The insurance company sent me a medical release – should I sign it?

April 17, 2015 by · Comments Off
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I get this question from injured workers a lot. We like to think that our health information is completely private and protected by the HIPPA laws; however, if you read this article further, you will learn that workers’ compensation is a category outside of the HIPPA laws and is treated differently.
The truth is, if you want workers’ compensation medical benefits, the carrier DOES have the right to gain access to your medical health records (even medical records prior to the accident and non-workers’ comp doctors you have seen) to investigate the claim and the medical treatment the doctor is recommending. Below, I clarify some of the legalese in parenthesis and delete some portions of the law to make this a little easier to understand.
Section 164.512(l)–Disclosures For Workers’ Compensation
“we include a provision that clarifies the ability of covered entities (Medical Providers) to disclose protected health information without authorization (by the patient) to comply with workers’ compensation programs that provide benefits for work-related illnesses or injuries without regard to fault. Although most disclosures for workers’ compensation would be permissible under other provisions of this rule, particularly the provisions that permit disclosures for payment and as required by law, we are aware of the significant variability among workers’ compensation and similar laws, and include this provision to ensure that existing workers’ compensation systems are not disrupted.
Under this provision, a covered entity (Medical Providers) may disclose protected health information regarding an individual to a party responsible for payment of workers’ compensation benefits to the individual, and to an agency responsible for administering and /or adjudicating the individual’s claim for workers’ compensation benefits. ”
“The Virginia Workers’ Compensation Commission has interpreted this provision in several decisions. The Commission has held that the parties in a workers’ compensation proceeding have the right to subpoena and review ALL medical documents which are, or may be, related to the claimant’s condition, under the Virginia Workers’ Compensation Act and the exception found in Code § 32.1-127.1:03(C) . Additionally, Code § 65.2-607(A) provides a waiver of the physician/patient privilege in workers compensation cases. A more complete discussion of these issues can be found in the Commission’s decision Randall v. SHS International, Inc., VWC File No. 214-26-37 (March 29, 2004) . See also Scarafino v. CVS Drugs, VWC File No. 206-30-17 (July 8, 2004)”
To view the entire article by the Commission, follow this link.
As you see in the last paragraph from the Commission’s website, even if you don’t sign the medical release, the carrier may issue a Subpoena through the Commission and gain access to this information without your consent – the difference really boils down to timing. If you sign the release the insurance company will get access to this information more quickly rather than if they have to go through the formal court process – this will usually delay the processing of your claim significantly. During the delay, I am sure the insurance company will not pay for your medical care or your weekly check.medical release icon

If you are not sure about signing a medical release or if the release is asking for more than your medical records (which they often do ask for things like tax records, credit reports and so on) I would recommend talking to an attorney’s office before you make your final decision.

If you would like more information on the Virginia Workers’ Compensation system, order my book, “The Ultimate Guide to Workers’ Compensation in Virginia” by clicking this link, or call our office today (804) 755-7755.

~Author
Michele Lewane, Esq.

The Top 4 Mistakes to avoid during a Deposition

April 10, 2015 by · Comments Off
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Basically, you will be sitting down with the attorney for the insurance company, your attorney (if you have one) and a court reporter who will type a transcript of all the testimony given that day. Testimony is given under oath and will be presented at the hearing to determine whether or not an individual is entitled to workers’ comp benefits.
Mistakes during a deposition can be extremely costly so I have put together a list of thing to avoid for injured workers who may be faced with a Deposition

1) No LYING! Never ever tell a lie during your Deposition. This is testimony given under oath and more often that not, the insurance company and defense attorney have been dealing the workers compensation system longer than you have and they will uncover the truth. Lying destroys your credibility and could even get you into other trouble later on down the road (fraud!). Like they told us grade school, “honesty is the best policy”!
2) Don’t show up unprepared! Review your answers to the Interrogatories you have already answered (many of the questions you will be asked will come straight from this document). It is also important that you review your medical records, accident reports and recorded statements before the deposition to make sure you remember everything.ppl in a depo
3) Don’t talk too much! What I mean is, don’t volunteer information that has not been asked of you. Answer the question and nothing more, if the defense attorney wants more explanation, he or she will ask you to elaborate. This is not the time to plead your case or give a speech about how this injury has impacted your life. Your job at this phase of the litigation process is to answer the questions only.
4) No guessing! Remember, this is testimony under oath, you can’t swear to something you are not certain of. Your answers should only consist of things you are certain about. If you don’t know the answer, it is ok to say “I don’t know”.

If you would like more information on the Virginia Workers’ Compensation system, order my book, “The Ultimate Guide to Workers’ Compensation in Virginia” by clicking this link, or call our office today (804) 755-7755.

~Author
Michele Lewane, Esq.

Healthcare workers suffer neck and back injuries in record numbers

April 3, 2015 by · Comments Off
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I represent many folks who are injured while working in the health care industry. It is so sad to see how badly injured some people are simply by doing their job and caring for others.

I read a blog today from NPR about work place injuries for hospital employees, nurses and other health care providers. It is staggering how many people are injured in the health care field every year, but what makes it worse is that many hospitals out there are using techniques that are considered to be outdated due to the advances in modern technology. Many hospitals simply are understaffed or underfunded and can’t afford to make the necessary updates to their facilities and training programs; and nurses and other employees are paying the price!nurses

Many people who are injured while working in health care suffer serious injuries and do not recover to the point that they can return to their job and if they are one of the “lucky ones” who does recover enough to go back to work, chances are, they will likely get injured again – or they may not have a job to go back to.

I’ve listed a few interesting snippets I found within the blog:

“As NPR has reported in our investigative series Injured Nurses, nursing employees suffer more debilitating back and other injuries than almost any other occupation — and they get those injuries mainly from doing the everyday tasks of lifting and moving patients.”

“As NPR’s Injured Nurses investigation reveals, hospitals are not generally required to make their injury statistics public, so it’s difficult to compare them. NPR also found that officials at most hospitals across the country have failed to do much about the epidemic of back and other injuries that affect their nursing staff.”

“Nursing employees have very likely been getting hurt moving and lifting patients for as long as there have been nurses and patients. But studies by the U.S. government and university researchers in the 1990s began showing that hospitals can prevent many of those injuries, if hospital administrators invest enough time and money. They have to buy special equipment to move patients, such as powered ceiling hoists, and they have to conduct intensive training for the staff.”

You can find the entire blog here.  If you work in the health field, I strongly recommend taking a read through this.

This is why you need to protect yourself! You can’t count on your employer to protect you so YOU NEED TO BE INFORMED! Make sure you know what steps to take if you get injured – who you need to report it to and where you can get medical care if your injury needs treatment – knowing these things before an injury happens can make things go a lot smoother if you do get injured at work.

If you would like more information on the Virginia Workers’ Compensation system, order my book, “The Ultimate Guide to Workers’ Compensation in Virginia” by clicking this link, or call our office today (804) 755-7755.

~Author
Michele Lewane, Esq.

KidsChance of Virginia – Scholarships for the children of injured workers

March 27, 2015 by · Comments Off
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I have written about KidsChance before – it is an program that is very near and dear to my heart! Click here for my KidsChance Announcement from back in July 2013, I’m so proud to be a part of such a wonderful organization! KidsChance of VA

For those of you who may not know, Kids Chance is a program that assists the children of injured workers by giving them the financial means to pursue a higher education. Let’s face it, anyone who has suffered the lasting effects of a work injury knows all to well the devastating effects the system can have on your finances.

The deadline for applying is rapidly approaching!! Applications for scholarship must be received by KidsChance no later than May 1, 2015. Don’t delay!

College Students-GraduationQualifications:
• A student between the ages of 16 and 25
• A child of a parent whose work related injury caused a significant decline in family income and circumstances
• A student who plans to pursue a post-secondary or trade school education in the Fall semester of 2015

Know someone deserving of a Kids Chance scholarship? Pass on this info or direct them to the website at www.kidschanceva.org. You can also follow this link to apply online or you can download a printable version of the application.

Good luck everyone!

~Author
Michele Lewane, Esq
Kids Chance Vice President, Virginia Chapter

Should I settle my Workers’ Compensation claim?

March 20, 2015 by · Comments Off
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People often contact my office because they are not sure if they want to settle their workers’ compensation claim. There are major differences on how to move forward on your case depending on if you are keeping your Lifetime Medical benefits or if you decide to settle your case. BE INFORMED! If you are considering settling your case, make sure you understand what you are giving up and what you are gaining; there are pros and cons either way. Make sure you understand the differences between the two so you can be comfortable with the decision you make and there are no surprises later on.

I have listed below some of the good and bad of either option. If you have additional questions or would like to discuss his with someone, please feel free to contact my office

Settlement -legal-settlement green men

 Some of the Good:
*No more waiting for approval – Once you settle the case, you are in the driver’s seat, no more waiting for approval from the insurance company because they are no longer involved! You decide what treatment you do or do not want.
*You get to see any doctor you want – After the case is settled, you are in charge of your medical care. Don’t like your doctor? No problem, find a new one who you are comfortable with. Get a second opinion. You are the sole decision maker in your medical care after you settle the claim.
*You get a lump sum of money- Instead of the insurance company paying the doctor for medical care, they pay you that money. Use it for medical care or any other thing you want. You have total freedom of choice.

Some of the Bad:
*Giving up Lifetime Medical coverage – When you settle a case for a lump sum, you give up your medical benefits and take the money instead. From this point forward, the medical care becomes the responsibility of the injured worker.
*Liens on settlement – Medicare, Social Security, child support and Medicaid have liens on the settlement money. Medicare goes so far as to say it has an interest in the workers’ compensation settlement if there is a reasonable expectation of you receiving Medicare within 30 months after settling your workers’ compensation claim. This can make the settlement process long and drawn out because approval from one or more entity may be required. You most definitely need to talk to an attorney if you are in this situation and are interested in settlement. The paperwork needs to carefully written to protect your interests.
*Resignation - Resignation of your employment is typically required as part of the settlement terms. However, if you dislike your job or if you are injured to the point that you can never return to your pre-injury employment, this may not be an issue for you. This is an insurance issue not an employment issue. The insurance company doesn’t want to pay you a lump sum of money for your hurt back and then you hurt your back at work the very next day and they are stuck with a new workers comp injury.
*Settlements are final – Once you settle a case, there is no going back to add this or that. You need to make sure you get it right on the first try!

Lifetime Medical Benefits
Some of the Good:
*The insurance company pays for your medical care- you don’t have co-pays and deductibles to worry about. You don’t have to stay with your employer to keep the insurance. The insurance basically covers the bills.
Some of the Bad:
*The burden of proof is on you forever– Just because the doctor says you need a specific treatment or diagnostic test does not mean that the insurance company will approve it. This means that even though you have the Lifetime Medical benefit, even if you have an Order, you still have to show that the current treatment requested is reasonable, necessary and related to the workplace injury. The insurance company does not assume anything.
*Medical providers generally require the insurance company to pre-approve your treatment – Medical providers have been burned by workers compensation insurance companies too many times. Having Lifetime Medical Benefits does not mean that you can just go to the doctor whenever you want. The Insurance carrier still has to pre-approve everything and they can (and will) deny anything that they believe does not meet the standard of reasonable, necessary and related to the workplace injury. This process slows down medical treatment.
*You may not get lost wages when you are out of work for surgery– Lifetime Medical coverage does not always mean that you are entitled to lost wages. If the doctor takes you out of work for a medical procedure, you may be off of work without pay. You may even lose your job if you are out of work too long. This is a case by case situation depending on your Award Orders for lost wages. Sadly, this happens more often than you might think. I get tons of calls from people who have surgery 5 years after their injury and they are not eligible for lost wages because too much time has lapsed since they last collected lost wages pursuant to an Award Order.
*Litigation – If the insurance carrier denies treatment, you will likely be going to a hearing so the Commission can determine whether the requested treatment should or should not be covered under your claim. This is expensive, time consuming and delays treatment for injured workers. However, it is within the insurance carrier’s rights to take a treatment issue before the Commission for a ruling. It is very common to go to a hearing 3 or 4 or more times with disputed medical treatment and tests. Like I said earlier, the burden of proof is on you!

Remember folks, this is all generalized information, to get specifics about your particular situation you should speak with an experienced attorney.

If you are dealing with a work injury or if you would like more information on the Virginia Workers’ Compensation system, order my book, “The Ultimate Guide to Workers’ Compensation in Virginia” by clicking this link, or call our office today (804) 755-7755.

Author
Michele Lewane, Esq.

Michele Lewane, Super Lawyer!

March 16, 2015 by · Comments Off
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We are thrilled to announce that our very own principal attorney, Michele Lewane has been selected to be included in the listing of Super Lawyers!

superlawyers

The selection process is not a simple one and includes a patented, multi-phase selection process of peer nominations, evaluations, and independent research. Candidates are evaluated on twelve indicators of peer recognition and professional achievement, and then selections are made yearly, on a state-by-state basis.

michelle_pic_sm

The Super Lawyer distinction is given through an impartial third-party rating system, and further demonstrates a lawyer’s credibility to both attorneys and consumers. Bar associations and courts countrywide recognize the Super Lawyer selection process as a comprehensive, detailed, and ethical process of acknowledging lawyers who have demonstrated substantial achievements within their field.

 

Congratulations on this accolade, Michele! We’re proud of you.

 

See her full listing on Super Lawyers, here

I’ve had it! I want to fire my attorney!

March 13, 2015 by · Comments Off
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I get a lot of calls from injured workers’ who are frustrated: When I say frustrated, I mean ready to snap. Some of them have an attorney helping them with their claim, some do not, but most of the complaints I hear are similar.

Let me be clear folks, workers’ compensation is not a fun process. Whether you have an attorney on your side or not, this process takes a toll on peoples nerves, finances, mental status, relationships – not to mention the physical trauma that has already been done! Truth is, this is no picnic for anyone.

The most common complaints I hear from injured workers are:
• This process is taking FOREVER
• My attorney is not doing anything for me
• I never hear from my lawyer
• I’m not a faker, why am I being treated like a CRIMINAL
• I don’t agree with what my lawyer is telling me
• I don’t feel like this is right
• This injury has destroyed my life

There are some hard truths that injured workers’ need to know, and as an attorney, it is my job to give you the cold hard truth without the candy coating.

1) This process takes a long time because the state allows the insurance carrier time to “try” and get claims resolved before heading to court. There are waiting periods and some processes that have no time limit at all (like settlement, negotiations can go on indefinitely!).
2) Often times, you won’t hear from your attorney during waiting periods or during the standard negotiation process. I can’t speak for other lawyers, but if I called all of my clients weekly to tell them that there is “no news”, I would not be a very good lawyer because all of my time would be spent on the phone instead of doing “lawyer work” and moving along the legal and paperwork processes for them.Attorney at law
3) Workers’ compensation does not assume you are faking, however, it does not assume you are an honest person either. The “burden of proof” is on you (and your attorney if you have one) to prove your case. Basically, workers’ compensation has standards and in order to get benefits you have to meet those standards; regardless of your moral standing or if you agree with them.
4) If you don’t agree with what your lawyer is telling you, do me a favor and ask yourself “why?”. If it is because you have a legal education and know better, then fine, more power to you! However, if it is because you friend had a similar injury and things went differently, you need to take a step back. Workers’ compensation is different for EVERYONE! Even if you have the same injury your claim is different than all the others. Workers’ comp benefits can be based on a whole array of factors: average weekly wage, impairment rating, the treatment your doctor is recommending, your ability to return (or not to return) to the workforce. If you don’t agree with your attorney it may be because of these factors, ask for clarification before you jump ship. If you attorney tells you something you don’t agree with, they should be able to tell you the “why” behind it.
5) Workers’ compensation is not a perfect remedy. I talk to people all the time who feel that these benefits have not made them “whole”. The hard truth is, it rarely does completely restore people to the level of health and financial well being they may have enjoyed before they were injured. There is no consideration in this system for pain and suffering or for the repossession or bankruptcy an injured workers may have endured while going through this process. The problem here is that if the law does not allow for it, your attorney can’t ask for it, period. I would LOVE to get all of these types of benefits for my clients but the state of Virginia, with it’s present laws, will not allow me to even ask for this!

The final answer is yes, you are allowed to terminate your attorney at anytime. However if you choose to do this, the attorney who has been terminated may be able to put a lien on your case and this could make your case less attractive to other attorneys in the future because if there is a lien on the case, the new attorney is working on a discounted fee. Changing attorneys can also slow down what is already a very long process. Also, if you have a competent attorney who has given you a reasonable explanation and you chose to part ways with him or her because you don’t agree or don’t like the outcome, you might get the very same information from the new attorney!

If you would like more information on the Virginia Workers’ Compensation system, order my book, “The Ultimate Guide to Workers’ Compensation in Virginia” by clicking this link, or call our office today (804) 755-7755.

~Author
Michele Lewane, Esq.

The Top 4 Reasons to Hire a Workers’ Compensation Attorney

March 6, 2015 by · Comments Off
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1) Time Limits – If you need to ask for benefits or make changes to the benefits you are currently receiving; the state of Virginia has strict time limits in order for you to do so (also called the Statue of Limitations). Many injured workers are not aware of these cut offs and the insurance carrier does not have to give you any warning about your benefits being cut off soon because you have failed to do something. An experienced Workers’ compensation attorney will make it their business to ensure that your requests are filed within the appropriate time limits so your benefits can be protected.

2) Overlapping benefits – Depending on the situation, some people may receive workers’ compensation benefits while receiving other benefits or they may be getting different benefits while their workers’ compensation claim is being litigated through the hearing process. These additional benefits (like short term disability, long term disability, retirement, social security or unemployment) can affect your claim and if you are collecting other benefits or intend to apply for other benefits, I strongly recommend that you speak with an attorney so you can make sure you are setting yourself up for the best possible outcome.Judge with questions

3) Hearing – Many people try to go it alone when it comes to a hearing – I typically recommend against this because most injured workers don’t know what to expect at a hearing, what evidence they are or are not allowed to present. The other issue is, if you go to a hearing without an attorney and lose, it will be VERY difficult to find an attorney after that point because the attorney can’t change what has already happened.

4) Settlement – Do you know how the insurance carrier determines the value of your case? If you are like most injured workers out there the answer is no – and the insurance company depends on this! Sadly, this is how they persuade injured workers to settle for less than their claim is worth so the insurance company can keep more money in their pockets; this is an unfortunate but sad reality.

If you would like more information on the Virginia Workers’ Compensation system, order my book, “The Ultimate Guide to Workers’ Compensation in Virginia” by clicking this link, or call our office today (804) 755-7755.

~Author
Michele Lewane, Esq.

Do you have a self-administered Medicare Set-Aside fund?

February 27, 2015 by · Comments Off
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If you are an injured worker who is on Medicare, filed for Social Security or otherwise eligible for Medicare, when you settle your workers’ compensation claim, you and the insurance carrier have to get approval from Medicare. This is often a lengthy process and often times the entity overseeing the settlement for Medicare (CMS) will require a self-administered Medicare Set-Aside fund. This means that a portion of the injured workers’ settlement money must be used for medical care related to the work injury and once those funds have been exhausted, Medicare can pick up the rest of the bills. You will get the funds and place the money in an interest bearing account to use for your medical care that Medicare would have paid for.Warning sign

Injured workers’ who have self-administered Medicare Set-Aside fund need to keep excellent records in order to ensure that they are in compliance with the self-administered Medicare Set-Aside fund. CMS has now come up with a Tool-kit for injured workers explaining this process and breaking down what records and expenses injured workers need too keep track of. This is a great tool for anyone who has self-administered Medicare Set-Aside fund stemming from a workers’ compensation injury. To view the Took-kit click on this link.

If you would like more information on the Virginia Workers’ Compensation system, order my book, “The Ultimate Guide to Workers’ Compensation in Virginia” by clicking this link, or call our office today (804) 755-7755.

~Author
Michele Lewane, Esq.

Frequently Asked Questions about Structured Settlements

February 20, 2015 by · Comments Off
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Generally, I am not a fan of structured settlements since a client’s funds are restricted and if and when circumstances change, the annuity does not change with the changing needs. In workers compensation cases, unlike personal injury claims, you can’t sell your structured settlement. It is part of an Order where the injured worker is the beneficiary but NOT the owner of the annuity. With that being said, many times a partial structured settlement (a lump sum of cash and an annuity giving monthly income for life), can be something worthwhile for my clients to consider.

Why should one consider a Structured Settlement?money roll

 Tax-Free Benefits. All payments are tax-free. The IRS code allows for the tax-free accrual of interest on the sum of money used to fund your periodic payment. As a result, you receive more money than investing it yourself.

 Future Guaranteed Payments. Unlike a “cash-only” settlement, a Structured Settlement will provide guaranteed benefits at specified payment dates to assure you of financial security. For example, you can receive monthly payments for life or for a specified period of years along with future lump sums of cash at designated intervals.

 No worries about having to manage a large lump sum of cash on your own

 Flexibility to Meet Individual Needs. A Structured Settlement can be designed to meet your needs. You may wish to provide for future education expenses, supplement a retirement fund, or simply provide for general monthly expenses. The plan can be tailor-made to meet your objectives.

Why is a Structured Settlement a better investment option than a “cash-only” settlement?

 No Tax Liability on Earnings. If you accept a “cash-only” settlement and invest it yourself you would most likely incur tax liabilities on the income produced by your investments. Private investment income is simply not eligible for the tax-free benefits available under the I.R.S. Code.

 No Fees or Expenses. Also, in contrast to private investments, there are no brokerage fees or expenses when selecting a Structured Settlement.

 Low Risk. In addition, Structured Settlements are substantially risk free. Investments in stock and other equities can be speculative, carrying with them the risk of loss. Even less speculative investments such as bonds and certificates of deposit, are subject to the risk of interest rates going up and down.

If you are settling your workers’ compensation case or if you would like more information on the Virginia Workers’ Compensation system, order my book, “The Ultimate Guide to Workers’ Compensation in Virginia” by clicking this link, or call our office today (804) 755-7755.

Michele Lewane, Esq.

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