had a job-related injury or illness were not aware that they had the basic right to contest an insurance company denial of their claim to the Virginia Workers’ Compensation Commission. The remedy for that is to make sure you file a claim and get to a Hearing.  Many firefighters also stated that they thought reporting their diagnosis of heart disease or cancer to their employer was all that was required – when they had to take the additional step of filing a formal claim with VWC. The failure to file the claim can result in a full denial of benefits if a timely claim isn’t filed.

We see this as one of the most common misconceptions when folks call our office about a work injury. The most common statement is “I’m pretty sure my employer filed my claim for me.” 

We cannot repeat this enough: There is no such thing as your employer filing your claim for you.  The ONLY way to protect your rights is to file a CLAIM FORM (previously called a Claim for Benefits) with the Virginia Workers Compensation Commission within two years of the date of your work accident. 

 

  • Repetitive stress injuries. Virginia is the only state that does “not provide a remedy through the workers’ compensation system for injuries due to repetitive work activities, such as lifting boxes over several weeks (also known as “cumulative trauma injuries”).” This means that workers who develop bursitis, tendinitis, back pain, neck pain, and other injuries due to repetitive motions must pay for their medical care out of their own pocket even though their injuries are directly attributable to their work. JLARC states that these cumulative trauma injuries are not a driver of increased workers’ compensation premiums (based on data from other states) in contrast to the claims by Virginia employers that repetitive stress injuries are too expensive.
  • Exception: Carpal Tunnel Syndrome.  CTS is the only repetitive stress exception and may be claimed as an occupational disease if all of the proof lines up that the condition was caused by the employee’s work and nothing else. 

 

Virginia work injury attorney Joe Miller Esq. has been helping injured workers get the recoveries they deserve for more than 30 years. He’s helped thousands of workers in both the private and public sectors get strong results. He’ll guide you through process, help your file your claim, contest all efforts by the insurance company to deny or reduce your claim, and negotiate fair settlements when possible. To speak with Joe Miller, Esq., an experienced Virginia workers’ compensation lawyer, call me at 888-667-8295. or fill out my online contact form.

Common Workers’ Compensation Definitions

Posted on Thursday, January 30th, 2020 at 12:39 pm    

Here’s a list of many of the worker’s compensation terms used in North Carolina and Virginia work Injury cases. The definitions may vary Depending on the state and the Issues at Hand.

  • Accommodation. This is something to be wary of. When an employee has been released to light duty and the employer “accommodates” the employee’s light duty restrictions imposed by his or her doctor, the employee’s radar should be up. Accommodation is often a pathway to the light duty getting fired for cause for some trumped up minor infraction. While one cannot refuse a reasonable accommodation, injured workers returning to “made up” jobs at their workplace should be very careful how they behave when returning to work. 
  • Adjuster. The agent for the insurance carrier who reviews your claim and negotiates settlements. Employees should let an experienced workers’ compensation lawyer negotiate their work injury claim with the adjuster. 
  • Authorized treating physician. (ATP) The doctor who is the primary healthcare provider for the injured worker and has been authorized by the workers compensation insurance company to treat the injured worker. 
  • Carrier. The insurance company that pays and administers the workers’ compensation claim on behalf of the employer for the benefit of the employee.
  • Claimant. In Virginia, the employee who was hurt or suffered an occupational illness and is requesting medical and wage benefits. 
  • CMS. The Center for Medicare and Medicaid Services. They usually need to be consulted and the Medicare Set Aside must be approved by them if the employee and employer are going to enter into a settlement if the claimant is on Medicare or is likely to be on Medicare soon.
  • Compensable. This means that the worker was an employee and that his/her injuries were due to workplace employment. Workers need to show their claim has merit, is compensable, before any medical bills or wage losses will be paid.
  • Contested claim. This is when the employer denies liability for some reason such as that the worker is not an employee, the injuries were not due to work, or for some other reason.
  • Date of injury. This is the date the workplace accident occurred. Employees generally must notify their employer on the date the workplace accident occurred that they have suffered an injury. Any questions of law are based on the date of injury.
  • First report of injury. This is a form that the employee completes and submits to the state workers’ compensation commission notifying the commission that a worker was injured. A first report of injury is not the same as a legal claim. Employees should not assume that their claim will be proceed if an injury report is filed – even if the carrier makes payment. Employees need to file a proper legal claim with the help of an experienced workers’ compensation lawyer
  • Functional capacity exam (FCE). A test that examines a worker’s physical abilities to perform certain tasks – to assess the type of work the employee can and can’t do. A separate portion of the test may also assist the authorized treating physician in providing a permanent  impairment rating for any injured body parts such as the extremities. 
  • Impairment rating. After a worker reaches the point of maximum medical improvement, he/she should be examined to determine whether he/she has a partial or permanent impairment in particular body parts that are capable of being rated via the FCE and the authorized treating physician’s opinion. In Virginia this typically includes the extremities but excludes the back and neck. In North Carolina, the back and neck are ratable. 
  • Indemnity. Refers to the portion of workers comp benefits that constitute the weekly checks paid by the workers compensation carrier to the injured worker while he or she is physically unable to work, or must work at reduced capacity in a lower-paying job due to his or her injuries.  
  • Independent Medical Exam (IME). Essentially this is a second opinion usually ordered by the defense, to determine whether the treating physician’s assessment of the employee’s health and ability to return to work are accurate, or if any recommended treatment such as surgery is appropriate. In Virginia, an employee can go to his or her doctor of choice for a second opinion provided he or she pays for it; however, there is no formal procedure available in Virginia to obtain a second opinion or IME.  Virginia. In North Carolina, there is, in fact, such a procedure in place. In North Carolina an IME can be obtained at the workers compensation insurance company’s expense. The IME can be used by the employee to help show that that the employee should be entitled to additional treatment or that he or she is incapable of returning to work. 
  • Light duty. Many workers can’t return to their old job because their doctor places physical limitations on what they can do – such as that the worker shouldn’t lift more than 20 pounds during work. Light duty is less strenuous work. The worker may do light duty work as a transition while he/she is healing to their old type of work. Light duty may ultimately be the only type of work an employee can do due to his/her injuries. 
  • Marketing Your Residual Capacity to Work. If you are not under a current, ongoing Award in a Virginia Case, and if you have been put on light duty by your treating physician, then you need to do this, which is looking for work after light duty. Also, pretty much any North Carolina injured worker should look for work if he or she has been placed on light duty. If you are unable to find work within your restrictions, then this is one of the methods by which you may prove that you are entitled to ongoing temporary total disability benefits. 
  • Misclassification. Often, employers will try to classify a worker as an independent contractor so that the worker won’t be eligible for workers’ compensation benefits. A misclassification occurs when the independent contractor should be classified as an employee and thus is eligible for work injury benefits.
  • Maximum medical improvement (MMI). This is the stage when the treating physician determines that additional medical treatment won’t improve the employee’s health. It does not mean medical treatments should end since many workers need health treatments such as physical therapy to ensure their health doesn’t worsen. After an employee reaches MMI, he/she can be assessed for a partial or permanent disability. Workers generally should not consider settling their case until their health has reached the MMI state.
  • Medicare Set Aside. (MSA)This is a set of figures used to cover the cost of future medical expenses factoring in the amount that Medicare will pay for the worker’s medical bills due to his/her eligibility for Medicare. If the injured worker currently qualifies for Medicare, it is a necessary part of the settlement to have any such amounts approved by Medicare first. Even if the injured worker is not currently eligible, if there is any anticipation of application to Social Security Disability, then it would be wise for the injured worker to set aside monies in a separately maintained account to cover work-related injury treatment as part of any settlement. 
  • Nurse case manager. (NCM) A health professions hired by the employer to, in theory, helps the employee manage and keep his/her appointments. Often, the employer is mainly interested in having the nurse case manager find a reason to encourage the treating physician to return the employee back to full duty, thereby terminating benefits. Some unscrupulous NCM’s will also pull dirty tricks like giving last minute notifications of appointments, or sending letters that will not arrive in time regarding appointments so a case may be made for noncompliance with treatment requirements—another path to termination of benefits. 
  • Permanent and total disability.  If found, this will entitle the injured worker not only to the maximum of 500 weeks, but lifetime weekly compensation benefits beyond the 500 weeks due to complete and total loss of any capacity to work. In Virginia and North Carolina, it is defined by a set of very specific injuries in order to be qualified for permanent and total disability. Typically one may not apply for permanent and total disability until the injured worker approaches the end of the 500 week maximum of his or her receipt of benefits. 
  • Permanent partial disability or impairment (PPD or PPI). This is the assessment of how severe workers’ injuries are after he/she has reached MMI and what statutory work loss benefits should be paid. Usually expressed as a rating. 
  • Temporary Partial Disability. (TPD) An injured worker would be entitled to TPD if he or she has physical restrictions due to the work injury, and is able to return to work at a lower-paying job then the pre-injury job. In such case, the injured worker is entitled to 2/3rds of the difference between the pre-injury and light job wage. 
  • Temporary total disability (TTD). This is essentially the period when the worker is unable to work in any capacity and is receiving medical care and weekly checks from the workers compensation insurance company.  While a worker is on temporary total disability, he/she usually receives 2/3rds of his/her lost wages up to a statutory caps/limits of 500 weeks. This type of disability is classified as a temporary total disability (TTD) if the worker can’t do any work; however, in Virginia, an injured worker under an ongoing Award who is on light duty and is not being accommodated by the employer would also be entitled to TTD. Usually the same holds true in North Carolina under an accepted claim; however, a light duty employee should always be marketing his or her residual capacity to some extent in North Carolina, even on an accepted claim. 
  • Settlement. Also known as a full and final settlement sometimes referred to as a “clincher” in North Carolina. A resolution of the employee’s overall claim usually occurs only after the worker has reached the MMI stage. Typically, the worker will receive a lump-sum payment to cover future medical bills and any future indemnity benefits that the worker would likely be entitled to if the claim was not settled. Adjustments may be made to the total amount due to reflect that the worker is getting the funds now and should be able to earn interest on the settlement amount.  (Present Value). 

The main thing to remember insofar as settlements in workers compensation are concerned is that all settlements are voluntary on the part of the workers compensation insurance company. Unlike Court cases, where a verdict can be obtained, in most cases, if the workers compensation insurance company does not want to settle, then they do not have to settle. If the carrier is paying what it has been Ordered to pay by the Commission, then that is all it is required to do. A skilled workers compensation lawyer can often help employees get the best settlement for their types of injuries and medical situation, but there are never any guarantees. Any attorney who says he or she can guarantee a settlement is lying. 

North Carolina and Virginia work injury attorney Joe Miller Esq. understands the legal issues, understands how to negotiate with insurance companies, and understands how to review your medical conditions. He’s been a strong advocate for injured employees for more than 30 years. He’ll help you file and pursue your workers’ compensation claim. To schedule an appointment with attorney Joe Miller, call 888-667-8295. or fill out our online contact form

Retail Store Employee Injuries

Posted on Thursday, January 30th, 2020 at 12:37 pm    

Retail employees generally include people who sell clothing, food, appliances, home goods, cars, and other vehicles. Retail workers include employees who work for department stores, restaurant chains, supermarkets, small boutique stores, stores in shopping malls, and any place where goods are sold. 

Many retail workers are on their feet for a good portion of the day – which can place strains on their back, neck and spine. Some of the tasks that retail workers perform that can cause a direct injury include

  • Stocking shelves and moving stock in general. Workers need to be able to lift, carry, and remove goods from the shelves. Often, they need the help of small ladders and other devices. The shelves need to be constantly replenished. The goods also need to be checked for expiration dates so that stale products aren’t sold to customers. 
  • Marketing the products. Retail workers are often required to create and put up signs and office displays to promote their products to customers.
  • Customer assistance. This can include helping the customer select the right car or product. It can include showing the customer where the products are in the store. It includes explaining and assisting with the self-service parts of the store.
  • Checking out products. The cashiers need to constantly pick up and move the goods and check them for their prices. Baggers and clerks need to place the items sold in bags and boxes so the customer can take the products to the car. Some retail workers also help customers take the items they purchased to their car

Additional retail duties can include price checks, opening and closing the store, cleaning up messes, and removing and replacing items that fell from the shelves.

How retail workers may injure themselves

There are many tasks that retail workers perform that can cause injuries that are severe enough that the worker needs to take significant time off from work to treat. Some of the ways retail workers may injure themselves are:

  • Slips, trips, and falls. Workers can easily fall if the surfaces are wet, tiles are broken, carpets are torn, merchandise has fallen, the parking lots aren’t properly maintained, or for other reasons. Retail workers are often focused on helping customers and not on constantly examining the floors and surfaces they walk on.
  • Lifting heavy objects. Many commercial products come in heavy boxes which have to be moved to the correct aisle and then lifted into place. Stock workers and other retail employees often need to work with carts and other devices to move the products into place. If the objects are especially heavy such as washing machines and dryers, the workers may even need to use a forklift. It’s easy for a worker to wrench his or her back or pull a muscle while lifting and moving the merchandise.
  • Machine and tool related injuries. Retail workers who work with power tools, kitchen cutting products, tools to open and remove merchandise, tools to ensure car engines are in working order, hot stoves, and other equipment can and do suffer injuries while using these machines. The injuries normally correspond to the risks associated with the machines.
  • Exposure to chemicals. Retail workers who sell gasoline, cleaning products, gardening products, and other products may suffer injuries due to the exposure to the chemicals in the products. The exposure can cause skin rashes and burning of the skin. Workers who breathe in the chemicals may suffer lung and other respiratory diseases.
  • Repetitive stress injuries. Many retail workers perform the same mechanical tasks day in and day out. Waitresses carry trays, often on their arms. Cashiers use the same motions to ring up checks every day. Many retail workers in this day and age enter customer information and product information into a computer on a daily basis. Repetitive motion injuries can cause carpal tunnel syndrome, bursitis, and other disorders that require that the employee take time off from work.
  • Forklift and pallet jack injuries. Workers often use these devices to move large boxes and machines. The use of these devices can cause serious injuries when they pin or crush the worker or another employee. If the devices fall or fail to operate properly, they can also cause serious injuries.
  • Cuts and bruises. Handling any sharp object such as a box cutter can require stitches and other types of medical care.
  • Job-related stress. Daily dealing with irate customers, being forced to meet sales quotas, caustic co-workers and other workplace demands can cause psychological harm to an employee requiring the worker to treat with a psychologist or another mental health professional; however, these kinds of effects are from one’s job are not compensable under workers compensation. That being said, if one is suffering from harassment to such a degree that it constitutes a hostile work environment, depending on the facts of your situation, an employment or labor attorney may be able to assist you. 
  • Loud noises. Some retail jobs take place in places where machines are used that make a lot of noise or where music and other devices can affect a worker’s hearing; however, gradually incurred hearing loss is not compensable in Virginia. Only traumatic hearing loss from an accident is compensable. 
  • Being on one’s feet for a long period of time. Employers should generally give their retail workers sufficient rest breaks so they can get off their feet. Standing for too long can cause back, neck, and spinal pain. It can lead to heart attacks and heart disease. It can cause foot pain which can require time off from work. 

The important thing for retail workers to understand is that there is no requirement to prove fault in a workers’ compensation case. The main requirements are that the retail worker is an employee and that the workplace accident happened during work or due to work. In a retail environment, there is unlikely to be anything that would be compensable that would be classed as an occupational disease. It would likely have to be the result of an injury by accident

Once a retail worker proves his/her right to benefits with the help of a skilled workers’ compensation lawyer, the worker can demand:

  • Payment of all reasonable and necessary medical expenses
  • Payment of lost wages (typically at the rate of 2/3rds of his or her average weekly wage rate) while unable to work for up to 500 weeks;
  • Payment of permanent partial impairment loss in a permanently damaged body part once the injured worker reaches maximum medical impairment.

North Carolina and Virginia workers’ compensation Lawyer Joe Miller Esq. has helped thousands of workers get a just recovery. He workers with your doctors to understand your medical condition. He fights the insurance companies when they try to deny your claim or cut off your benefits. To discuss your work injury claim, call attorney Joe Miller at 888-667-8295. or fill out my online contact form

Occupational Disease for First Responders

Posted on Wednesday, January 8th, 2020 at 9:52 am    

OCCUPATIONAL DISEASE: PRESUMPTIONS FOR FIREFIGHTERS, POLICE, AND OTHER FIRST RESPONDERS

Normally, injuries and accidents that occur under Virginia Workers Compensation must consist of a specific traumatic event that caused a sudden anatomical change in the body to the injured worker; however, there are a whole class of cases that do not follow that approach and these are cases which involve an occupational disease.  Sometimes these can be hard to prove, but the Virginia legislature has made it easier for police, firefighters, sheriffs, and other first responders and public law enforcement officers to prove occupational disease claims. 

Without getting into all the specifics of proving an occupational disease, which is covered in other articles, suffice it to say that an occupational disease means a disease arising out of, and in the course of employment, but not including an ordinary disease of life to which the public is equally exposed. 

What this definition means is the oftentimes, even though someone may be suffering from a disease that was directly caused by exposure for instance, to hazardous chemicals on their job, if it is the kind of disease not specifically recognized as arising directly out of the employment, and therefore an ordinary disease that the public may also get, such as a form of cancer, then the disease is not going to be recognized as an occupational disease.  It will be considered an ordinary disease of life and the standards of proof for that are much higher than for a regular occupational disease. 

The good news is that the Virginia legislature carved out an exception to this rule for police, firefighters, sheriffs, and other first responders and public law enforcement officers. 

What this law says is that if you are a firefighter, police officer, or other first responder, then for certain diseases, such as respiratory diseases, hypertension or heart diseases, and certain types of cancers, it is to be presumed that the disease in question is in fact an occupational disease suffered in the line of duty.   

Now this presumption can be overcome by the defense if, for instance, they can prove that the disease came about for exposure to something completely unrelated to work, and that the first responder was not in a position to be exposed to anything that might give rise to the disease in question. 

Unfortunately, insofar as firefighters are concerned, the law as it stands contains some barriers and defects that make it hard to prove some occupational diseases. 

The statute lists a number of presumptions for cancers that firefighters and other first responders are entitled to and they are for the cancers of leukemia, pancreatic, prostate, rectal, throat, ovarian, or breast cancer.  The problem is that the law as it stands now also requires that the International Agency for Research on Cancer (IARC) recite in their listings that whatever the injured worker was exposed or came into contact with to during their job actually causes, or may cause the type of cancer the injured worker is suffering from.   They also require that the first responder with one of these types of cancer have completed 12 years of continuous service. 

The good news is that according to the case law, the injured worker need only prove one instance of exposure to the toxic chemical during his or her career that may cause cancer as identified by IARC. 

The bad news is that at least one form of cancer on the list specifically has no known cause and that is pancreatic cancer

Pancreatic cancer is one of the few cancers where medical science currently simply has no idea as to the cause.  Apparently, the only thing that might contribute to it is cigarette smoke. 

Because of this, many agree that the law as currently written, in this regard, for lack of a better word, is ridiculous. The current law in Virginia actually says that pancreatic cancer is one of the presumptive types of cancer that is considered to be contracted in the line of duty, but at the same time, the law also says you have to prove there was exposure to something that might cause it, and as we just said, nothing is known to do that except possibly cigarette smoke. So basically, the Legislature has drafted a law that—at least with respect to pancreatic cancer—is completely useless. 

Moreover, a State Review Board has also noted that the law is lacking as it currently stands. The Joint Legislative Review Commission (JLARC) Audit Report of the Virginia Workers Compensation Commission that was released on Monday, December 17, 2019 says on page 3, in the headline: “Requirements to establish cancer presumptions are unreasonably burdensome and not supported by science.” 

The JLARC specifically talks about firefighter benefits and how many claims are denied because the firefighter failed to prove proper exposure to the carcinogen that caused his or her type of cancer.  The JLARC then suggests that all an injured firefighter should have to prove is that he or she fought fires and was exposed to smoke. They say that should be sufficient, given the toxic soup of chemicals that any scientist and industrial hygienist knows is released by any house or industrial fire. I certainly could not agree more. 

We rely on our first responders to protect us. They put their lives on the line for us every day. Can we not make it as easy as possible for them to make a claim in the event they suffer because of the years of dedicated service to this cause? 

Hopefully, plans are afoot in Richmond to change these laws so this never happens to any firefighters or other first responders who in the future develop cancer or any of the other diseases given a presumption in the law. 

In the meantime, if you have been advised that you are suffering from an occupational disease, please do not wait to contact a worker’s compensation lawyer to assist you. You only have two years from the date that the diagnosis was first communicated to you by a physician to file a claim form with the Virginia Workers Compensation Commission. 

If you have been exposed to toxic chemicals in your line of work, and your doctor supports that your disease came from that exposure, and you’re a member of a Union, know that your Union should be able to steer you in the direction of an expert such as an industrial hygienist, or other such expert, who can assist in proving your exposure to the relevant chemicals in your claim. You may very well need his or her testimony in order to win. 

Joe Miller has been representing victims of on-the-job injuries and occupational disease for over 30 years. If you or a loved one has been injured on the job or suffered an occupational disease, please do not hesitate to call us toll free at 888-667-8295. or complete our online contact form 

 

Truck Driver Injuries and Workers’ Compensation

Posted on Saturday, January 4th, 2020 at 3:49 pm    

Truck drivers are prone to many different types of injuries due to being on the road for long stretches of time and the heaviness of the semi, rig, or whatever commercial truck they’re driving. Often drivers are asked to help out with loading and unloading trucks. Many drivers are involved in truck driving accidents. According to the Insurance Institute for Highway Safety, 4,136 people died in trucking accidents in 2018

The Federal Motor Carrier Safety Administration regulates the hours truck drivers can be on the road because of concerns that tired drivers are likely to get into a truck accident. Drivers who carry any type of cargo must follow the following regulations:

  • Drivers can drive a maximum of 11 hours after 10 hours of not driving
  • Truck drivers “may not drive beyond the 14th consecutive hour after coming on duty, following 10 consecutive hours off duty. Off-duty time does not extend the 14-hour period.”
  • Drivers must take rest breaks of at least 30 minutes if they have driven 8 hours or more since their last off-duty or sleeper berth period.
  • Truck drivers cannot drive more than 60 hours during 7 consecutive days and cannot drive more than 70 hours during 8 consecutive days. “A driver may restart a 7/8 consecutive day period after taking 34 or more consecutive hours off duty.”
  • “Drivers using the sleeper berth provision must take at least 8 consecutive hours in the sleeper berth, plus a separate 2 consecutive hours either in the sleeper berth, off duty, or any combination of the two.”

Causes of truck driver workplace injuries

Truck drivers need to do more than just drive long distances. Some other truck safety concerns include:

  • They should follow the traffic laws for each state that they drive in. Accidents on the highway can occur if the driver or any other driver speeds, drives while distracted, takes a turn too fast, fails to merge properly, runs through a stop sign or red light, or for many other traffic violations. Truck accidents can:
    • Cause a truck to rollover
    • Cause a truck to jackknife
    • Cause a truck to veer off the highway
    • Result in a truck colliding with other vehicles
    • Result in an accident for many other reasons
  • Load their cargo securely or work with the companies shipping the goods to load the cargo securely. This can include lifting, pulling, carrying, and moving cargo which can easily cause injuries. Workers also need to exert energy and force to properly tie down their cargo.
  • Unload the cargo safely. Just as loading cargo can cause workplace injuries, unloading the cargo can cause all types of muscle pulls, aches, and pains. Workers who load and unload cargo can also fall or can be pinned by equipment such as forklifts while helping out with the loads
  • Truck drivers may also be asked to use ropes, chains, and blocks to secure the loads and to place tarps and covers over the loads. During these tasks truck drivers can easily strain and pull muscles, develop cuts and bruises, wrench their backs, and fall.
  • Inspections. Trucks need to be inspected before each delivery for any signs of trouble such as brakes that won’t work, windshield wipers that need replacement, tires than need replacement or need to be pumped with air, and many other tasks. These inspections can easily cause a variety of truck-related injuries. Normally, workers need to conduct similar inspections after they’ve delivered their loads.

Trucks with heavy loads or shifting loads can be especially hard to control

Truck drivers are most prone to musculoskeletal disorders of the back, neck, and shoulders. They are prone to falls which can cause broken bones and soft tissue injuries. Some falls can result in spinal cord damage or a traumatic brain injury. Truck drivers who are hurt in a motor vehicle accident can die, suffer permanent disabling injuries, including but not limited to severe burns, as well as other injuries that can take a long time to heal. Truck drivers who work with forklifts, especially the Moffett types that are carried on the back of a flat-bed truck, run the risk of a loss of limb and many other serious injuries.

Workers’ compensation benefits for truck drivers

Truck drivers who are injured on the job are entitled to medical payments for any necessary surgeries, doctor visits, physical and occupational therapy, psychological care if needed, the cost of medications, and the expense of any medical devices.

Injured workers in North Carolina and in Virginia are generally entitled to 2/3rds of their lost wages until they are released to return to work by their doctor. This can happen either before or after an injured worker reaches Maximum Medical Improvement (MMI). Workers who reach MMI who have not returned to work will be evaluated to:

  • See if they can return to work with any restrictions – such as doing returning to work but not lifting more than 10 or 20 pounds, or refraining from ladder climbing. This is typically accomplished through a Functional Capacity Examination. (FCE)
  • Determine if they have a permanent partial impairment. If so, the worker is assigned an impairment rating related to the body part or parts that were injured. If the employee returns to work, the rating is used to determine if the employee may be entitled to additional money based on the percentage rating of impairment for those body parts. 

Employee versus Independent contractor

A common issue in truck driving cases is whether the driver was an employee or an independent contractor. Generally, only employees are entitled to workers’ compensation benefits. As a general rule, the test in determining the status of a worker is whether the company or person that hired the worker had control over how and when the driver performs his/her duties. Drivers who only work for one company, are paid a W-2, are required to wear a company uniform, and drive trucks owned by the hiring company or person are usually going to be classified as an employee and not as an independent contractor.

On the other hand, truckers who own their own trucks and haul loads for numerous companies are generally going to be considered to be Independent Contractors. 

Virginia and North Carolina Workers’ Compensation Attorney Joe Miller Esq. works with truck drivers and all types of workers to help them get just recoveries. He’s helped thousands of North Carolina and Virginia workers get the full benefits they deserve. He works with your doctors and independent physicians to determine the severity of your injuries and when and if you can return to work. To schedule an appointment, call lawyer Joe Miller at 888-667-8295. or complete my online contact form

Drunk Driving in Virginia – Can I get More Money if I’m Hit by a Drunk Driver?

Posted on Friday, January 3rd, 2020 at 2:53 pm    

In Virginia in 2018, according to the DMV, there were about 819 overall fatalities due to motor vehicle crashes. Out of those, 262 deaths, or about a third, were due to drunk driving

Drunk Driving Kills. Period. 

Perhaps you, a loved one or someone you know has been injured or killed in a car accident caused by a drunk driver.  

First of all, if that is the case, I am very sorry this is happened to you.  

Maybe part of you feels that you would like to make sure that this person– this idiot– who decided to break the law in such an egregious way by getting into a multi-ton automobile and drive while drunk should be not just sued, but punished.   Punished beyond the normal way that people are punished when a claim is made against them for damages for injury or death. Not just with a slap on the wrist. 

So that perhaps people will hear about this and be deterred from driving drunk.

Well, our lawmakers here in Virginia were well aware of this feeling and passed laws that make it easier for you or your loved ones who were injured to recover more damages than usual in a case where the defendant was driving drunk at the time of the accident.

The law says that in certain circumstances, in addition to regular damages, a jury may award something called punitive damages. These damages are in addition to the normal damages that a jury might award an injury case, such as for medical bills, lost time from work, and pain and suffering.

Punitive Damages are awarded where the defendant’s conduct is so bad that it shows a conscious disregard for the rights of others. This bad conduct is referred to in the law as “willful and wanton” conduct.   What does that mean?

The good news is we don’t have to worry about what that means, because the law sets it out by way of statute, by giving the injured person a series of presumptions they will be entitled to. 

What does that mean, a presumption? That means that if you’re injured, or a loved one has been killed and been hit by a drunk driver and you prove these particular things, you are going to be entitled to have the jury find an award in your favor against the defendant, for punitive damages. 

The bad news is that if you don’t get to the level of these presumptions, you’re probably not going to have a punitive damages case in Virginia. Why? Because the Supreme Court in Virginia is pretty picky about awarding punitive damages outside of drunk driving cases. 

What kind of presumptions are we talking about?

The first is that there is a presumption that the defendant acted willfully and wantonly, if, at the time of the accident, the defendant had a blood alcohol level of .15, either by blood or by the breath method.  Along with that, you must prove that the fact that the person was drunk at the time of the accident was a proximate cause of the accident. 

Of course, there must be a certificate of analysis presented according to the law in order to prove this blood alcohol concentration of .15 or above. 

Now many of you probably already know that the legal limit to be considered intoxicated in Virginia at this time is a blood alcohol concentration of .08.  But that’s not enough to get you this presumption in Virginia. That’s because generally in Virginia, as I mentioned a minute ago, punitive damages are not favored. In other words, the Supreme Court of Virginia does not like to grant them and will routinely strike down cases where people are trying to show punitive damages.

But once you can prove these presumptions, it should not be a problem getting to punitive damages, because once you get a .15 BAC, it’s also presumed that the person basically knew that if they drank and got in a car that their ability to operate that vehicle was going to be impaired. That means they were by definition engaging in willful and wanton conduct, and there is your punitive damages claim.

By the way, this also applies to someone operating a motorcycle or a locomotive, not just a car. 

What if you are just shy of the amount? In other words, what if the certificate comes back and it says defendant’s BAC was .13 or .14? Does that mean you don’t have a punitive damages case?

The answer that is usually no, you still may have a punitive damages case. Why? Because you must remember that most of the time when the blood alcohol test is given, hours have passed since the defendant was hauled away from the accident scene by police. 

During that time, the alcohol in his or her system has continued to metabolize. 

Remember, the question is not what the blood alcohol concentration of the drunk driver was two hours later when their blood was drawn and the test given. The question is what was the blood alcohol concentration of the drunk driver at the time of the collision?

How do you prove that?  By obtaining the services of an expert such as a toxicologist, your attorney can prove in court that in fact, even though the certificate came back at a .13 or .14, that in fact the defendants BAC levels likely exceeded the .15 threshold at the time of the accident. There are several toxicologists out there who are very knowledgeable about blood alcohol concentrations, and routinely give their testimony in court. 

So– is the .15 blood alcohol level the only potential presumption in a drunk driving injury case?

No, there is also a presumption that if you can prove the defendant unreasonably refused to submit to either the blood or breath test, and you can prove they were drunk at the time of the accident by other evidence such as field sobriety tests conducted by the police officer at the scene, then you can get to punitive damages Award by the jury that way as well.

How much can you potentially get for punitive damages in Virginia? 

Currently, in Virginia there is a cap on the amount of punitive damages in VA, which is limited to $350,000.00

But remember, this amount is in addition to whatever award the injured person is given for their regular damages, which may consist of payment of medical bills, lost time from work, and pain and suffering.

Now just as a reminder-and this is so important that it bears repeating over and over again -remember that even though the damages from a drunk driving car accident or any catastrophic wreck might be horrific, as a practical matter, you are always going to be limited to whatever motor vehicle insurance coverage is available in the case. That means if the defendant is driving around with the minimum limits in Virginia of $25,000—which I can tell you many folks are– and your underinsured coverage does not exceed that amount, then that is all you’re going to get, even if you have $1 million in medical bills from the accident.

Please, please do not fall for these ridiculous commercials constantly on TV promising you lower rates. Sure, you may have lower rates, but what policy did you buy, what coverage do you have? Sure, they’ll save you 15% in 15 minutes if you’re going to buy a piece of junk policy, compared to something that gives you sufficient coverage.

I implore everyone, please buy as much car insurance coverage as you can possibly afford, preferably at least $300,000 in liability, uninsured, and UIM coverage.  That coverage is there to protect you in the event you are loved one or in your household is hit and injured severely by someone who was driving around with low or no insurance coverage. 

Joe Miller, Esq. of Joe Miller Law, Ltd, has been representing the injured for over 30 years in Virginia. He routinely helps victims of drunk drivers with these cases. If you are a loved one has been injured by a drunk driver please do not hesitate to call us at 888-667-8295 or utilize our contact form.  Also, if someone close to you has been killed by a drunk driver, we can help with that as well by representing the Estate of the victim to recover damages for those left behind, those whose lives have been shattered by a careless drunk driver. 

Cold Weather Injuries and Workers’ Compensation

Posted on Thursday, January 2nd, 2020 at 3:41 pm    

As North Carolina and Virginia get ready for lower temperatures, it helps to consider some of the causes of cold weather injuries. While many conditions are more severe in northern states; southern climates do experience snow, ice, frost, and winter chills. The effects of cold weather are most prominent among anyone who works outdoors – such as construction workers and agricultural workers. Other workers who are in danger of cold weather injuries include:

  • Workers who build and maintain roads
  • Airport personnel
  • Dock workers
  • Workers who work in food storage, processing, and packing
  • Window cleaners
  • Public safety workers such as police, firefighters, and emergency technicians
  • Postal workers
  • Trash collectors and sanitation workers

The good news for anyone who works in cold weather or is affected by cold weather is that that as long as the accident occurred during work, the employee should be able to file a work injury claim – without the need to prove an employer was at fault for not salting the ice, providing warning signs, or taking other precautions.

Causes of cold weather injuries

Some of the many different types of winter workplace injuries that occur during cold weather are:

  • Slips and falls because snow and ice was not cleared from sidewalks, parking lots, and other outdoor sites
  • Slips and falls because workers and visitors track melting snow water and dirt into the entranceways of the workplace building
  • Vehicle accidents due to cold weather. Ice, especially black ice which isn’t readily visible, can easily cause a driver to lose control of his/her vehicle. Truck drivers who are injured while delivering goods, construction workers who use vehicles at construction sites, and salespeople who are on the road – all can claim workers’ compensation benefits if they are hurt in a car or truck accident while on company time.

Employers should take extra precautions to:

  • Ensure their workers are properly dressed for the cold
  • Ensure that vehicles are inspected so they don’t break down on the roads
  • If necessary, make sure vehicles are equipped with appropriate snow tires
  • Ensure that machines and equipment are in working order if they are to be used outdoors or in cold conditions
  • Make sure they review weather forecasts and plan accordingly

Hypothermia, Trench foot, and Frostbite

Hypothermia is a major risk for workers who work outside or who work inside where there isn’t a proper amount of insulation or heat. Often, it’s the inside workers who are at most risk for hypothermia because outside workers take steps to prepare for working in the cold starting with making sure they are properly dressed. 

Hypothermia is the falling of the body’s temperature below 95 degrees, 3.6 degrees below the body’s normal temperature of 98.6 degrees. Hypothermia, if not treated promptly, can be threaten a worker’s life. The disorder can cause cardiac failure and breathing difficulties. Survivors may suffer gangrene and frostbite – especially in their fingers and toes.

Some of the symptoms of hypothermia include:

  • Shivering
  • A pulse that is weak
  • Speech that is slurred
  • A lack of coordination
  • A poor pulse rate
  • A lack of energy
  • Tiredness and fatigue

Some of the key risk factors for hypothermia in workers include:

  • Being in the cold for long stretches of time
  • Getting wet
  • Inadequate clothing
  • Poor heating systems

Wind is an extreme risk factor for hypothermia because it lowers the effective temperature and can remove the warm air at the skin level. Areas that aren’t properly protected are especially vulnerable to losing heat. Contact with ice and other cold surfaces can also increase the risk of hypothermia.

Other risk factors for hypothermia include drinking alcohol, the use of drugs, some medications, the age of the worker, and how tired the worker is. Workers who are exposed to cold should dress in layers, keep dry, and pay special attention to keeping their head, hands, and face warm. Employers should allow for extra break times in cold weather. Employers should also rotate their work force more often so no worker is in the cold for too long.

Trench foot. This condition occurs when the foot is wet. To stop any heat loss, the foot’s blood vessels constrict, which can cause circulation to be shut down. If not treated correctly and in a timely manner, the constrictions can cause tissue to die. Some of the symptoms of trench foot include blisters, redness of the skin, swelling, and numbness.

Frostbite. The disorder occurs when the skin and the tissues underneath the skin begin to freeze. Usually, frostbite occurs in the toes and the fingers – so that the body can keep the vital organs working. Any worker whose skin turns white or gray, whose skin becomes hard, or who develops blisters or numbness should be treated by medical professionals immediately.

Workers who suffer hypothermia, trench foot, frostbite due to direct exposure to the cold or suffer broken bones and other injuries due to workplace accidents have the right to file a work injury claim. The claim should include:

  • Payment of all medical bills including doctor visits, hospital stays, and medications
  • Compensation, primarily at the 2/3rds rate of their lost wages for the time they can’t work
  • If any part of the body requires amputation, the worker may be entitled to statutory benefits for a permanent disability.

North Carolina and Virginia workers’ compensation Lawyer Joe Miller Esq. has been fighting for injured employees for more than a quarter of a century. He’ll fight the efforts of the insurance company to deny or limit your claim. He’ll contest every attempt to force you back to work before you’re ready. His priority is helping you get all the medical benefits and lost wages the state laws permit. To review your rights and to speak with a strong advocate, call attorney Joe Miller at 888-667-8295. or complete my online contact form

Give a Proper History of the Accident to Your Doctors

Posted on Tuesday, December 17th, 2019 at 1:37 pm    

Workers Compensation Lawyer Joe Miller of the Work Injury Center explains the importance of giving a good, consistent history of your work accident to all of your health care providers:

Your Settlement Demand Went Out. Now What?

Posted on Sunday, December 15th, 2019 at 1:35 pm    

Workers Compensation Attorney Joe Miller discusses what to expect after your settlement demand is sent off to the insurance company:

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