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  1. #1
    Join Date
    Jun 2017
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    3

    Default I Know You Are Covering This Up

    Is there anything that I can do since I KNOW my employer is covering my injury up? They asked my witnesses off the record how they felt the day of and days after, but didn't mention it at all and my claim got denied because of "a pre-existing condition" which I still don't know what that condition is. Any help would be appreciated. I can't find an attorney to help me and I'm on my own. I've already protested the decision and sent in my medical reports and SDS and waiting to see if they get their 90 day extension.

  2. #2
    Join Date
    Oct 1971
    Posts
    5,049

    Default Re: I Know You Are Covering This Up

    At the end of the day, it comes down to objective medical evidence, those witness statements are used to support the medical findings.
    Your claim was denied because of the medical evidence, not what those witnesses said, that's a small part of the evidence.

    I find it hard to believe you don't know what the condition is, that would be hard to keep secret and there's no reason why they would.

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  3. #3
    Join Date
    Jun 2017
    Posts
    3

    Default Re: I Know You Are Covering This Up

    The workers comp agency never said what the pre-existing condition was. They didn't submit any medical reports that suggest it was something from my past and couldn't give me an explanation other then it was an already existing condition. It's very rare that I go to the hospital. I could count on one hand how many times I have been to a doctor in the last past 10 years. The medical report after what happened said "lung disorder due to breathing in vapors or fumes". It's ironic that two other individuals would have the same problems as myself after that work day.

  4. #4
    Join Date
    Oct 1971
    Posts
    5,049

    Default Re: I Know You Are Covering This Up

    They'll have to present their case to the judge, if it's frivolous, you'll prevail.
    It's not uncommon for the carrier to deny a claim on a frivolous basis then lose when it comes to the hearing - it won't be the first time.
    It sounds like they're trying to pull a fast one to see what they can get away with.

    Consult and retain a lawyer - let him deal with the clowns.

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  5. #5
    Join Date
    Feb 2007
    Location
    831 East Morehead St., Ste 355, Charlotte, NC 28202
    Posts
    3,762

    Default Re: I Know You Are Covering This Up

    You need to get a copy of all of your relevant medical records.

    Are you, or have you ever been, a smoker? If so, that may be what they are referring to. Or do you have asthma? COPD? Bronchitis? Ever in your life?

    You will need a lawyer to help you with this. The lawyer will want to see your medical records so go ahead and get them from the providers.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney and Board Certified Specialist in NC Workers' Compensation Law

  6. #6
    Join Date
    Jun 2017
    Posts
    3

    Default Re: I Know You Are Covering This Up

    I can't find anyone to help me and I'm not joking about that. Is there anyway if they get their 90 day extension, that I can't request to get evidence supporting that it was a pre-existing condition? I'm trying to stay one step ahead of them and I know that they will bring up that it depends on how far you have to be away from the chemical, which I already have a rebuttal for that. Yeah I'm a smoker. I've never been diagnosed with asthma, COPD, or bronchitis. I was hoping that my one witness would write a statement since he doesn't smoke, but he's afraid of retaliation from our employer. I have the medical reports from my last three visits and will be going to a pulmonary specialist to see if they can hopefully find out what's wrong. Sucks being in pain and having problems for almost 8 months because of this.

  7. #7
    Join Date
    Oct 1971
    Posts
    5,049

    Default Re: I Know You Are Covering This Up

    jw_hhs03
    I was hoping that my one witness would write a statement since he doesn't smoke,
    That may help but it won't win your case.
    You need objective medical evidence to support your claim that your condition was caused during the course of your employment.
    It doesn't matter if you have a thousand people write letters if your doctor doesn't support your claim.

    You are the claimant, it's your responsibility to present objective evidence to support your claim
    That employer doesn't have to prove anything - they can sit there and not say a word and still prevail.
    What does your doctor say - that's the only thing you need to worry about.

    PROCEDURE IF CLAIM IS DENIED BY EMPLOYER:
    At the hearing, the employee must prove through testimony, witnesses and medical reports, that the injury or disease and disability were caused by the work. If the employee was released to light work, then the employee must submit evidence that he/she has actively sought work. This includes seeking employment at the pre-injury employer, registering with the Virginia Employment Commission and listing dates and places where applications for work were made.
    http://www.vwc.state.va.us/sites/def...rs-Guide_0.pdf

    Because you are a smoker, they will claim that caused your condition - you only have to prove that more likely than not (51% chance) that the condition was caused during the course of your employment.
    I would advise that you claim the conditions at work exacerbated your smoke related condition - go ahead and admit you're a smoker and never had a problem.
    A pre existing condition can't be considered in your state, it's irrelevant - as long as the injury was caused during the course of employment you should be entitled to full benefits.

    HOW SHOULD IME DOCTORS APPORTION FOR PRE-EXISTING IMPAIRMENT USING THE AMA GUIDES AND RULE 20 GUIDELINES?
    In West Virginia, Workers’ Compensation statutes provide that an employee who has a definitely ascertainable impairment resulting from an occupational or non-occupational injury, disease, or any other cause, whether or not disabling, and the employee thereafter receives an injury in the course of and resulting from his employment, the prior injury and the effect of the prior injury and aggravation shall not be taken into consideration in fixing the amount of compensation or impairment allowed by reason of the subsequent injury. The statute provides that compensation, i.e., a permanent partial disability impairment rating, shall be awarded only in the amount that would have been allowable had the employee not had the pre-existing impairment.

    No provision in this particular code section requires that the degree of pre-existing impairment be definitely ascertained or rated prior to the injury received in the course of and resulting from the employment or that the benefits must have been specifically granted or paid for the pre-existing impairment. Additionally, the degree of pre-existing impairment may be established at any time by competent medical evidence. It is not clear in the rules or statutes whether a reduction of an award for a pre-existing degenerative impairment should be calculated after the application of the tables in Rule 20 for determining impairment in regard to the lumbar, thoracic, or cervical spine or before the application of these tables.
    http://www.sjlaboremploymentblog.com...20-guidelines/

    Because you are unfamiliar with the procedures of a hearing, the court will show leniency (and maybe compassion if you do it right.)
    Open with a summary - explain you never had a health issue with smoking, give a brief explanation of how and when your condition started - explain that you're prepared to support your statements with medical records, witnesses and sworn testimony.

    Don't be cocky or rude - be friendly and authentic, play to the courts soft side (every now and then shed a tear if you can do it authentically, think of something sad, like losing your case - don't over do it!!)
    If you want, you could also have a hack attack, exhibit your symptoms in open court, anything's fair in this game - these guys have no limits, why should we?
    Be sure to cover all points, present witnesses, medical evidence and your own testimony, thank the court for allowing you this opportunity to present your case - come right out and ask that they rule in your favor based on the evidence presented.

    Remember, the defense doesn't have to prove anything - don't ask that they do.
    You only have to prove your case is more likely than not - 51%, that should be a walk in the park if you do it right.
    I hope this gives you some guidance - good luck and give em hell !! (Oh yeah, don't deploy the tears or hack attack unless you're 100% comfortable, be spontaneous)

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

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