We have written a lot about rehabilitation professionals, particularly vocational rehabilitation professionals. Insurance companies have traditionally used vocational rehab professionals to set you up for a Form 24. (That’s the Industrial Commission form they use to cut off your benefits.) All the voc rehab professional had to do was to send you out on a variety of ridiculous job leads for which you were either completely unqualified, paid next to nothing, were part-time, or were a couple of hours from your house. When you reasonably decline to go through with those interviews, the rehab professional would document that you were non-compliant and insta-presto the Industrial Commission would cut off your weekly checks. For those of you with workers’ comp claims arising before June 24, 2011, you still get to deal with this.
Several quick examples:
An RP referred an injured worker to sell wooden outbuildings from the back of a pickup truck on the side of the highway in the mountains of Ashe County. On commission.
An RP referred a client of ours to a job as an interior decorator for mobile homes which were sitting on the sales lot. When our client went early for the interview, he observed the RP dropping off a local private investigator from her car. The “interview” took place as a breakfast joint at a table next to where the investigator was sitting. And the “interview” was with another American Rehab RP who was pretending to be an employer.
An RP referred a client to a “work from home and earn $1000s per week” advertisement in the local paper. All the client had to do was scrape up $500 for the information kit – and the insurance company wasn’t going to pay for it. The client’s refusal to pay the $500 was documented as non-compliance.
An RP recently wrote a report to be attached to a Form 24 stating that he had referred our client to over 100 jobs but had not received any independent confirmation that he had put in a single job application. When questioned about this, the RP admitted that he had only asked two of the “over 100” employers if the client had put in an application. And both of them said that because they were not hiring at the time, they didn’t keep any applications at all and thus could not say one way or the other if the client had applied. The RP was outraged that we suggested his statement “I haven’t received independent confirmation” was misleading just because he had made essentially no effort to obtain that independent confirmation.
So, those of you with claims under the old law still are vulnerable to these types of games. But those of you with new claims . . . with the definition of suitable employment changed to permit part-time minimum wage jobs, even if you had been making $100,000 annually, there really isn’t much a vocational rehabilitation professional has to do. As long as you can be a Wal-Mart greeter or a parking lot attendant or a security guard, your benefits may be short-lived.
Given that the voc rehab professional no longer has to find “suitable employment” for you (technically she still looks for suitable employment, but all employment is now suitable) then what will she have to do? And with nothing to do, why pay her to do anything? An entire division of the insurance companies was basically facing the elimination of their jobs. And this was a division which had served the interests of the insurance companies with great devotion over the years.The solution was to create a situation where vocational rehabilitation is still relevant even after you have returned to work. Under the new law, if you return to work making less than 75% of your old previous wages, then the injured worker has the right to request vocational rehabilitation including education and training at any North Carolina community college or public university at defendants’ expense. The only catch is that it must be likely that completion of the retraining will result in a substantial increase in your earning potential.
The question which only time will answer is whether the vocational rehabilitation professionals will continue to serve the insurance companies by saying that future voc rehab is unnecessary (and therefore they are unnecessary) or whether they will be forced to assist injured workers in obtaining further services which the carriers oppose.
At Oxner + Permar we have met with a couple of independent vocational rehabilitation professionals who have already demonstrated they would buck the system and do the right thing for injured workers. We are putting standards and guidelines in place to make it nearly impossible for the carrier to prevent you from getting the education you may need to completely return to your old standard of living.
This article was written by Chip Permar
Oxner + Permar has more board-certified specialists than any other firm representing injured workers. North Carolina is one of 18 states that has a process by which an attorney can demonstrate a mastery of the law and be officially labeled a board-certified specialist in a particular field. You probably didn’t realize this, but lawyers are not ethically permitted to use terms like “expert” or “best” to describe themselves. Such terms are so subjective that just about any one can call themselves the best. So the North Carolina State Bar created a very difficult system for letting an attorney prove they really know the law.
There are three steps to becoming board certified.
First, an attorney must apply for permission to be considered. We must have several years of experience, we must dedicate a sizable amount of our time to the specific field, we must complete a detailed questionnaire explaining our experience (that we have taken extra training in this field), we must show that we have handled a large number of cases, show that we have had mediations, hearings, Full Commission appeals and cases in the Court of Appeals.
Second, the State Bar interviews ten or more attorneys who work against us. These are not our partners — they are either our competitors or attorneys on the other side of us. Attorneys anonymously grade others in terms of competency, success and understanding of the law.
If an attorney passes the first two steps then we are invited to sit for a day-long written examination (the Third step). This test covers the entire breadth of workers comp law, the Industrial Commission rules, the regulations governing vocational and medical rehabilitation, and is generally just an awful experience. Many attorneys have to repeat the examination the next year before passing it.
So why is it important to hire a firm with board-certified specialists? You’ve only got one crack at your case. Do you really want to trust it to a firm that hasn’t demonstrated that it really understands and succeeds at the law? Anyone can buy the back of the phone book or put an ad on television. Only a few attorneys are board-certified specialists.
If the answer to that question is yes, then we either have very frustrating news or great news for you. We wish it were just good news all the time but it never is… Here’s the follow up question: if you were injured by someone else’s negligence was that person employed by your employer?
If you were injured by the negligence of a coworker it is essentially impossible to bring anything but a workers compensation claim against your employer. On the other hand, if you were injured by the negligence someone outside of your company you can bring a lawsuit against them – in addition to your workers comp claim.
Here is where it gets tricky… Because your employer lost out due to that other persons negligence your employer can also bring a claim against that negligent person. But only one claim can be brought. We’ve seen situations where the employer slips in and tries to collect all the available money without ever telling the injured worker about it.
Another problem area occurs when the injured worker does all the work to recover money from the negligent party and then the workers comp adjuster swoops in and tries to take most or all of it. Can she do that? As awful as it seems under North Carolina’s anti-injured worker leanings, yes she can. there are certain things which you can do to protect yourself from that.
At Oxner + Permar we have substantial experience is coordinating the workers compensation and personal injury cases so that you get the maximum combined recovery. This is a very tricky area of the law. So, if you believe you were injured due to someone else’s negligence give us a call so that we can help explain your options.
This article was written by Chip Permar
If you haven’t reached maximum medical improvement your employer can force you to do ANYTHING and cut off your weekly checks.
A few years ago Chip Permar handled a case where the employer called an injured person back to work and had him sitting in an unheated, unlit trailer on a construction site doing absolutely nothing in the middle of winter. The scenario was so over-the-top that it became almost an urban legend in terms of how illegal it was. Not any more.
The court of appeals recently permitted an employer to return an injured employee to a make-work position if it was therapeutic; that is, if performing the light-duty job would help the injured worker get better then it was acceptable. The new law takes this idea and eliminates any need for a positive benefit to the injured person. The law explicitly states that prior to maximum medical improvement the injured worker may be forced to return to “noncompetitive employment.” What does that mean? It means sitting in an unheated, unlit trailer on a construction site doing absolutely nothing in the middle of winter.
You might ask yourself; well I’m going to get paid aren’t I? The answer to that is “yes.” You will get paid. But the danger – and one that we have seen occur literally hundreds of times – is that as soon as you go back to work the employer finds an excuse to fire you. They can claim you were late to work, had a poor attitude, or were incompetent, and they will fire you. Will the adjuster turn your checks back on? Don’t count on it.
If your employer is trying to bring you back to work before you have reached maximum medical improvement it is almost imperative that you have an attorney representing you. That offers basically the only layer of protection between you and almost certain disaster. In our experience employers are much less likely to play games when you already have an attorney. They normally rely on your ignorance of the law to help them implement their plans. Thus having a lawyer on your case will make them pause. It isn’t a guarantee but it certainly increases your odds of survival.
Currently if you are injured and you cannot return to suitable employment, you are entitled to draw workers’ compensation benefits for life. For nearly twenty years Todd Oxner has been telling people if they live to 102 and die in a bar room brawl they’ll get paid until they’re 102. No more. “Lifetime” claims are now limited to 500 weeks unless you are completely disabled from all work – not just suitable employment. Basically it’s going to be 500 weeks unless you are in a wheelchair. As long as you can work as a Wal-Mart greeter on a stool it’s 500 weeks. It’s somewhat more complicated than that and we will deal with that in an upcoming article. But it won’t apply to most people at all.
If (when) you return to work at reduced wages you will be entitled to draw wage loss for a period of 500 weeks. That is an increase from the 300 weeks under current law. Same as now, any week of total disability paid is deducted from the 500 week total. But in a positive twist, the 500 weeks is not a timer that begins on the date of accident. If your employer brings you back to work in transitional duty or make-work for a period of time that period is not deducted from the 500 week total.
It is important to note that these changes apply to cases arising after June 24, 2011.
There are some significant twists to these provisions which we will be addressing in upcoming weeks. In the meanwhile, however, if you have a new case, most of the strategies which were used before are now not going to work. Call Oxner + Permar and let us help you work out a roadmap to your success in workers’ compensation.
