Workers' Compensation FAQ

• Answer: Yes.  You do not get paid for lost wages for the first seven days you are out of work unless you are out of work for twenty-one days or more.  So, if you are out of work less than a week you will receive no workers’ compensation money.  If you are out of work two weeks, you get one week of workers’ compensation pay.  If out of work three weeks, you get three weeks of workers’ compensation pay.

Question #2: What benefits am I entitled to if workers' compensation accepts my work injury as compensable?

• Answer: If your injury is deemed compensable by your employer's workers' compensation insurance carrier, you are entitled to payment of your lost wages (two thirds of your average weekly wage) up to 500 weeks, payment for a permanent partial impairment rating if the physicians feels you have a permanent loss of use of a body part because of your work injury, medical expenses for the doctor selected by your employer, and reimbursement for your out-of-pocket expenses including prescriptions and mileage traveled.

Question #3: Are my workers' compensation benefits taxable?

• Answer: No.

Question #4: Does the permanent partial disability rating I was given by my workers' compensation treating physician take into account my pain and suffering?

• Answer: No.  There is no compensation for pain and suffering.  Your permanent partial disability rating is only based upon loss of range of motion.

Question #5: I have just been given a permanent partial disability rating and am still receiving my lost wage check.  Can I get both?

• Answer: No. You cannot get both total temporary disability benefits at the same time you receive permanent partial disability benefits.  However, once you return to work, your lost wage check stops and your weekly permanent partial disability check begins.

Question #6: How often will I receive my total temporary disability check and what do I do if I don’t receive it on time?

• Answer: You should receive your total temporary disability check on a weekly basis.  If you don’t receive it on time, contact the insurance adjuster to request an explanation.  If you're under an Award and they are more than ten days late, you can also request a 20 percent late payment penalty.

Question #7: My son died in a work accident and has no dependents.  What happens?

• Answer: If a deceased worker has no dependents, then only related medical expenses and up to $10,000 for burial expenses will be paid.

Question #8: I settled my workers' compensation claim without a lawyer.  Can I re-open the claim?

• Answer: No.  Once the appeal time has passed from the settlement order, you cannot re-open your settled claim.

Question #9: I'm afraid I'll be fired if I file a workers' compensation claim.  Can my employer do this?

• Answer: No.  Virginia law does not allow an employer to fire an employee in retaliation for filing a workers' compensation claim.  If you believe that your employer fired you in retaliation for filing a claim, contact the Virginia Department of Labor to file a complaint.

Question #10: I think someone is following me.  Would a workers' compensation insurance adjuster hire a private detective to follow me?

• Answer: Yes.  When your injury is serious enough that it requires you to be out of work for an extended period of time, you almost certainly will be under surveillance by a private detective who will probably follow you around taking video footage of your activities.  Because of the strong likelihood of being followed, you should assume that you are being followed and act accordingly.

Question #11: The insurance adjuster has offered that I settle my case but I don’t have a lawyer.  What should I do?

• Answer: It will be very difficult for you to know what your case is worth and whether the insurance company has offered you a fair settlement offer.  You should definitely hire a lawyer to assist you in the settlement so that you can get the maximum recovery.  If your case is very minor and does not involve you being out of work for any substantial period of time or any permanent injuries, you do not necessarily need a lawyer.  However, you should still probably get a consultation from a lawyer before settling a case, even if it's a relatively small case.

Question #12: My husband's been killed in a work-related accident.  What can I recover?

• Answer: Generally, dependents will be able to recover two thirds of the deceased workers' average weekly wage up to 500 weeks.  There are also benefits for medical expenses and burial expenses.

Question #13: How long do I receive workers' compensation benefits?

• Answer: You can receive your lost wages and permanent partial disability benefits for a maximum of 500 weeks between the two benefits.  Your medical benefits are lifetime as long as the doctor says the medical treatment is caused by the original work injury, and it's reasonable and necessary medical treatment, and you go to the authorized treating physician.

Question #1: What if my employer offers me a job within my doctor’s light duty work restrictions, but I do not want to take the job?

• Answer: If you choose not to accept the light duty position that you are offered, then your lost wage check will be stopped.

Question #2: The workers' compensation treating physician has said I can return back to my job on light duty but my employer says there is no light duty, and I cannot come back until I have no restrictions.  What happens?

• Answer: You will continue to receive your lost wage check (total temporary disability benefits) until you are released to full duty or your restrictions become permanent and the insurance company finds you a job within your restrictions.

Question #3: Can I take a new job with a different employer while I'm receiving workers' compensation benefits?

• Answer: Yes, but your eligibility for lost benefits may be affected.

Question #4: I cannot return to my job because of my work injury and this is the only type of job I've ever had.  Am I permanently and totally disabled?

• Answer: No, not necessarily.  By law, to be permanently and totally disabled you have to have lost both arms, both legs, both eyes, hearing, or a have had a traumatic brain injury that would have left you ineligible for gainful employment in order to be able to seek permanent total disability benefits.

Question #1: I have an old injury that began bothering me when I injured myself at work.  Will this injury be covered even though it is pre-existing?

• Answer: Yes, aggravations of preexisting conditions are covered under workers' compensation.  As long as your physician says that the accident at work aggravated your preexisting condition, then you will get workers' compensation benefits.

Question #2: My daughter is a minor and she was injured on the job.  Is she covered?

• Answer: A minor is covered by the Act.  If the minor meets the requirement of being an employee, she is entitled to workers' compensation benefits.

Question #3: I'm employed by a staffing agency.  Can I get workers' compensation benefits if I'm injured at work?

• Answer: Yes, the staffing agency would be liable for your workers' comp benefits if you were injured at one of your places of employment.

Question #4: What if my employer says he doesn’t have workers' compensation insurance, and I get hurt at work?

• Answer: You can contact the Virginia Workers' Compensation Commission to confirm whether your employer has workers' compensation insurance.  If the employer does not have workers' compensation insurance, the Virginia Workers' Compensation Commission will take action against your employer.  He will be assessed penalties.  Additionally, there is the Uninsured Employer’s Fund, which would pay your benefits and then seek reimbursement from your employer.

Question #5: Are psychological injuries covered by the Act?

• Answer: Possibly.  Psychological injuries alone such as stress, depression, or anxiety are not covered under the Act.  However, if your work injury and/or  the chronic pain from the injury causes you stress, anxiety, and depression then it will be covered.  There has to be a physical or bodily change for the psychological component of the injury to be covered.

Question #6: I am a truck driver who lives in another state but was injured in Virginia.  In which state should I file a workers' compensation claim?

• Answer: Generally, you should file a claim for workers' compensation in Virginia if you were injured in Virginia, your employer is based in Virginia, or your employer's workers' compensation insurance carrier is based in Virginia.

Question #7: Is it necessary for me to be a United States citizen to collect workers' compensation benefits?

• Answer: No.  You do not have to a citizen nor do you have to be properly documented in order to collect workers' compensation benefits.

Question #8: How long do I have to be employed before I'm entitled to workers' compensation benefits?

• Answer: There is no required length of time.  If you are injured at work in the first hour of the first day of employment you will be entitled to full workers' compensation benefits.

Question #9: May I recover if I'm injured as a result of horseplay on the part of my coworker?

• Answer: No, in most cases.  The law is changing so double check with an attorney.  If both you and a co-worker are engaged in horseplay or a fight, it is considered personal and not related to employment.

Question #10: If I'm injured while traveling to work, can I get workers' compensation benefits?

• Answer: The answer in most cases is no.  Workers' compensation does not protect workers who are injured while traveling to or from work.  There are certain exceptions, however.  For instance, a traveling salesman who has to drive regularly in his work can recover even if he is traveling to the first sales appointment of the day.

Question #11: I was under the influence of alcohol when my on-the-job accident happened.  Can I still recover?

• Answer: Most likely, no.  There can be no recovery if the worker is intoxicated or under the influence of controlled substances and if that intoxication caused the injuries.  If you misstepped or used poor judgment with machinery, intoxication would be the cause and you would not get benefits.  However, if you are under the influence of alcohol and are a passenger in a vehicle and another vehicle hits you, you could get workers’ compensation benefits.  It would be compensable because being under the influence was not the cause of the accident.

Question #1: I received a doctor's bill even though it was for a doctor visit authorized by the insurance adjuster.  What do I do?

• Answer: You are not responsible for any of the medicals bills that are incurred as long as you are being treated by the authorized workers' compensation treating physician.  The best step to take is to mail a copy of it to the insurance adjuster and also call the billing department of the medical provider and tell them to mail the bill directly to the insurance adjustor.  Give them the workers' compensation insurance claim number and information.

Question #2: I don’t like the workers’ compensation doctor.  Can I choose a different doctor?

• Answer: No.  If you choose a different doctor or choose to stop seeing the workers' compensation treating physician, then your benefits may be terminated or suspended for unjustifiable refusal of medical treatment.    In Virginia, once an authorized treating physician has been established, that is the only doctor the insurance carrier has to pay.  If you seek treatment with a non-authorized treating physician, you will be responsible for paying for that treatment.  There are ways to get a new treating physician but it is difficult and best to discuss strategy with your attorney.

Question #3: While receiving physical therapy for my work related back injury, the physical therapist did something to my shoulder and now my shoulder hurts constantly.  It never hurt before physical therapy.  Who's responsible for paying the treatment for my new shoulder therapy?

• Answer: Any new injuries which are caused by the medical treatment offered by your employer remain the responsibility of your employer.

Question #4: I feel uncomfortable when my nurse case manager insists on coming into the examination room while I'm being seen by the doctor.  Is there anything I can do?

• Answer: You have the right to request that she wait outside of the room during the examination.  After the exam, she may discuss the exam with the doctor.  If the case manager still insists on coming into the room, ask your doctor to have her leave.

Question #5: What doctor will treat me for my work-related injuries?

• Answer: If the insurance company accepts responsibility for your accident and pays your claim, the insurance company gets to dictate your medical care to a certain degree.  The insurance company is allowed to give you a panel of three physicians for you to pick from.  Once a treating doctor is established, the employer cannot “doctor shop” by sending you to doctor after doctor until he gets the report he wants.  If the insurance adjuster denies the claim, you may pick which doctor you want and when you prevail at your hearing, the insurance company is stuck with that doctor.

Question #6: What happens if my condition gets worse after my benefits have stopped, and I need to go back out of work?

• Answer: If your condition worsens and a doctor takes you back out of work, you can apply for additional benefits.  This is called a change in condition application.  You must do so, however, within two years from the date the last compensation payment was made pursuant to an Award order.  If you've been voluntarily paid sporadically, this does not stop the two years from running.  This is another reason why its' very important always to get your Award orders entered for all benefits and time periods.

Question #7: Can I tell my workers' compensation treating physician confidential information?

• Answer: No.  Under workers' compensation there is no physician/patient privilege.  Your doctor can tell your employer and the insurance carrier anything she learns from you regarding your workers' compensation case and your injury or illness.

Question #8: I recently settled my workers' compensation claim, and I still need medical treatment but Medicare has told me they will not cover my work injury until I have accumulated enough medical bills from treating on my own to equal the amount of the workers' compensation Award.  Is this correct?

• Answer: Yes.  If all or a portion of your settlement was meant to cover the cost of future medical treatment for your injury, Medicare is entitled to do this.  In situations where the settlement includes payment for future medical care, it's very important that a portion of the settlement is allocated towards Medicare so that they will not do this.  If you are in this type of situation, it is best to have an attorney help you settle your workers' compensation claim.  Unfortunately, in your case you cannot “redo” your workers’ compensation settlement to protect the money from Medicare.