Can I Get Workers’ Comp Benefits For My Loss of Sense of Taste and Smell?

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

What is your sense of smell and sense of taste worth to you? These senses are truly priceless. In a medical malpractice case, the plaintiff – a chef – was awarded $1.5 million in damages when he lost his sense of taste following a tonsillectomy when the surgeon failed to disclose that this was a risk.


Unfortunately, sometimes an injured worker may suffer a head injury or other type of injury that causes him or her to lose his/her sense of smell and/or taste. While no amount of money will ever make a person whole after losing one of their senses, North Carolina workers’ compensation law allows for an injured worker to be awarded some compensation for the loss of sense of smell and taste if the loss was a result of compensable workplace injury. Under North Carolina General Statute § 97-31(24), the “loss or permanent injury to any important organ or part of the body for which no compensation is payable under any other subdivision of this section. . .”. The maximum award for the loss of both senses (combined) is capped at $20,000 in North Carolina.


North Carolina law treats the “loss of sense of taste and smell” as the loss of an important internal organ.” See Cloutier v. State, 57 N.C. App. 239, 291 S.E.2d 362 (1982).  In 1997, the North Carolina Court of Appeals (Bess v. Tyson Foods, Inc., 125 N.C. App. 698, 482 S.E.2d 26 (1997) held that the injured worker was entitled to compensation for permanent damage to the olfactory organ but not for compensation for two separate compensable injuries. As a result, in North Carolina the most a plaintiff can receive for losing his or her sense of taste and smell is $20,000.


Based on a brief look at other states, it appears that many states do not compensate injured workers for their loss of sense of taste or smell at all. When compensation is allowed, the states have compensation caps less than North Carolina’s cap.  For example, Connecticut allows 17 weeks (max) compensation for loss of sense of taste, and 17 weeks (max) for loss of sense of smell. Minnesota allows a 1% disability rating for total loss of taste and 1% rating for total loss of sense of smell. Washington caps the total body impairment for the loss of taste and smell at 3% (or a max award of $5,977.41). Finally, Wisconsin has a cap of 2.5% for permanent total disability for losses of taste and smell. 


In Complicated Times, Police Who Risk Their Lives Still Need Support

Today’s post comes from guest author Edgar Romano, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

Last week was a very bad one for police officers across the country, starting with the separate police shooting of two unarmed men. These shootings – days apart in different parts of the country – sparked widespread outrage and protests throughout the country. 

While the investigation continues into the circumstances surrounding these civilian shootings, video evidence suggests the outrage over these shootings appears to be justified. The week ended with the assassination of five police officers in Dallas who were providing protection to citizens engaged in a peaceful protest over the shootings of the unarmed men. The gunman indicated he had killed the police officers in retaliation for the shooting deaths. This was the worst loss of life for the police department since September 11, 2001.  Additionally, seven police officers were injured in the attack.

These horrific events highlight the difficult job that police face every day. While not all police officers are perfect (in fact, who amongst us is?), most don’t begin their shifts with the mindset that they are going to kill a civilian. Most see their role as keeping the peace and protecting citizens. They do, however, wonder many times whether they will make it through their shift safely and return home to their loved ones.    Unfortunately, they are not always immune to death and injury.   

As an attorney who has represented many law enforcement officers injured on the job, I know the majority of them receive medical treatment and may have a period of convalescence, but then are able to return to work. However, some sustain serious and career-ending injuries. Most police officers in New York City and Long Island are likely a member of a Civil Service Retirement System. If so, and they become permanently disabled from performing their specific job duties, they may be eligible for a life-long disability pension.

There are many pension systems in the state, all with different applications, rules, procedures, and guidelines. Each disability pension has its own statute of limitations and guidelines for eligibility. There are different pensions available, ranging from one-third to three-quarters. Just because you were injured on the job does not mean you are automatically entitled to the three-quarter pension, which would enable you to receive 75% of your previous year’s earnings. 

Although not always relevant, how police officers are injured on the job can impact whether they are entitled to a three-quarter disability pension. Additionally, just because they were injured while working does not automatically mean they are entitled to a three-quarter disability pension. Factors that get taken into account are issue of causation, medical evidence from the officer’s own doctor, and the retirement system’s medical board. It is not always an easy process for our law enforcement personnel to receive reasonable retirement benefits, but it should be. Day in and day out, they protect the citizens of our cities and our states, putting their own lives at risk simply because they are dressed in blue. 

There is a huge spotlight this week on police, and rightfully so, as there is so much mistrust and anger regarding the recent events. There needs to be an honest, open dialogue where those aggrieved are given the opportunity to be heard without fear of reprisal, just as the police department needs to be given the opportunity to have investigations completed before a rush to judgment. While the majority of police officers are honest and hardworking, those who fail to uphold their oath should be punished.

Police officers are sworn to protect and serve; they run toward trouble when we run away from it. They patrol neighborhoods that are dangerous, riddled with crime, where we are taught to avoid them. They put their lives on the line every day, knowing they might never return to their families. Yes, this has been a very tough week. Let’s hope that future discussions help bridge the gap between our police and the citizens they are sworn to protect.


Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy  Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.


Trumponomics: Impact on Injured Workers and the Middle Class

Today’s post comes from guest author Kit Case, from Causey Law Firm.

Paul Krugman’s July 4 New York Times Op-Ed column, “Trump, Trade and Workers”, picked apart the economic plans posed by Donald Trump in a campaign speech the prior week.  Mr. Krugman examined “the general thrust of the speech: the candidate’s claim to be on the side of American workers.”  All of the points Mr. Kruman raised are valid.  I wish to add a bit of  perspective, though, from the world of representing injured and disabled workers: an effective safety net is also necessary for a strong middle class.  

Krugman: “What’s important is that voters not mistake tough talk on trade for a pro-worker agenda. No matter what we do on trade, America is going to be mainly a service economy for the foreseeable future. If we want to be a middle-class nation, we need policies that give service-sector workers the essentials of a middle-class life. This means guaranteed health insurance — Obamacare brought insurance to 20 million Americans, but Republicans want to repeal it and also take Medicare away from millions. It means the right of workers to organize and bargain for better wages — which all Republicans oppose. It means adequate support in retirement from Social Security — which Democrats want to expand, but Republicans want to cut and privatize.”

Access to Social Security disability benefits has become difficult to obtain, particularly for younger, middle-aged applicants.  Approval rates for applications for Social Security benefits are down across the country but are staggeringly low in some metropolitan areas, such as Seattle.  State’s have been under enormous pressure to reduce costs in their workers’ compensation systems, as well.

In Washington State, changes put into place including a major “deform” movement in 2011, have saved money, granted, but nearly all of the savings were taken out of the pockets of injured workers through reductions in benefits.  

Implementation of a required Medical Provider Network with increased cost and hassle for physicians has significantly limited access to the best care for Washington’s injured workers.  We went from one of the best states in the union for high-quality workers’ compensation insurance to a place where many workers avoid filing claims and seek care under private insurance to get the care they need, quickly.  

Without sufficient benefit levels and access to quality medical care, families suffer. An injured worker receiving temporary total disability benefits receives compensation while unable to work, typically between 60 – 70% of the pre-injury wage rate although higher wage earners may receive a far smaller percentage if they bump into the cap on benefit levels.  For example, a highly skilled tradesperson, particularly if in a union, may receive compensation at 40 – 50% of pre-injury levels.  It’s hard to maintain a middle-class lifestyle on half of your pay, and even harder if it takes months to get authorization for surgery – the road to recovery can be quite long and bumpy.

Washington’s Retro Group program, where employers can reduce premium costs by opting to pay claim costs dollar-for-dollar and can receive refunds of premiums paid if their costs are lower, have inserted a profit motive into what used to be a strong system where all workers and employers shared the cost of all injuries, spreading the burden out and providing predictable coverage expenses.  With the Retro Program, employers have a vested interest in denying coverage, reducing benefits, denying treatment – every penny saved goes right back into their pocket.  It’s a whole new contentious game.  Note that the workers, who in Washington pay ½ of the premiums charged to employers, never get a refund if claim costs are low.  It is unfair, lopsided and the fights that ensue between workers and employers over coverage are handled by State agencies, State  employees, adding to the State’s expense of running the overall workers’ compensation system and eating into the “savings” gained by the reform efforts.

Workers’ compensation is intended to provide protections to those injured on the job for the purpose of ensuring a speedy recovery and return to employment, hopefully with limited financial impact to the worker and their family.  When done right, the protections can save an injured worker from financial ruin.  Implemented poorly, the system can add to the physical, emotional and financial pain after an injury.

Photo credit: George Eastman House via RemodelHunt / No known copyright restrictions


Can I Collect Unemployment and Workers’ Compensation Benefits at the Same Time?

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

In Nebraska, an injured worker who is laid off, fired or leaves a job for good cause can collect unemployment benefits and still receive Temporary Partial Disability (TPD) benefits and Permanent Partial Disability (PPD) benefits from the workers’ compensation insurance company. The Nebraska Labor Department unemployment law does not allow a worker to receive unemployment during the same week the person is paid Temporary Total Disability (TTD) workers’ compensation payments.

To receive unemployment benefits, the injured worker must be ready, willing and able to work.  As long as injured worker is ready, willing and able to work within one’s own restrictions, that worker can receive unemployment benefits during the same week that they are entitled to TPD and PPD benefits. 

If a person is totally unable to work and getting TTD benefits, that person cannot receive unemployment benefits since they, by definition, are not ready, willing and able to work.

Under the workers’ compensation laws, it is also important to remember that compensation benefits cannot be offset with what is paid under the unemployment benefits. For guidance, please refer to Nebraska Statute 48-130 that supports this rule of law.

If you have been laid off or terminated, you are still entitled to workers’ compensation benefits in the above situations.

If you have any questions, call us for a free consultation.

Citizens Pushing Back Against Attack on Work Comp System

Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.

Citizens are waking up to the potential legislative attack on the Work Comp System: Workers’ Compensation Bill an Attack on Our Rights.  This editorial is from the Wausau Daily Herald–right in the backyard of one of the legislators (Spiros) who has proposed this direct legislative attack.  We previously discussed the proposed legislation in a prior post: Legislative Alert: Worker’s Compensation Destruction Bill?

In Wisconsin, the stabilizing force–the Worker’s Compensation Advisory Council (WCAC)–is set to produce its agreed-upon bill in the upcoming weeks.  The Council is a group of labor and management that effectively “collective bargain” (yes, that’s not a bad phrase !) for biennial changes and common sense improvements to the system.The Council bill was unanimously agreed to by members of labor and management—which includes the WI Manufacturers and Commerce (WMC).

In direct contrast, the opposing bill (also known as the work comp destruction bill) was not considered by the Council.  It is a direct legislative attack on the work comp system.  The non-WCAC bill would tear down the whole system by exponentially increasing litigation, hindering access to medical care and recovery, and potentially creating a slippery slope to unlimited jury awards. 

As opposed to the work comp destruction bill, the WCAC bill will do what it always does—improve on the Worker’s Compensation Act.  Citizens are becoming aware.



Company Fined Over $1 Million After Explosion at Newport, WA, Plant

Today’s post comes from guest author Kit Case, from Causey Law Firm.

Zodiac Cabin & Structures Support LLC has been fined $1,316,000 for workplace safety and health violations following an explosion at its carbon fiber production plant north of Spokane. Seventeen workers were injured in the oven explosion at the Newport, Wash., facility last July.


A nearly six-month investigation by the Department of Labor & Industries (L&I) concluded that the explosion could have been prevented if Zodiac had used required safety interlocks and safeguards to ensure that the curing oven was used safely and as advised in a consulting engineer’s report.


L&I cited the employer for 17 willful violations for knowingly and willfully exposing workers to the risk of serious injuries. The investigation found the company used defective equipment and didn’t ensure safe procedures were used when processing flammable materials in its industrial curing oven. Each violation carries the maximum penalty of $70,000.


“Had this explosion occurred during the day when many more workers were present, there could have been many more injuries and possibly even deaths,” said Anne Soiza, L&I assistant director of the Division of Occupational Safety and Health. “As it is, 17 people were injured and their lives put at risk from an incident that was highly predictable given the operating conditions.” 


Along with the willful violations, L&I cited the company for 18 serious violations, all with the maximum penalty of $7,000 because of the high potential for death or permanent serious harm.


Due to the danger of an explosion, specific safety interlock controls and other safety procedures were supposed to be in place before the highly flammable resins were used in the 90-foot drying oven. Those controls were not in place, despite the fact that Zodiac had advice from its contracted consulting engineer detailing the steps needed to ensure safe operation prior to using the flammable uncured resins.


The investigation found that flammable resins had been run through the oven a number of times prior to the explosion. L&I also discovered that 11 days before the incident, the plant was evacuated due to flammable vapors that created a risk of explosion in the same operation.


Four of the serious violations cited were for not ensuring effective energy control procedures were in place to protect workers when they had to reach inside the curing oven for cleaning, service or maintenance.


The company was also cited for eight “confined space” serious violations related to employees entering the 90-foot oven to perform cleaning, service or maintenance. Working inside a confined space area, such as the oven, without safety precautions can be deadly to both workers and would-be rescuers. Confined space hazards can include suffocation, toxic atmospheres, entrapment and other dangerous conditions that are fully preventable.


An additional six violations were related to failing to prevent ignition of flammable vapors and protect workers from inhaling harmful vapors and chemicals, such as from solvent and formaldehyde.


As a result of the willful violations, Zodiac Cabin & Structures Support LLC has been identified as a severe violator and will be subject to follow-up inspections to determine if the conditions still exist in the future.


The employer has 15 days to appeal the citation. Penalty money paid as a result of a citation is placed in the workers’ compensation supplemental pension fund, helping workers and families of those who have died on the job.


For a copy of the citation or photo, please contact public affairs at 360-902-5413.


Why I Am Thankful – Two Photographs

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

Recently I took photographs of two men who remind me of why I am thankful every day. One man is sitting in a wheelchair at a restaurant, with his right hand in a contorted position and he is being fed by another person. The other man, also in a restaurant, is in shorts and is holding a small child in his arms.  But something is missing – his right leg – he has a flesh colored prosthetic device as a substitute.

I have spent a lifetime helping disabled people and I have never heard any of them say “You know, Mr. Jernigan, when I got up to go to work that day, I knew I was going to be severely injured and my life would change forever.” We never know when life will take a turn like that. We never know when we will lose our independence and sometimes our dignity. Fortunately, that day will never come for most of us. But it could.

When I think about the man in the wheelchair and the man holding his child, I think how lucky I am, and I am thankful each and every day. 


Sometimes You Need Help

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

Last month our firm held a planning retreat in the beautiful town of Chapel Hill. We reaffirmed our firm’s slogan: “Accidents Happen, Sometimes You Need Help.”

Frequently we speak to injured workers during our free consultation about getting medical treatment. It’s frustrating and scary for an injured person to have to wait for authorization for surgery or a medical referral. Treatment delays are inefficient for everyone. It delays the recovery and, as a result, the return to work. Our goal is to expedite medical care when possible by following up with the workers’ compensation adjuster to have treatment approved and, if necessary, file a motion with the North Carolina Industrial Commission.

In a case I had last year, we were hired because the insurance company was dragging its feet authorizing an orthopaedic back doctor. After several communications, the adjuster agreed the referral to an orthopaedic back doctor was authorized. Sadly, the “orthopaedic doctor” that was authorized by the adjuster was actually a gynolcologist-obstetrician for my male client! Furthermore, it took several additional contacts to finally correct the situation and get my client to the appropriate doctor. Finally, my client was evaluated by an orthopaedic doctor, received medical treatment, and was also able to continue working.

Our firm sees these problems every day. I believe we (injured workers’ lawyers and insurance companies) should have a common goal:  Recovery and return to work. But “sometimes you need help” to get to that point.