First, immediately report your injury to your employer even if you do not believe you need medical treatment. Next, file a Claim Form. If your employer has done what they are supposed to do after you report your injury, your employer files a first report of accident. This form is mailed to their workers’ compensation insurance carrier and they in turn will mail notice to the Virginia Workers’ Compensation Commission that an injury has been reported and they will also call you to get a tape-recorded statement as to what occurred and to attempt to make a decision whether or not to accept your claim. The recorded statement is the insurance adjuster’s opportunity to find any grounds to deny your claim. I usually advise my clients not to give a recorded statement because there are certain things that they could be led into answering that could destroy their case. However, sometimes, to speed the process along, it could be an option to give your recorded statement quickly. You would need to speak to a lawyer to get advice as to which would be the best option for you, given the circumstances that you are in at the time. Assuming that the insurance adjuster accepts your claim, they usually begin making voluntary payments of two-thirds of your average weekly wage within a few weeks and they will give you a panel of physicians for you to pick one to become your workers’ compensation treating physician. Many times, the insurance company continues to make voluntary payments and does not mail the First Report of Injury to the Virginia Workers’ Compensation Commission. At this point, it’s important to note that if you have not received a Claim Form from the Workers’ Compensation Commission, you request one; either online or in person at the Commission. A sample copy is in the appendix. Filing this Claim Form is very important. At that point, the Virginia Workers’ Compensation Commission generates documents to the insurance carrier that are called the 20 day order. This 20 day order is a form that the insurance adjuster has to return to the Virginia Workers’ Compensation Commission within 20 days advising the Commission whether they are accepting the claim or if they are denying it and, if so, why. You would then get a copy of this document.
If they accept the claim, an Award order would be entered. This is the document that you are looking for when there is any change in your case. You want Award orders entered so that you’re under what’s called an open Award, as opposed to not having an Award and the employer just making voluntary payments. This is important for several reasons. One reason is that if you’re being voluntarily paid with no Award order and a conflict comes up six months to a year later, you will still have to prove your case: that the injury by accident occurred. Many witnesses may be gone and, at the very least, memories faded. The conflict may be whether or not you should have surgery and now you also have to fight and prove whether an actual accident occurred. Once an order is entered, the insurance company is legally responsible for that injury by accident and you would never have to go back and try to prove it. The second reason why Award orders are so important is, once you’re under an Award order you can ask, under some circumstances, for an expedited hearing if an issue arises. This would mean you would have your hearing more quickly than waiting with all the other individuals whose claims are being denied. Usually, this would cut the time before your case is heard by three to four months. Cutting the time by three of four months, during which time the insurance company has cut your check off, may mean a lot to you financially. Don’t forget that your bills, like electric, rent, and mortgage are not going to go away because you are hurt on the job.
The Virginia Workers’ Commission, as of 10/1/08, is changing the various forms and processes, but you must be proactive and get your award orders to prevent such a financial disaster before there is any conflict.. For any accident after 10/1/08, the form names have been changed to the First Report of Injury (FROI) and then a Subsequent Report of Injury (SROI). However, older forms may still be used, so you may be seeing two different types of paperwork. They are basically the same thing. The most important thing is that you put the bodily injury correct on each and every document. If you state only “neck” and it’s also your shoulder, the insurance company only has to cover the neck.
If the insurance company denied your claim, at the bottom half of your Claim Form you would check the box necessary to request a hearing. Usually, it will be another four to five months before you have the hearing date. The Deputy Commissioner does not make a decision at the time of the hearing. He will listen to the evidence and then render an opinion that you will receive in the mail a few weeks later. After the decision has been made, either party has 20 days to note an appeal of that opinion and then the Full Commission will make a decision. After this, either party has 30 days to note an appeal of this opinion to the Virginia Court of Appeals. As you can see, this process can be very long. If your claim is denied, consult an attorney. You will have experts in workers’ compensation fighting against you. The insurance adjuster, who does this work full time, will hire a defense attorney who usually does this type of work full time. Therefore, it usually is advisable at least to consult with an attorney if your claim is being denied, in order to know the legal processes and also to find out if you have a claim. I would estimate that out of ten people who are denied workers’ compensation benefits and come to me to discuss their denials, four will clearly have a case, three most likely do, and three don’t. Another reason to get an attorney if your claim is denied is that the hearing process needs to be done correctly and proper legal procedures need to be followed. The hearing is your one and only opportunity to put on evidence. You cannot say, “Oh, I can get that to you later.” While you’re waiting for your hearing, you will have what is legally called a discovery period. You will be filing medical records. Each party will ask the other questions which must be answered under oath. You may be deposed or your treating physician may be deposed. Usually, at a deposition you would go to your attorney’s office and the insurance company’s attorney would ask you questions under oath in front of a court reporter. This will be used against you at your hearing. Usually, a hearing is set for 30 minutes. Most of the time, if you hire an attorney you will be responsible for the attorney’s fees. However, if there is no reasonable defense at all, sometimes the Commission may assess attorney’s fees against the insurance company.
Written by Michele Lewane, Richmond, Va. Attorney and author of “Ultimate Guide to Workers’ Compensation in Virginia”.