Important Things to Know When You’re Hurt at Work & Benefits

Injured Workers Law Firm Attorney Michele Lewane explains the most important things you need to know when getting hurt at work?. Most claimants are not fully aware the law states that you only have 30 days to report the injury to your employer.
Watch This Video on

Video Transcript

You should immediately report the injury to your employer since the law states that you only have 30 days to do so.

Also, you need to file a Claim Form with the Virginia Workers Compensation Commission, just because the insurance company is voluntarily paying you does not mean that your benefits are protected. The only way to get the Virginia Workers Compensation Commission to become aware that you have a claim and how you do that is to file a Claim Form.

Be sure to keep copies of all medical records and all disability slips.

And finally, you’re in a very financially devastating situation and every little bit of financial assistance helps, so be sure to get all of your entitled benefits including your milage reimbursement.

Next you need to make sure that you’re watching out for tricks that the insurance adjuster may use to hurt your case.

Insurance adjusters voluntarily pay you some benefits, but this is not the same as having protected benefits and you may be cut off after 2 years from the date of your accident or the adjuster changing their mind.

Insurance adjusters will record your statements, and will do this fairly quickly as they try and lead you to make statements that will void your injury from being covered by workmans compensation. Many accidents are not covered under Virginia Workers compensation laws.

Insurance adjusters hire private investigators all the time. The investigators will watch you for days on end or sporadically either at your home or in public like at the grocery store. They could be watching you for a solid month and then not again for 5 months, they are trying to catch you doing something that your doctor would deem inappropriate for your work restrictions. Just assume that you’re being watched and avoid doing things that your doctor might deem inappropriate for your work restrictions.

An additional trick is that adjusters try to have you sign forms that contain the wrong information about your injuries or effected body parts or even your wages. This most important of these is the effected body part, because if you have a neck and shoulder injury, but the form that you signed only lists your neck, then they are only legally responsible for covering the treatment for your neck and not your shoulder.

this works the same with your wages, insurance adjusters are going to take the employers word for how much you are paid and the number of hours worked to establish your average weekly wage. However, you are entitled to your Holiday bonus, entitled to overtime and entitled to shift differentials. So if you have a doubt about your rate of pay be sure to double check with your pay stub.

there are a few mistakes that can be very costly, Hiding an old accident or injury can cause problems, aggravations of pre-existing conditions are covered, but misrepresenting your injuries can cause significant problems with your claim.

If you fail to report your claim to your employer, the Virginia Workers Compensation Commission can deny your claim for failing to give timely notice.

If you fail to report your claim with the Virginia Workers Compensation Commission within the statutory time period your claim will be denied for not being timely filed.

One of the worst mistakes is failing to get under an award order. Once you are under an award order there are many items that are of great benefit to you including you do not need to be doing a job search or marketing when you’re under light duty restrictions, if your case is urgent, you can get an expedited hearing within 30 to 60 days as opposed to waiting 4 to 5 months.

There are many other mistakes that can happen, so it is your responsibility to learn as much as you can about workers compensation and protect your rights. You can get our free book, The Ultimate guide to Workers Compensation in Virginia from our website to help you protect your rights and maintain your benefits, protecting you and your family so that you will receive the best medical recovery possible.

The Injured Workers Law Firm is focused on serving clients with workers’ compensation claims throughout Virginia. For answers to your questions about benefits download our book, The Ultimate Guide to Workers’ Compensation in Virginia or call our office today (804) 755-7755. The Injured Workers Law Firm, serving Fredericksburg, Virginia Beach, Manassas, Charlottesville, Fairfax, Hampton Roads and all of Virginia.

How Do I Get Workers’ Compensation Benefits in Virginia?

In Virginia, to get workers’ compensation benefits after you’ve been injured, you need to notify your employer immediately—even if it is a minor injury.  Don’t worry that you may not appear to be a team player.  Once your employer receives notice, he or she will file a first report of accident and submit it to the workers’ compensation insurance carrier.  At that point, the insurance adjuster will call you, ask questions about your injury, and record your statement (which is something I usually recommend not giving).  Then you should begin receiving two thirds of your wages weekly, and given a panel of three doctors to choose from.  This may seem simple BUT there are many traps.

The biggest problem is that the injured worker has the burden of proof.  This means that the insurance adjuster and the employer can do nothing and can say nothing.  They have no obligation to explain anything to you, which may mislead you—and you have no recourse.  It is up to injured workers, even if they are unconscious in a hospital, to know what their rights and obligations are and to ask for their benefits.  Most insurance adjusters have a policy “if they don’t ask, don’t tell.”  This is the reason why it is best to talk to an attorney experienced in workers’ compensation so you know your rights and are informed of any areas in your claim that could prevent you from getting your full benefits.

You may not need to hire an attorney but you should get fully informed since you are held responsible for any mistakes you may make.  Good workers’ compensation attorneys will give you a free consultation to discuss your particular situation.

What You Need to Prove Your Virginia Workers’ Compensation Claim

Having ample evidence is important when you are pursuing a Workers’ Compensation claim in Virginia.

When it is hard to come by or when you’re facing an uphill battle in obtaining benefits, a Workers’ Compensation lawyer may be able to help.

One of the setbacks that can be experienced in the filing of a Workers’ Compensation claim is seeing a doctor of your employer’s choosing. They may try to downplay your injury or illness, or even outright deny that you are hurt. This is why it’s important that you do your part to gather as much evidence as you possibly can.

Immediately upon learning of a work-related illness or sustaining a work-related injury, you should begin collecting it. One piece of evidence that will be helpful in proving your claim is an accident report. If your injury occurred while on the job, make sure an accurate, detailed report is completed.

Company policies, safety warnings or any other documentation related to the accident should also be gathered. You may even wish to get a copy of your employee handbook, which may provide helpful information.

You should also get copies of your medical records, including test results. Make sure you get a copy of any prescription medication you are put on. If you are scheduled for further treatment (surgery, physical therapy, etc.), it’s important to have documentation of this.

Other types of evidence that may be helpful include:

  • photographs or video footage;
  • testimony from co-workers; and
  • anything else that pertains to your injuries or illness.

Your evidence could make a significant difference in the outcome of your claim. 

Handling a Third Party Claim

A third party claim is a lawsuit filed against the person, machine, or other object that caused your injury. For most cases of work place injuries, workers’ compensation will be the only type of benefits you can claim. Workers’ compensation laws place no blame on either the employee or the employer. Instead, they compensate the injured employee for their injuries, including medical bills and loss of wages.

However, if it can be shown that someone besides your employer or someone working for your employer caused the work injury, you may be able to file a claim against that entity. For example, if the equipment or machine that you used caused your injury, you may be able to file a third party claim against the manufacturer of the machine. You also can file a third party claim if your employer carries no workers’ compensation insurance and you can show that the injury was their fault.

A third party claim typically is handled in the civil court system, separately from workers’ compensation claims. Although employers are generally not involved in third party claims, the workers’ compensation insurance carrier can often recoup a portion of any benefits, including both medical and wage loss benefits, that have been paid on behalf of the injured worker if the injured worker settles the third party case or wins a lawsuit against the third party.

Also, if the injured worker chooses not to pursue the claim against the third party, the employer or workers’ compensation insurance carrier can file the lawsuit in the injured worker’s place.

What Type of Benefits Do I Get from Workers’ Compensation?

You can receive lost wages.  The legal term for lost wages is temporary total disability benefits.  These benefits occur when an employee is taken totally out of work by his doctor.  A worker is entitled to two-thirds of his pre-injury average weekly wage for a maximum of 500 weeks (9 ½ years).  This does not mean you will get 500 weeks.  What it means is that if the doctor keeps you out of work up to 500 weeks you will be able to receive two-thirds of your average weekly wage.  What the doctor says goes.  It does not matter if the insurance adjuster thinks you can work or if you believe you cannot work, the doctor determines whether or not you can be deemed totally out of work.  The average weekly wage is determined by the last 52 weeks of employment.  It includes bonuses, overtime, uniforms, meals, etc.

On July 1, 2011, the maximum weekly compensation rate was $905.00.  This means that if 2/3 of your average weekly wage is $950.00 (or any amount higher than $905.00), you will only get $905.00 per week and not 2/3 of your average weekly wage.

Returning to Work After a Work-Related Accident

A very difficult problem happens when an injured worker does not feel that they are ready to return to work and the doctor is saying yes they can return to work.

It’s a catch 22, do I refuse to obey my doctor’s orders and have all my workers comp benefits cut off or do I do something and risk injuring myself again, and um the best way to handle this is to specifically have your work restrictions in your back pocket because your supervisor and your co-workers, if you don’t have some cast on don’t realize that your back is hurt and you only have a 10 pound lifting restriction.

So my general best advice is to try it and if you can’t do it immediately go back to the doctor and try to request that he change the work restrictions. Maybe changing the number of hours a day you’re working or maybe specifically saying supposed to be emptying trash cans or you’re not supposed to be picking up boxes or getting on your hands and knees washing some type of equipment.

If your employer asks you to do something that violates the restrictions, you have the restrictions right there and you say, I’m sorry, my doctor says I cannot do that and you have the restrictions to hand to him.

So if you choose to do the work like you’re back at work, you’re stocking things and you’re not supposed to be using your left arm and you’re using your left arm and your right arm and you injure your left arm, you are the one whose in trouble, you’re the one whose violated the work restrictions that said no use of your left arm and you are the one that will have your medical benefits cut off.

So, it’s a very difficult situation to be in, cases are done on, it’s a very fact specific so it’s not in general oh you can do this or that, so my advise would be to talk to an attorney, you can either call me or any other workers comp attorney in Virginia and get the information that you need.

Giving an Injured Workers’ Deposition in Virginia

One tip that can help you in your workers compensation claim, is when you have your deposition, do not think it’s a conversation and that you’re going to convince the other side if they know the truth that they will just agree to your case.

It is not a conversation, it is a typed written document that will be used against you at your hearing. So the purpose of the deposition is to help the other side gather information. It is for you to make a statement that is inconsistent with with what you say at the hearing, with what’s been written in the medical records, what’s been written in the recorded statement and also what you’ve written in your interrogatory.

So if you don’t have these same exact words in all five places, you don’t know what you’re talking about because if you’re not saying this accurate on this irrelevant matter then that means you’re not telling the truth about how the accident occurred.

You can never win your case at a deposition, but you can definitely lose your case in a deposition.


About the Author:

The Injured Workers Law Firm is a Richmond, Virginia based firm solely focused on serving clients with workers' compensation claims in Virginia. If you have questions about your benefits or if you would like more information on the Virginia workers’ compensation system, order our book, “The Ultimate Guide to Workers’ Compensation in Virginia” , or call our office today (804) 755-7755.