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Workers’ Compensation for Undocumented Workers, Part 2: Your Rights Under NC Law

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This is Part 2 of our series on workers’ compensation for undocumented immigrants. You can find links to the entire series here.

North Carolina is home to about 250,000 undocumented immigrants, who represent more than 5 percent of the state’s labor force.

These workers are entitled to the same legal protections as anyone else if they get hurt on the job. But fear and intimidation prevent many of these undocumented workers from reporting their injuries and seeking the medical treatment and compensation they need and rightfully deserve.

Your immigration status has no bearing on your ability to collect workers’ compensation benefits in North Carolina. That’s the truth, no matter what anyone else has told you, including your boss or your coworkers.

Your right to workers’ compensation – including payment for lost wages and medical treatment – is spelled out in state law.

If you are undocumented and living and working in North Carolina, your fear of deportation is very real. We understand that you may not want to rock the boat or risk leaving the life you’ve built here by reporting that you’ve been hurt at work.

But keeping quiet will not help you heal. It will not pay your medical bills. It will not provide for your family when you’re in too much pain to work.

Please know that as your attorney, anything you tell us is confidential. That means we will not reveal your immigration status.

As for the other side in the case, legal ethics rules are also very clear. The defense attorney and the insurance carrier in your workers’ compensation case ethically cannot use information discovered in the course of the claim to report the injured worker to ICE.

However, the individuals in the claim (namely employers, particularly those who are uninsured) are not bound by these same ethical rules. We will also do everything within our legal power to make sure your employer doesn’t retaliate by reporting you to immigration officials. We won’t tolerate bullying or threats of deportation from employers who are trying to get out of paying a legitimate workers’ comp claim.

Knowing this, we understand it can be extremely stressful and frightening to file a workers’ compensation claim if you are undocumented. But trust me when I say we have lots of experience with these types of cases and many good outcomes for our clients. We also understand the cultural and language issues involved in these types of cases.

Our workers’ compensation team speaks fluent Spanish, and they are uniquely qualified to cater to the Hispanic population.

We will work hard to earn your trust and fight for your case. And we also keep you informed every step of the way, through face-to-face meetings, telephone updates or whatever method you prefer. We do not charge for these meetings or phone conferences.

We provide copies of most documents in Spanish and in English for our clients, and we do not charge our Spanish speakers for the use of an interpreter.

Please keep these things in mind as you decide whether to file a workers’ compensation claim or keep silent about your injury.

You’re not doing yourself any favors by ignoring your injury and working through the pain.

This is what many employers expect you to do. Many companies knowingly hire undocumented workers as a way of avoiding their legal and moral obligation to keep their workers safe. They know many undocumented immigrants will not pursue workers’ compensation benefits because they’re afraid of being discovered.

These companies are doing something illegal, too. It is illegal for them to hire undocumented workers, but they do it anyway to keep their labor and safety costs down. These companies know it’s illegal to have an unsafe workplace, but they know many undocumented workers won’t report them.

It is a terrible cycle that victimizes undocumented workers.

North Carolina companies who have more than three employees are legally required to provide workers’ compensation coverage for their entire workforce. When someone is hurt (or killed) on the job, they owe the injured worker (or their family) compensation for injuries, lost wages and medical care. Companies that break the law can face stiff fines, and their owners can face serious criminal charges.

Filing and collecting on a workers’ compensation claim can be challenging for any injured person. But it can be especially difficult for undocumented immigrants. That’s why it’s important to have an attorney and legal team whose sole focus is workers’ compensation working on your behalf to ensure your rights are protected and you get the benefits you deserve.

Workers’ Compensation for Undocumented Workers: A New Blog Series

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Today we begin a new series on the blog about the process of applying for workers’ compensation in North Carolina if you are an undocumented worker.

Despite what your employer, the insurance company or coworkers may have told you, if you are hurt at work, you are eligible for workers’ compensation benefits regardless of your immigration status.  These benefits include lost wages and medical treatment, as well as death benefits for family members of workers killed on the job.

Workers’ compensation cases involving undocumented workers can be challenging, and the other side will do everything they can to deny benefits. That’s why it’s important to have an experienced team of attorneys and paralegals working on your behalf. We have an entire bilingual team here at the Deuterman Law Group who are qualified to represent undocumented workers and who will work to get them the full range of benefits they are entitled.

In this multi-part series, we will cover the following:

  • An undocumented workers’ rights under the law
  • Whether you can be fired for filing a workers’ compensation claim
  • Whether you can be deported for filing a workers’ compensation claim
  • How immigration status affects a workers’ compensation claim</li>
  • Your rights to an interpreter in court and for medical appointments
  • What happens if you’ve worked using a different name or a borrowed Social Security number
  • Where to get medical treatment if you’ve been injured on the job
  • The importance of medical treatment
  • What to do if the company denies you are an employee
  • Determining whether you were an employee or an independent contractor
  • What happens if your employer doesn’t carry workers’ compensation insurance
  • The role of our firm investigator plays in collecting evidence for your workers’ comp claim
  • How to prove employment when no official records exist
  • What to expect during a workers’ compensation claim hearing or mediation
  • Death benefits available to the families of workers killed on the job
  • Wrapping up your claim and collecting your benefits

 

What happens at a Social Security Disability pre-hearing conference

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As we’ve explained here before, most people who apply for Social Security Disability are initially denied benefits. Many applicants must submit go through several appeals, waiting years and dealing with miles of red tape, before they get to the point where they can argue their case before a judge.

If you are denied initially, your best chance at being approved for disability benefits is during one of these hearings before an administrative law judge who works for the Social Security Administration. I think applicants who have an attorney represent them are much more likely to win benefits than those who do not.

The Office of Disability Adjudication and Review, ODAR for short, is the part of the Social Security Administration that holds hearings for those who have been denied Social Security disability benefits. Many people who have to go to a hearing are represented by an attorney, who helps gather evidence, explain the law and issues to you, and present the law and facts of your case to the judge.

But there are some applicants who do not have an attorney at this stage. The local ODAR, including ours in Greensboro, will sometimes schedule pre-hearing conferences for people who don’t have representation. If you get a notice of a pre-hearing conference, do not ignore it.  We also strongly recommend that you seek the representation of a qualified attorney who can help you prepare the strongest case possible.

At a pre-hearing conference, you will be asked about the medical treatment you have been receiving.  The burden to provide evidence to support your disability is on you, and so it is up to you to provide the medical evidence about your mental and physical conditions that keep you from being able to work.

ODAR will sometimes try to obtain these records itself, but in my experience, they often leave out important records.

During the conference, Social Security will also inform you of your right to be represented at your hearing.

Your representative does not have to be an attorney, but I always recommend that people get an attorney to represent them. Attorneys better understand the law and the regulations, in my experience, and can do the best job analyzing and presenting your case to the judge.

If your Social Security Disabilty claim has been denied and you are waiting for a pre-hearing conference or a conference, contact our office to find out how we can help.

Social Security Disability – Spotlight on Migraine Headaches

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Migraine headaches are a very common problem affecting many people. According to the Migraine Research Foundation, migraine headaches affect 38 million men, women and children in the United States.

Most of those afflicted with migraine headaches experience them infrequently, perhaps once a month. But for some they can be frequent and debilitating to the point where it is impossible to hold down a job. According to MRF, more than 4 million people have chronic daily migraines, experiencing at least 15 per month. Most people find it impossible to work or function during a migraine.

Migraine headaches can be the basis of a successful claim for Social Security Disability. It is important to get medical treatment, particularly with a neurologist, who is best trained to diagnose and treat migraines. Regular treatment with a neurologist will hopefully provide you some relief and will also document the nature and frequency of your migraines.

If you’ve ever experienced a migraine, you know that it is much more than just a “bad headache.”

Symptoms may include visual disturbances or auras, nausea, vomiting, dizziness, extreme sensitivity to sound, light, touch and smell and tingling or numbness in the extremities or face. They can last anywhere from four hours to three days.

Between doctor visits, it is a good idea to keep track of how often you are having severe migraine headaches. You can share this information with your doctor and also with the Social Security Administration as you file your claim for benefits. Use your calendar to document how often you experience migraine headaches and how debilitating they are. Just quickly jot down the symptom, length of the headache and any other specifics.

The chances of winning your Social Security Disability case depends on a lot of factors, including how frequent and how debilitating your migraines are and how well they respond to treatment.

I always recommend people with migraines enlist the help of an attorney to help them present their case to the Social Security Administration. Contact our office to find out how we can help.

 

Driverless Cars Raise Big Legal & Insurance Issues

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Driverless cars have the potential to make roads safer and save lives, according to the companies pursuing this cutting-edge technology. But when there’s no one at the wheel, big legal questions arise.

When a driverless can causes a crash, who is legally liable?

The Washington Post called that the “big question about driverless cars no one seems able to answer.”

At the Deuterman Law Group we’ve been watching this emerging market with particular interest as to how liability legislation will develop.

Google created a huge buzz when it first introduced the concept of driverless cars. More than 33,000 people are killed on the road every year, and 94 percent of those accidents are due to some type of human error, Chris Urmson, the technical director of Google’s self-driving car project told NPR.

“The good news is we can build software and hardware that can see the road and pay attention all the time and react more quickly and keep people safe on the road,” he said.

Now more and more companies are investing in this technology. Right now these vehicles are primarily in the testing phase in a very few cities, but it appears this may be the future of transportation.

In February, the National Highway Traffic Safety Administration acknowledged that the software, and not the human passenger, is legally the driver in these new types of cars.

What does this mean for liability and insurance coverage for these types of vehicles when they become available for purchase?

There are no clear answer yet.

Automakers could be held liable when driverless cars fail and cause crashes.

“This is largely a matter of product liability, several auto and insurance analysts said, not personal insurance — though as a 2014 study from the Brookings Institution suggests, determining where one type of coverage ends and the other begins will be tricky,” the Washington Post reported. “Basically, victims of a collision could (directly or indirectly through their own insurers) try to seek damages from a driverless-car maker for manufacturing a vehicle that didn’t operate as it was supposed to.”

So what happens if you buy a driverless car? Would your car insurance policy or rate change? Possibly, but no one really knows yet what these policies would look like or how much they would cost.

These cars will have different levels of automation, so insurers likely won’t have a standard policy that applies to all driverless cars. And while the federal government has weighed in on these vehicles, many states have not. “And it’s their laws that really matter to insurance companies,” the Washington Post reported, based on an interview with Wayne McOwen, executive director of the District of Columbia Insurance Federation.”That’s because it’s the states that ultimately issue the drivers’ licenses that insurers use to evaluate risk.”

Indeed, there’s a lot to ponder about driverless cars. Will they make our roads safer? Who should be allowed to operate them? How should these types of vehicles be insured? Who should legally responsible when these cars are involved in crashes?

What do you think?

Social Security Disability – Spotlight on Osteoarthritis

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I have been asked several times recently, “Can I be approved for Social Security Disability based on osteoarthritis?”

The answer is that many people are approved for Social Security Disability and Supplemental Security income based solely on osteoarthritis. However, like almost all medical conditions that can form a basis for a Social Security Disability claim, the diagnosis of osteoarthritis alone is not enough.

The most important factors are

  • where you have the osteoarthritis
  • how severe it is
  • how well you have responded to treatment
  • how severely it affects what you are able to do.

Osteoarthritis is very common, especially as we age. It can affect many different joints in the body, but the joints that I see most often in connection with disability cases are the knees and the hips.

It makes sense because knees and hips are some of the joints that help us stand, walk, stoop, and generally help us get around, which are functions important to most jobs. Fortunately medical treatment can often alleviate or at least improve symptoms of osteoarthritis, but this is not true for everyone.

In addition to medications and lifestyle changes (such as losing weight) sometimes surgery can improve your ability to function, such as artificial joint replacements.

When it comes to Social Security disability, how severe your osteoarthritis is, how well it has responded to treatment, and how it affects what you are able to do on a daily basis are some of the most important factors that the Social Security Administration will consider.

If you are unable to work because of osteoarthritis and are considering applying for Social Security Disability, it is very important that you are getting medical treatment to document the nature and extent of your osteoarthritis, and to hopefully get you some relief from your symptoms.

The Social Security administration will consider what you say about how your osteoarthritis affects you, but they often give more weight to what your doctor says about the nature and severity of your medical problems.

Getting approved for Social Security Disability when you have COPD

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In my last post I talked about how COPD is evaluated in people seeking Social Security Disability benefits and Supplemental Security Income benefits.  I also talked about how you can meet a “listing” for COPD, but noted that often times people cannot show that they meet the listings.

Today, I’d like to talk a little bit about how you can still be approved for SSDI and SSI benefits on the basis of COPD.

If you do not meet a listing, the evaluator has to determine what’s called your “residual functional capacity” and then compare that to the types of jobs you have done in the past and other jobs available in the national economy to decide if you are disabled.

Your residual functional capacity is basically the most you are able to do despite your COPD and any other medical and psychiatric conditions you may have. When determining your residual functional capacity, the evaluator is supposed to consider how the symptoms you have from COPD affect your ability to function day-to-day, to determine if your COPD would prevent you from doing any full-time job.

In my experience, people with COPD will often have environmental limitations on their potential work. For example, some people have to avoid any exposure to dust, smoke and fumes because it worsens their COPD.  This can prevent them from working in certain environments, such as in industrial settings with smoke and fumes or in dusty outdoor settings such as construction.

Some people with COPD cannot tolerate very hot or cold temperatures, or extreme humidity, because of how it affects their COPD. These limitations could prevent them from working any job outside, as well as inside jobs where they could be exposed to heat or cold.

In addition to environmental problems, some of the most debilitating limitations from COPD can be exertional.  Exertional limitations  affect your ability to sit, stand, walk, lift, carry, push, and pull in the course of a workday.

COPD can cause you to be short of breath and unable to continue walking after just a few minutes. It can also prevent you from lifting heavy objects, and even from standing for long periods of time.

It is important to show the evaluator how your COPD affects your functional abilities on a day to day basis in these and other areas, and ultimately how your COPD prevents you from being able to work a full-time job.  Environmental as well as exertional limitations are often what prevent people with COPD from being able to work.

I always recommend that people with COPD enlist the help of an attorney to help them present their case to the Social Security Administration. Contact our office to find out how we can help.

Social Security Disability: Spotlight on COPD

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Chronic Obstructive Pulmonary Disease is one of the most common lung diseases, and it can make it very hard for you to breathe.

Sometimes the symptoms of COPD are severe enough to prevent you from working any full time job, causing you to have to file for Social Security Disability Insurance benefits, also known as SSDI. You have to have worked and paid enough into the system through paying taxes to get SSDI benefits.

However, even if you do not have a work history or do not have enough “work credits” to get Social Security Disability Insurance benefits, it is still possible to file for Supplemental Security Income benefits, or SSI,  on the basis of COPD. I’d like to talk a little bit about how claims for both SSDI and SSI on the basis of COPD are evaluated.

The Social Security Administration uses a five step sequential analysis when deciding claims that is honestly more confusing than it needs to be. In a later blog post I will talk about these steps more in depth.

For now, I will summarize Step 1 as asking if you have a severe medical problem. (If yes, go on to Step 2).

Step 2 asks if you are working and making more than the limit. Assuming you are not, you go onto Step 3, which is when the Social Security Administration looks to see if you meet a “listing,” which is a prescribed set of criteria that is different for different medical conditions. If you meet a listing, you should be approved for benefits. But that’s not the only way for you to be approved for SSDI or SSI benefits for COPD.

There is a listing for COPD, Listing 3.02.

It specifies different values a person could have based on standardized tests – pulmonary function studies (the most common), exercise blood gas studies and carbon dioxide diffusing capacity.

To determine if you meet a listing, you have to compare your results on these tests (along with your particular circumstances, such as your height) to the values in the listing.

For example, according to the listing, a person with COPD who is 5 feet 8 inches tall (or 68 inches) would have to have an FEV1 value on a pulmonary function study (also called spirometry) of 1.45 or less.

Sometimes people are unable to show that they meet the listings because they have not had these tests, which can be very expensive. The listing criteria are also pretty difficult to meet. It is possible to be debilitated and unable to work because of your COPD, even if your test results do not meet the listing criteria.

If you are not found to meet the listings, it is still possible to be approved for Social Security Disability benefits. I will talk a little more about this in my next blog post.

Hospitals Fail to Protect Nurses from Injuries

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You probably don’t think of nursing as a dangerous profession.

But each year, more than 35,000 nurses, orderlies and nurses assistants suffer back and arm injuries that are serious enough that they have to miss work, according to surveys from the Department of Labor’s Bureau of Labor Statistics (BLS).

A recent NPR series found that nursing employees “suffer roughly three times the rate of back and other musculoskeletal injuries as construction laborers,” all in the course of their everyday job duties — lifting and moving patients.

These are not minor injuries, but life changing ones that may require multiple surgeries and a cocktail of prescription drugs and pain medications. Many injured nurses lose their careers because of their injuries and will endure chronic pain and mobility issues for the rest of their lives.

Research has shown that there’s no safe way for nurses to move patients manually without risking serious injury to themselves. 

“The bottom line is, there’s no safe way to lift a patient manually,” William Marras, director of The Ohio State University’s Spine Research Institute, which has conducted landmark studies on the issue, told NPR “The magnitude of these forces that are on your spine are so large that the best body mechanics in the world are not going to keep you from getting a back problem.”

Yet hospitals continue to stress the same safe patient handling techniques and protocols when there’s a better solution that would prevent a majority of back and arm injuries in nurses. There is equipment available to help nurses move patients safely, without risk of injury, but few hospitals are wiling to invest money in these lifts, hoists and other devices, NPR found.

And only 10 states have comprehensive programs specifically designed to protect nursing staff at hospitals. North Carolina is not one of them.

 

 One of the nurses profiled in the NPR series worked at Asheville’s Mission Hospital. Though her injury clearly happened on the job, the hospital tried to deny her workers’ compensation benefits by claiming it happened while she was at home. You can listen to that story here

Listen to the full NPR series about nurses and workplace injuries here.

Workers’ comp fraud? The truth about “questionable claims”

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If you believe the insurance industry, the number of so-called “questionable workers’ compensation claims” is up 7 percent from a year ago and 38 percent from 2011, while the total number of workers’ comp claims has decreased.

A new report from the National Insurance Crime Bureau claims more people are faking workplace injuries, lying about or exaggerating their symptoms or filing workers’ comp claims for injuries that did not take place at work. A few newspapers, including the Los Angeles Times, have even run with the report, which seems to indicate that workers’ comp fraud is on the rise.

But the report and its findings can’t be trusted because the data about these so-called “questionable claims” comes directly from the National Insurance Crime Bureau’s membership — nearly 1,100 insurance companies.

When insurance companies don’t want to pay a claim, they can categorize it as questionable and refer it to NCIB for review and investigation. In almost all cases, it’s a deny-and-delay tactic that has little to do with the actual merits of the workers’ comp claims.

The NCIB report on workers’ comp fraud is based on those cases that its member insurance companies review for further investigation, in hopes of not having to pay benefits. The NCIB report conveniently fails to mention how many of “questionable claims” actually ended up being fraudulent or non compensable claims.

And the reason is simple. The vast majority of workers’ comp fraud is perpetrated by employers, not injured workers. 

But the insurance industry uses reports like this, as well as advertising and other heavy-handed tactics, to shape public opinion about people who file for workers’ comp or Social Security disability. It’s the same strategy they used to create the myth of the frivolous lawsuit, so effectively dispelled in the film, “Hot Coffee.”

 

 

Be wary of these so-called reports, especially when the source of the data is the insurance industry. These companies have a huge financial incentive to deny claims and to convince the voting public that certain states need stricter workers’ comp laws.

I noticed an interesting pattern in the “questionable claims” data from the NCIB. States where workers’ comp reform has been on the legislative agenda recently had the biggest increases in “questionable claims.”

Coincidence? Or cooking the numbers to convince legislators support their reform bills? 

You decided. You can view the entire NCIB report here