• Nurse consultants who refuse adequate medical treatment because it is costly;
• Hired guns doctors who are paid to make a diagnosis in line with the insurance carrier's standpoint, i.e. avoiding expensive surgery or lengthy rehabilitation;
• The refusal of in-depth medical testing on the ground that it is unnecessary, which in turn allows them to maintain that there is no objective sign of injury;
• Claims that your injuries are not causally related to the work accident.

• The number of fatal injuries among the self-employed decreased by 6 percent, more than the decline in hours worked, whereas fatal injuries among wage and salary earners increased by 2 percent in 2010;
• Fatal work injuries in the private construction sector dropped by 10 percent, and are down nearly 40 percent since 2006;
• Work accidents involving fires went from 53 in 2009 to 109 in 2010, the highest count since 2003;
• Workplace homicides declined 7 percent in 2010 to the lowest level ever registered by the census, but the number of female fatalities increased 13 percent;
• Fatal workplace injuries among police officers increased by 40 percent, from 96 in 2009 to 134 in 2010.
• Work-related fatalities in the transportation sector decreased slightly from 2009 to 2010 but still accounted for nearly 40 percent of all workplace injuries in 2010;
• The number of private sector oil and mining fatal accidents shot up 74 percent, from 99 in 2009 to 172 in 2010. The disasters of the Upper Big Branch Mine and the Deepwater Horizon oil rig accounted for a significant part of the increase.

• Training: Since you are likely to enter a new field of professional activity, because of your restrictions, you need to be trained. Training can also considerably widen and update your skills and increase your chances of finding a job.
• Assistive Technology: If you are impaired, and your impairment can be reduced thanks to devices or tools, the VR professional will help you get acquainted with the technology.
• Job Matching: This includes skill testing, vocational counseling, job testing and custom training.
• Job Placement Assistance: You will be taught how to search for jobs, how to conduct interviews, how to understand wages and conditions, what to ask and how to reply.

• The compensation for your loss of wages is equal to no more than two-thirds of your average weekly wages, capped by a minimum and maximum limit;
• The compensation for Partial Disability pays two-thirds of your average weekly wage during a number of weeks, depending on your impairment rating, even if your disability is permanent;
• Your medical expenses are covered, but you cannot choose your doctor and your treatment, unless you ask and obtain a hearing with the Industrial Commission.

• Provide a safe work environment
• Provide adequate training
• Provide adequate supervision
• Provide rest periods and breaks, as required, and
• Provide the necessary safety equipment and protective gear

• Follow safety rules and procedures
• Use the safety equipment and protective gear
• Ask questions when in doubt
• Tell supervisors or parents if they feel unsafe or know of hazards at work

• more than 3 hours on a school day
• more than 8 hours on a non-school day
• more than 18 hours during a week when school is in session
• more than 40 hours during a week when school is not in session

• Report the accident as quickly as possible and in great detail, and ask for a written copy of your statement;
• If necessary, gather statements from witnesses supporting your version of the event. Check if similar accidents have occurred in the past;
• Add to your report any element pointing out the employer's responsibility in your work accident, like the absence of safety measures or protective gear, a lack of training or inadequate work tools. This may strengthen your case and weaken the employer's;
• See a doctor, if necessary a specialist, who can determine the extent and nature of your injuries and might be able to back up your case in a hearing;
• Discuss your health history and health file with your doctor to make sure there is no confusion between your workplace injuries and your physical condition prior to the accident.

• Cardiovascular system: The shock could result either in asystole (absence of cardiac rhythm) or fibrillation (chaotic fluttering of the ventricles), both lethal if not treated immediately. Full recovery is possible if the voltage did not kill the victim instantly.
• Respiratory system: The lungs are poor electricity conductors and are therefore less often damaged by electrocution, except when the current passes through the chest. This could result in tetany of the chest muscles and respiratory arrest. This could also be the case if the respiration-controlling brain area is affected and might require resuscitation.
• Central nervous system: Victims of electrocution often collapse and hurt themselves by falling. This could result in broken bones, brain or spinal cord damage. The spinal cord may also be hurt if the current passes from hand to hand.
• Musculoskeletal system: A prolonged tetany (muscle contraction) may cause muscle fiber breakdown and kidney damage. The body parts in contact with the power source and the ground or touched by the arc flash could be severely and deeply burned.
• Other damages: The appearance of some injuries might be delayed and last for a long time, such as eardrum damage or cataracts. Many patients could also suffer from mental symptoms such as depression, memory loss or confusion.

• The duty was only light in the very beginning, and you were soon imposed more demanding tasks;
• No matter how often you explain the doctor's restrictions and the scope of your "light" work, your supervisors only hear what they want to hear;
• People have now forgotten what the restricted scope was when you returned to work, and no one seems to have a written description of your job;
• Your refusal to perform certain tasks creates a negative reaction and you feel increasingly the pressure to do as you are told;
• You are being threatened with reduced pay, fewer hours or even termination.

• You did not get injured at work, there was no accident related to the injury;
• This injury existed long before your "accident";
• We cannot diagnose any injury, your pain is exaggerated or imaginary;
• You don't need surgery, you can treat this with pain killers;
• We declare you fit to go back to work.

It's really quite amazing when you think about it. With no medical or rehabilitative training whatsoever, these elected officials, backed by their insurance company friends, have summarily issued a ruling, based on absolutely nothing except the notion that it may "play well" politically--- that unless you have half your limbs missing, are burned beyond recognition, or are essentially brain dead, you are presumed capable of working, even if all of your doctors say you are not. (see proposed section 8 (C) of the Bill).

And that 'ruling' applies, even if the approved, treating physician has given an opinion that based on the injuries suffered by the worker, they are permanently and totally disabled, and cannot work in ANY JOB, EVER.

Under the proposed Bill, those valid medical opinions that a worker is disabled are to be without any consequence whatsoever in the statutory scheme they have proposed. This is the case even with a worker being continually disabled and held out of all work by his approved doctors for 500 weeks, or about 9 years.
These political opportunists have 'decided' that this disabled worker, even if there is no medical evidence whatsoever supporting the idea that he or she can return to work, is not entitled to any presumptions or mention in the statute regarding their disability.

This is not only sad, it's disgusting and nothing more than a money grab by big business. The Insurance Companies, with their friends in place and in control of the legislature, see dollar signs. They are not interested in the facts or the supposedly conservative principles which they espoused to get elected.
That is because it is YOU, that taxpayer, who is going to pay the price when these disabled workers are going to be forced onto Medicare, Medicaid, food stamps, and social security disability after those 500 weeks are over.
Who in their right mind would hire someone who hasn't worked in 9 years and has been certified as disabled by every doctor they have?
What's more, those State and Federal programs don't have the crazy disability standards that the Republicans are proposing. Why?
Because the government was not supposed to be picking up the tab for workers injured on the job. That is why Workers Compensation Insurance and the Workers Comp Act were created in the first place.
That is why Employers pay workers compensation insurance. And the premiums in North Carolina, in terms of cost, are right in the middle. Not too high, not too low.
It's a good system. Workers get good benefits and Employers get a good deal, for a good price. Why mess with it?
Let's hope that the Hon. Governor Bev Purdue with her veto pen and the voters and reasonable elected officials see thru this for what it is--an unadulterated money grab and attempt at a bailout --by greedy Insurance companies----Companies that don't need a bailout, and never did.

If you have suffered a work accident, contact Accidental Injury Advocates Ltd. in Elizabeth City, where attorney Joseph Miller, Esq has been representing injured North Carolina workers for over 20 years. Call us toll-free 888-694-7994 or send us an e-mail for a FREE, no commitment discussion of your case.

Blog 5

A Five- Part Series

Copyright 2011, Joseph Miller, Esq.

In our previous blogs in this series, we were in the middle of discussing our fictional example of a 59-year-old permanently disabled worker, and the components that might go into any potential lump sum settlement of his or her case.

As one of the elements of potential settlement of the case, we were discussing Non--Medicare covered services, such as attendant care, and the various levels of care that might be required into the future, depending on the needs of the injured worker.

What are the likely costs of such care over the remainder of the employee' s lifetime?

As we discussed previously, it is imperative that we know these things, because if the settlement is insufficient, when the worker reaches a stage in their treatment where they require expensive, 24- hour care, they will have few options to pay for such care at that stage in their life, other than possibly state-sponsored Medicaid.

And in order to be eligible for the state-sponsored Medicaid, the worker would likely have to prove that they were completely indigent (i.e., broke) in order to be eligible for coverage. In addition, such care would likely take place in a facility that is substandard.

If the type of care is such that he can be performed by a family member, the North Carolina Industrial Commission has approved fees for family members performing attendant care recently in the neighborhood of $12 and $13 per hour.  See, for example, Arce v. Mountain Wood Forestry, NC 571046, (Nov, 2008), upheld by COA in unpublished opinion, Jan, 2010, No COA09-490 ($12/hr); Yuckel v. Childress Racing, IC No. 538163 (March, 2010) ($13.00/hr).

Payment for skilled nursing services through an agency or service is a different matter. The Commission will approve the prevailing market rate in the community for such services. See, e.g. Yuckel, above.  (approved rates of $18.72 per hour and $19.08 per hour for CNA attendant care, separate from rates for wife's care).  Sometimes, these rates can be as high as $25 per hour, depending on the level of disability and care required.

So, now that we know this, let's get back to our example of the 59-year-old, privately disabled worker.

Let's assume, in our example above, that the Lifecare Planner has finished with her report, and states that and her estimation, the claimant will require three hours per day utilizing unskilled nursing care, for the next 10 years; however, after that, in addition to the three hours per day, the claimant will require an additional two hours per day of skilled nursing care.

Remember we said above, that the life expectancy tables show that the claimant has a life expectancy of 21.9 years.

So, according to the Lifecare Planner, looking at the first 10 years, if we use the rate of $12 per hour, at three hours per day, that comes to $252 per week, or $13,104 per year, meaning $131,040.00 for the next 10 years, to provide the claimant with attendant care.

For the remaining 11.9 years after that, that comes to $155,937.60; however, recall that the Lifecare Planner also said the claimant would require an additional two hours per day of skilled nursing care.  Using a rate of $19 per hour, that comes to $266 per week, or $13,832.00 per year, which means an additional $164,600.80 in skilled nursing care.

If you add those figures together, namely, $131,040.00, $155,937.60, and $164,600.80, that comes to $451,578.40, representing a total lifetime cost of future attendant care and skilled nursing for the claimant for his work-related injuries.

Now add that figure of $451,578.40 to the previously- mentioned present workers comp wages figure of $308,014.20, and that yields

$759,592.60.

Note that the medical care figure is not reduced to present value, nor is it appropriate to do so, because of the likely increasing cost of health care over the next 20 years, which more than offsets any benefit to the claimant of receiving a lump sum.

So, the figure of $759,592.60 is fairly close to the amount that your attorney wants to shoot for in terms of settlement of your case. 

Of course, every case is different, and everybody's comfort level in terms of what they might be willing to accept is also different. Much depends on how serious your medical condition is. As I often tell my clients, I cannot "sit in your skin." When you say "it hurts," I do not know what that means to you.  Oftentimes, the insurance company will elect to disengage and not move forward with further settlement negotiations.

The beautiful thing is that the worst that can happen you choose not to settle is usually only that you continue to be paid to workers comp each week, and receive your medical care through workers comp.

If you have suffered a work accident, contact Accidental Injury Advocates Ltd. in Elizabeth City, where attorney Joseph Miller, Esq has been representing injured North Carolina workers for over 20 years. Call us toll-free 888-694-7994 or send us an e-mail for a FREE, no commitment discussion of your case.

On April 5, 2011 injured workers and their families, friends and supporters are going to Raleigh to visit their legislators and talk to them about the importance of protecting injured workers and their families.

For those who cannot attend, we are sponsoring a call-in day. Call on April 5 and tell your legislator how you feel about changes to the workers' compensation system.

Big business, insurance companies and their lobbyists are pushing this legislation to cut their cost of taking care of injured workers. One of the most serious changes being proposed is to cut off workers' compensation even if the worker is still disabled.

Compensation will be stopped in most cases even if the worker has restrictions and the old employer will not take him back and even if there is no new employer that will hire the injured worker.

The insurance companies are also seeking to expand their control over your doctor. They are working on proposed legislation that will allow them to call, email or write your doctor without your prior knowledge or consent. Furthermore, the legislation requires only that they report the doctor's opinions but nothing about the new information or statements made about the injured worker to your doctor by the employer, insurance agent or defense attorney.

Don't let our state government bailout
corporations, big businesses and insurance companies while they cut off compensation to disabled workers and their families. When benefits are cut off to injured workers the burden of supporting these families shifts to the state's public benefits programs.

Our State budget cannot take on this burden, and neither can our taxpayers, when ultimately it is the responsibility of the employer and insurance company to protect their employees. Our economy needs to grow and for that to happen our working families need money to pay for their food, homes and cars.

Join us in going to Raleigh to talk to the legislators about this bill. On Tuesday, April 5th, pro-worker forces from across the state are holding a VOW (Value Our Workers) NOW! rally in Raleigh:

• At 11:00 a.m., injured workers, their families and those who care about them will gather right in front of the General Assembly on Jones Street. There is strength in numbers!
• For those of you who wish to visit the offices of your representative personally, information on how to locate their offices will be provided.
• Maps and additional contact information for your Representatives will also be available.

• For those of you unable to attend we are having a statewide call-in day and ask that you call, mail and email your Representative to let them know you are against the bailing out insurance companies while cutting off disability compensation to disabled workers.
It is critical that our State legislators are aware of how this proposed reform will impact the lives of injured workers in North Carolina. Don't let them put profit above the rights and well being of the injured workers, or those who may be injured, who help to make North Carolina the great state that it is.

If you have any questions contact:
Joe Miller, Esq. Toll Free 877-622-8656
or email at jmiller@ncworkersrights.com

Blog 4

A Five- Part Series

Copyright 2011, Joseph Miller, Esq.

In our previous blogs, we had begun speaking about a fictional 59-year-old, permanently disabled employee.

We have begun talking about the elements that might go into a potential lump sum settlement of that individual's claim, and we said that the first element was the present value of all future compensation to the employee.

And we did some calculations, and determined that this first element totaled $308,014.20.

Now, we need to talk about the components of the next element, namely, future medical care.

2. Future cost of medical care: Medicare-covered items.  Remember we said that the next component was the future cost of medical care, and I mentioned that we must break that down as between items that would be covered by Medicare, and items that would not be covered by Medicare.

As to those items that will be covered by Medicare, that is really a separate matter, and although it is a very important part of your settlement, because it is something that must be paid by the insurance carrier in order to resolve your claim, and usually, by the time your attorney reaches negotiations, it is a foregone conclusion that the workers compensation carrier will pay or somehow fully fund the Medicare Set-Aside (MSA), in whatever amount they are required to fund it. Please see our article on Medicare Set-Asides (MSA's) at

http://www.ncworkersrights.com/library/medicare-setasides-msastheir-purpose-and-use-in-settlement-of-your-case.cfm  for more detailed information on that.

The more important question is: Are there other significant future medical expenses that are not covered by Medicare, and would therefore not be part of any Medicare Set-Aside arrangement?

3.  Non-Medicare Covered Future Expenses.  Remember we said that in our example above, the claimant's doctor has stated that due to his injuries, the claimant will require assistance with activities of daily living. Remember we also said previously, that in certain circumstances, it may be appropriate to hire a Lifecare Planner.  This is a very skilled professional, usually someone with special nursing training whose job it is to determine, in as much detail as possible, utilizing all their skills, speaking to your doctors, assessing your level of disability, reviewing the entirety of your medical records, and interviewing you in your home precisely what level of medical care, you are likely to need on a weekly basis for the rest of your life.

You may ask, isn't that going to be included in the MSA report?  And the answer is, if it is something that you need at home, or even in a facility, if it is long-term, i.e. not just for a month or two, but for the rest of your life, according to the Medicare rules, unless you are completely homebound, Medicare does not cover long-term home healthcare services.  Therefore, it would not be included in the MSA report, because it is a non-covered expense.  Therefore, guess who has to pay for it?  You workers compensation carrier has to, unless you completely settle your claim.  Once you do that, then this expense is all on you.  Therefore, it is imperative, before settling your case, to quantify the amount of long-term future care you will likely need, to the greatest extent that you possibly can.

As far as this kind of care of care is concerned, it really breaks down into two types.  First, there is really the unskilled type of care, the kind which could be provided by a family member or spouse, commonly referred to as attendant care.  This might include assistance with cooking, cleaning, dressing, and bathing.

Then, there is another level of care, which really is more appropriately provided by someone who is a qualified, skilled nurse, such as a Certified Nursing Assistant (CNA) that would be available through a service or agency.  This is usually referred to as skilled nursing care.  They may provide care such as providing injections, wound dressings, vacuum evacuation of the bowels, or other skills that are more appropriate to be performed by a professional.

In our next blog in this series, were going to talk a little about the potential costs of these services over the remainder of this fictional employee's life.

If you have suffered a work accident, contact Accidental Injury Advocates Ltd. in Elizabeth City, where attorney Joseph Miller, Esq has been representing injured North Carolina workers for over 20 years. Call us toll-free 888-694-7994 or send us an e-mail for a FREE, no commitment discussion of your case.

• Give your best effort: All the parameters that are measured during the tests, including your indications about pain and difficulty, are treated by computer software that will highlight inconsistencies, contradictions and exaggerations.
• Be specific about your pain level: You will be asked to rate your pain level on a scale, and to describe exactly where and when the pain occurs.
• Stop performing the activities when they become unsafe: You are not supposed to return to work on tasks that you will give up after a few hours or days. You are also not expected to work in constant pain or in a situation where your pain keeps increasing.
• Perform the tests without any pain killers or muscle relaxers: Unless your physician specifically told you to take them, make absolutely sure these drugs do not interfere with the objective measurement of your abilities.

Blog 3

A Five- Part Series

Copyright 2011, Joseph Miller, Esq.

In our previous blogs, we talked about the factors that might interest an insurance company and wanting to resolve the claim of a permanently disabled worker for a lump sum, as well as those factors that might discourage the insurance company from being interested.

In order to understand how a potential lump sum settlement of the permanently disabled worker might work, in this blog, we are going to begin to explore a fictional example of the type of case that might interest an insurance company and offering a lump-sum settlement in such a case.

Most of the time, settlement discussions will take place within the context of a mediation. Elsewhere on our website at www.ncworkersrights.com , we discuss the concept of mediation in North Carolina, its requirements, and some of our advice for success. Please see our information there.

So, how do we begin?

You remember, in the first blog in this series, we talked about the elements of a potential settlement being as follows:

1-   weekly compensation rate, and the present value of that yearly amount over the entire course of the remainder of the employee's life;

2-   The potential medical expenses that will have to be incurred by the comp carrier/employer over the remainder of the employee's life due to the employee's injuries.

a.   Those future medical expenses that would eventually be covered by Medicare;

b.   Those future medical expenses that are not covered by Medicare.

Well, assuming there was some interest on the part of the insurance company to resolve your claim, the first step would be to figure out the present value of all future compensation; however, since that is a mathematical calculation, it does not take very long.

When planning out a potential settlement, your attorney needs to take into account those things which might take the most time.

If your attorney waits until the day before your mediation to look into the items under 2, above, they are not going to have sufficient information to resolve the claim at mediation. Moreover, if it is determined that a Medicare Set-Aside (MSA) (see below) is required, there will be insufficient time to work one up, and everyone will have wasted a trip.

It is therefore very important that as soon as practicable, assuming that the worker is at maximum medical improvement, that there is  sufficient information in place to make an estimate as to what the worker is looking at as far as the total cost of injury-related medical care for the remainder of their life. 

Often times, but not always, this estimate of the cost of future care is accomplished with the hiring of someone called a Lifecare Planner, whose job it is to look at your medical records, interview you, perhaps interview your doctors, and give an estimate as to the cost of your future care, especially that type of care that would ordinarily not be covered by Medicare.

That is something that needs to be done as soon as possible. If the employee's Doctor recommends the involvement of a life care planner, in many instances, the defendants will agree to pay for the Lifecare Planner. If not, the attorney may be able to have the Industrial Commission order that the defendants pay for the lifecare planner, should the case not resolve.

Consideration of Medicare.  In addition, as to the cost of your future care, it is very important to make a distinction as between what Medicare would cover, and what they will not cover.  Why is this?  Because today, federal laws and guidelines require that in entering a workers compensation settlement, insurance companies, and your attorneys, must take into consideration Medicare's interests.  In other articles and blogs on this site, we get into more detail and describe the requirement of a Medicare Set-Aside (MSA), as well as future non-Medicare covered medical costs, and how they may play into your settlement.

A settlement example.  For the moment, let's just take the following hypothetical example: 

Let's assume that you have a 59-year-old man who is permanently disabled because of his work-related injuries.  His weekly compensation rate is $450.00 per week. His doctor has said that his injuries are permanent, and it will worsen over time, and he has also said, in response to a letter from the worker's attorney, that he will require some assistance with his daily activities of living, on a permanent basis, due to his injuries.

So, we know that we have three components that we have to look at, let's take them one at a time:

1.   Future Compensation for the Employee's lifetime. The present value of all of the compensation the worker will receive over the entire course of the remainder of the employee's life. In this scenario, if we look to the statute books, in North Carolina a 59-year-old man has a life expectancy of 21.9 years. So that's step one-get a life expectancy.

Step two is figuring out the compensation at a yearly rate. At $450.00 per week, times 52 weeks, this man is receiving $23,400.00 per year in workers compensation. 

Step three, multiply the figures. Now if you multiply that amount times 21.9 years, that comes to $512,460.00; however, remember we spoke about present value. Let's get into that basis concept. Which brings us to step four.

Present value.  What does that mean?  Present value is a universally recognized concept that recognizes the following simple truth: For the worker to receive the entire amount of his future payments in lump sum is worth much more than simply receiving payments each week. 

Why is that? Because the worker could take that money and invest in something very safe it and easily earn at least 5% per year on that money, eventually yielding much more than $512,460.00.  If the worker were only receiving that $450.00 per week, they could never accomplish that type of return on investment.

Therefore, we must discount the lump sum to present value, which is a figure which is a true representation of receiving the ENTIRE LUMP SUM of $512,460.00 now.

The calculations are too complex to get into here, and are usually performed by an economist, but if you work it out, the present value of the $512,460.00 lump sum payment appears to be approximately $308,014.20.

So, we have the first component of the potential settlement for this hypothetical, disabled 59-year old worker.

In our upcoming blogs, we're going to look at the other components in our example, with a view toward getting to a final figure to shoot for in settlement of this fictional example.

If you have suffered a work accident, contact Accidental Injury Advocates Ltd. in Elizabeth City, where attorney Joseph Miller, Esq has been representing injured North Carolina workers for over 20 years. Call us toll-free 888-694-7994 or send us an e-mail for a FREE, no commitment discussion of your case.