Virginia Workers’ Compensation Frequently Asked Questions

Virginia Workers’ Compensation Frequently Asked Questions 2018-08-02T15:46:33+00:00

 

Virginia Workers’ Compensation Frequently Asked Questions

If I suffer from a severe chronic illness that my doctor believes is related to the work I do in Virginia, should I consider workers’ compensation?

A: The likelihood of recovery under Virginia’s workers’ compensation laws for a chronic illness will depend on the type of illness and whether the illness was directly caused by the work you perform. Even if your doctor attributes a chronic illness to your work, it may not be enough to be classified as an occupational disease that is considered compensable under Virginia workers’ compensation.

A chronic disease is classified as either an occupational disease or an ordinary disease of life. The first step is figuring out whether you suffer from an occupational disease or an ordinary disease of life.  To be classified as an occupational disease, your illness must have been caused by a source the general population isn’t readily exposed to.

For example, asbestosis is an occupational disease caused by chemicals the general population does not normally encounter. On the other hand, asthma is a medical condition that is classified as an ordinary disease of life.

An ordinary disease of life can be considered an occupational disease for purposes of workers’ compensation if you have evidence showing the disease exists and arose out of and in the course of your employment, and:

  • follows as an occurrence of occupational disease;
  • is contagious and contracted from your employment in a health and emergency related field; or
  • is an attribute of the employment.

Distinguishing between an occupational disease and an ordinary disease of life can be complicated. Unlike accidents, aggravations of pre-existing diseases are NOT covered by Virginia workers’ compensation. Also, the burden of proof is higher.

When should I settle my claim?

A: There is no one set of rules for the “best time to settle” in any case, as each case is different. If you are actively seeking medical treatment, or you may have suffered a permanent loss of use of a body part(s), or you have permanent restrictions, there is a danger in settling your claim prematurely. This is because you can never go back to your employer or to Commission once your claim is settled and funds disbursed. However, if you have reached maximum medical improvement and have returned to work or are in vocational rehabilitation, you may wish to consider settlement.

We can answer your questions regarding this issue and can assist you in evaluating the value of your case and if it might be a good option.

How long do I have to report my work injury to my employer?

A: You have thirty (30) days after a work injury to notify your employer of the injury.

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I was injured on a construction site while I was working as an independent contractor. Can I still get Virginia workers’ compensation benefits for my injury?

A: The answer to this question depends on the very specific facts of your case. The Virginia workers’ compensation laws determine who is considered an “employee” of a company and who is an independent contractor. Just because you are labeled an independent contractor does not make you one under workers’ compensation. The issue is the degree of control the employer has over the person. A lot of control means you are probably an employee; little control means you are probably an independent contractor.

Independent contractors are typically required to purchase their own workers’ compensation insurance if they wish to be covered. The entity that hires the contractor is not liable for providing this insurance in most cases. The general contractor may have potential liability as a statutory employer but if they do not pay the additional premium for uninsured subcontractors you may not be covered. 

Employees of independent contractors may be covered for a workers’ compensation injury if the independent contractor has more than three (3) employees and, therefore, is required by law to provide workers’ compensation insurance coverage. There are some cases where employees of the subcontractor may be covered under the main contractor’s workers’ compensation insurance, as well.

There are many variables in a workers’ compensation claim when you are injured on a job site as an independent contractor or employee of such a company. These claims can become very complex as you try to determine which party is liable for covering your injuries through their workers’ compensation insurance.

How does short term disability apply in Virginia workers’ compensation cases?

A: Workers’ compensation cases involving short-term disability can become complicated. Generally, they are mutually exclusive.

Income may be replaced if a worker is on short-term disability. Usually, if your workers’ compensation claim is denied, you should apply for short term disability.

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Can I receive short term or long term disability and workers’ compensation benefits?

A: Probably not.

Workers’ compensation is the “exclusive remedy” – the sole recourse – for benefits. For this reason, most short term and long term disability policies have a specific exclusion for on-the-job injuries. If you do receive short term or long term disability benefits while waiting on your workers’ compensation benefits to be approved, you may have to reimburse the policies for any payments that have been made.

I filed a workers’ compensation claim but there’s been no response.

A: First, it is important to know where you filed the claim. If you filed a claim with your employer or with the insurance company, they are not necessarily required to do anything with it. You need to be sure that the claim was filed with the Virginia Workers’ Compensation Commission. If you filed your claim directly to the Virginia Workers’ Compensation Commission, it takes a minimum of 10 days, usually longer, for the Commission to process it and assign a file number (referred to as a JCN – jurisdiction claim number).

If you have not received a written confirmation of your claim (Acknowledge Protective Filing), within about three weeks, you can contact the Virginia Workers Compensation Commission directly.

Why does workers’ compensation insurance have to know about my auto accident?

A: For an automobile accident that took place before your work injury, the workers’ compensation carrier will want to know if you injured the same body parts before to verify that the work injury is responsible for your need for treatment.

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What happens at a hearing?

A:  A hearing is a legal proceeding to determine what, if any, benefits are due under the Virginia Workers’ Compensation Act. A Deputy Commissioner will be present to hear all evidence and testimony. The insurance company and employer will have an attorney representing their interests. The adjuster handling your claim may be present but not always. You will be asked to testify and to give your side of the story. Medical records, reports, and any other documentation in support of not only your claim but the insurance carrier’s claim, are submitted into evidence. Once each party presents their prospective case, the record is closed. The Deputy Commissioner will then issue an Opinion, weeks later, which is legally binding on both parties. There are various rules regarding whether a claim is able to be appealed and the time frame for doing so if either side wishes to seek an appeal.

If there is an appeal, no new evidence can be submitted during the appeal. If you are scheduled to have a hearing, you definitely want an attorney present to protect your rights.

Can I get a cost of living adjustment?

A: Yes. However, there are two requirements.

First, you must be under an open award for temporary total disability benefits with the Virginia Workers’ Compensation Commission on or before July 1 of the year you are seeking the Cost of Living Adjustment, also known as COLA.

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My nurse case manager is trying to get my doctor to change my treatment plan, work restrictions, etc. What should I do?

A: This comes close to what is known as “managing medical treatment.” In Virginia, no one but the treating physician can direct medical treatment, not even your nurse case manager. If you feel your nurse case manager is attempting to persuade your doctor to change the treatment plan or your restrictions, he or she is very close to violating worker’ compensation Rules.

You should speak to us to learn more about what you can do to protect and secure your rights.

What happens when the doctor says I am at maximum medical improvement?

A: Maximum medical improvement (MMI) is a medical term used by your physician to indicate he believes you have basically gotten as good as you are going to get from your recovery of your workers’ compensation injury(ies). This does NOT mean that your workers’ compensation claim is over.

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How will my Social Security Disability benefits be impacted by my workers’ compensation benefits?

A: Your Social Security Disability benefits can be offset by any wage loss benefits you receive in a workers’ compensation claim. However, it also means that the amount of the workers’ compensation benefits that are being offset become taxable income. If you are concerned about your benefits, you should have us review your case and help you receive the maximum value of your claim.

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I’m on work restrictions but I don’t want to lose my job, what do I do?

A: Every time you get work restrictions, take them to your employer. If they have work available, then be sure you are doing the best you can within your work restrictions. As long as your work injury is compensable and the reason you are terminated is not your fault, then you will remain entitled to workers’ compensation benefits. If you are not under an Award, then you will need to look for a job within your work restrictions.

If you find your employer is pressuring you to work beyond your known restrictions, you need to consider talking to us so we can advise you how to protect your rights and secure benefits.

Are you joking, workers’ compensation gets my money from my auto accident claim?

A:  If workers’ compensation insurance has paid any benefits to you or on your behalf that are included in the auto accident claim, then the workers’ compensation insurance carrier not only has a lien against any money you get from the auto accident case but you MUST get the workers’ compensation insurance carrier’s permission before you can settle that auto accident case. If you do not get the workers’ compensation carrier’s permission, you will forfeit any future benefits of any kind for the work accident under the Virginia Workers’ Compensation Act. If you do not reimburse the workers’ compensation carrier for the lien they have on your auto accident, the workers’ compensation insurance carrier can sue you personally in Circuit Court to recover the money.

You should consult with us to determine how to proceed in order to avoid potentially forfeiting workers’ compensation benefits that may be due, as well as how to maximize the amount you receive from both claims.

What can Injured Workers’ Law Firm do for me?

We only handle cases that involve the Virginia workers’ compensation claims process (and related matters). Our main goal is to get you the maximum amount of injury benefits possible. There are several reasons for this. First, as an injured employee, you are entitled to certain protections and provisions under the law. Second, the more money we get for you, the more money we earn, since our fee is a contingency fee of what we recover for you.

This means that we earn a percentage of what you ultimately are awarded. Because it costs you nothing to retain our services, it’s highly advisable that you do so for a number of reasons. We will:

  • Educate you about the Virginia workers’ compensation claim process and the particular issues that apply to your case;
  • Gather evidence needed to prove your case, including medical records, payroll data, and witness statements;
  • Conduct a rigorous analysis to determine if there are any warranted third-party claims you can pursue;
  • Determine if there are any liens or potential liens on the claim;
  • Obtain reports from the physician(s);
  • Contact the Virginia Workers’ Compensation Commission to notify it of the claim and to file a formal claim for benefits;
  • Help you determine if there is any room for negotiation if the company is willing to settle your claim;
  • Prepare you, any witnesses, or any medical providers for depositions or hearings;
  • Organize, prepare, and present medical exhibits; and
  • Provide advice on how to deal with nurse case managers, vocational rehabilitation specialists, insurance adjusters, employer issues, and more. 

As you can see, we do more than simply file motion, shuffle paperwork, or show up at a hearing. The preparation and education that goes into a well-prepared workers’ compensation case and the peace of mind that you will receive as a result are invaluable. Reach out to us for your free case analysis.

I got a disease from work can this be covered?

A: It is possible to get diseases that occurred from exposure at work covered, either as an occupational disease (if it is a disease to which the general public is not exposed) or as an ordinary disease of life) if it is a disease to which the general public is exposed. There are very specific requirements that must be met in order to qualify for benefits in either of these cases.

You should speak with a Virginia workers’ compensation attorney who can discuss the specifics of your case and assist you in securing benefits and protecting your rights.

What happens if I lose permanent function of a body part?

A:

When a job related injury results in the loss of use of a certain body part or parts that are specifically included in the Virginia Workers’ Compensation Act, an injured worker may be eligible to collect benefits for the loss of use of that body part or parts. The amount of compensation differs depending on which body part is affected and the injured worker’s pre-injury average weekly wage.

The workers’ compensation statute lists the value of the complete loss of certain body parts. If the injured worker suffers a complete loss of one of the listed body parts, then the injured worker is entitled to the listed number of weeks of compensation. If the loss of use is not complete, the injured worker’s physician must assign a percentage value of loss to the body part. Then, the injured worker will be entitled to that percentage of the total amount assigned to the entire body part.

The following is a list of the body parts and the number of weeks assigned for full loss of use:

  • Thumb – 60 weeks of wage compensation;
  • First (index) finger – 35 weeks of’wage compensation;
  • Second finger – 30 weeks of wage compensation;
  • Third finger – 20 weeks of wage compensation;
  • Fourth (little or “pinky”) finger – 15 weeks of wage compensation;
  • First phalanx of the thumb or any other finger – one-half compensation;
  • Great (big) toe – 30 weeks of wage compensation;
  • Any other toe – 10 weeks of wage compensation;
  • First phalanx of any toe – one-half compensation;
  • Hand – 150 weeks of wage compensation;
  • Arm – 200 weeks of wage compensation;
  • Foot – 125 weeks of wage compensation;
  • Leg – 175 weeks of wage compensation;
  • Permanent total loss of the vision of an eye – 100 weeks of wage compensation;
  • Permanent total loss of hearing in an ear – 50 weeks of wage compensation; and
  • Severely marked disfigurement of the body resulting from an injury not otherwise compensated by this section – up to 60 weeks of wage compensation

Please note that necks and backs are not covered. Neither are lungs, kidneys, or other internal organs. The loss of us must be in the form of a percentage given to you by your doctor. Also, you cannot be receiving temporary total lost wage benefits at the same time. You may be able to receive temporary partial wage loss at the same time as the loss of use but it will count as two weeks of benefits against the possible 500 total benefits allowable. Usually the circumstance of when you will receive this benefit is that you have returned to work, you are at maximum medical improvement, a physical therapist has given you a Functional Capacity Evaluation with permanent restrictions and an impairment rating that your doctor has accepted.

Can I get reimbursed for time taken off for doctor appointments related to my work injury?

A: Yes, but you are required to try to schedule the medical appointments around your work hours if you can. Within reason, you should be able to work at least part of your normal shift before or after a medical appointment. However, if you cannot schedule the appointment around your work schedule, you are entitled to benefits for the time you miss from work.

Can I sue my employer because they were at fault for my injury?

A: No, Workers’ compensation is a no fault system. This means that the injured worker does not have to prove someone else was at fault (it can be their own fault). But it also means that if the employer is at fault, you can only receive workers’ compensation benefits.

I don’t want any trouble at work or to lose my job, what should I do?

A: The work environment can be a little uncomfortable after a work injury.  Unfortunately, the sad reality is that having an injury at work and then having a subsequent workers’ compensation claim does not protect your job. You need to communicate your work restrictions to your employer by supplying the employer with a copy of your doctor’s note after every appointment.

If your employer terminates you while the doctor has you out of work, workers’ compensation insurance can still pay your lost wages for the period that your doctor has you on a no work status.

If you are working under restrictions from the doctor, it is your responsibility to make sure you follow those restrictions at all times while also following the policies and work rules laid out by your employer. If the employer is asking you to do things outside of the restrictions your doctor has given you or is asking you to complete tasks that you are not sure if you should do, you need to notify your doctor immediately and get clarification from him or her as to what you should be doing. Remember, your doctor is the only one who can determine your work status and physical abilities and you need to always follow them whether at work or at home.

If you are terminated from your employer while you are under light duty restrictions, the circumstances of your termination can play a large factor as to whether or not you can still receive workers’ compensation lost wage benefits. If your employer terminates you from employment for things unrelated to your limited work abilities (like excessive tardiness, bad behavior, or noncompliance of work place policies) you will likely not be able to collect workers’ compensation lost wages. If the employer terminates your employment because you are unable to do your full work load due to the work restrictions or because they do not offer light duty work, you may still be eligible for lost wage benefits through workers’ compensation insurance. Each person has a “different but similar” situation and you need to talk to us to make sure you are taking the proper steps for your particular set of circumstances.

Am I responsible for actually filing a claim for workers’ compensation?

A: Yes. The injured worker is always responsible for filing the claim for benefits with the Virginia Workers’ Compensation Commission. Even if your employer completes their own accident report and sends it to their insurance carrier, they are only required to notify the Commission that you were injured which is not the same as filing a claim for benefits.  Remember, it is your responsibility to pursue your claim.

What is needed to prove my Virginia workers’ compensation claim?

A: It is the claimant’s burden to prove every element of his or her workers’ compensation case. This includes such things as your wages before you were hurt, your wages after you were hurt, that you reported your injury timely, any witnesses to your injury, what medical treatment you have received, and what work restrictions you have, just to name a few. This is why it’s important that you do your part to gather as much evidence as you possibly can.

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What is a Medicare Set aside?

A: A Medicare Set Aside, also known as a MSA, is the amount of money it is estimated will be required to protect Medicare’s interest in the future. This amount is determined by a company who specializes in preparing Medicare Set Aside proposals, typically hired by the workers’ compensation carrier.

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I’ve been waiting for approval of medical care/prescriptions but can’t get it. What should I do?

A: It may take a day or two to get approval of medications from your adjuster. However, if you cannot get a response within this time frame, we can help with getting an answer.

Must I go to the job interview?

A: Yes. If you are scheduled for a job interview, you must attend the job interview. You must dress appropriately and have a positive attitude. Initial job interviews are generally used to see if the employer feels you have the qualifications and abilities they are seeking.

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How do I report my injury?

A:

There are three ways to report your injury. First, you need to report your injury to your employer. Even if your injury was witnessed by other employees, including your direct supervisor, it is YOUR responsibility to immediately (as soon as you are able) contact your employer to advise them of your work injury and how you were injured. We recommend that you tell your supervisor as soon as you can and ask if you need to complete an accident report. If not, you can call your Human Resources Department to ensure that they have knowledge that your injury happened and all of the details (when it happened, what happened to cause the injury, and all body parts that hurt). You can also notify your employer in writing.

Secondly, you also need to file a claim for benefits with the Virginia Workers’ Compensation Commission. You can do this one of several ways. If you are computer savvy, you can register with Webfile at https://webfile.workcomp.virginia.gov/portal/vwc-portal and click on claimant registration in the top right hand corner. Once you have registered, you can complete the claim for benefits form online and upload it automatically. Alternatively, you can find the form on our website here.  You can then print the form, complete it, and mail it to the Virginia Workers’ Compensation Commission, 1000 DMV Drive, Richmond, VA 23220. Lastly, if you have no access to a computer, you can contact our office for a copy of the claim for benefits form.

You need to complete the claim for benefits as completely as you can. There are two parts- Part A and Part B. The form says that Part B is optional. Just completing Part A will toll the statute of limitations but no hearing will be scheduled and no additional action will be taken by the Commission unless you complete both Part A and Part B of the form. You also want to be sure that you include ALL of the body parts that you hurt in your work injury, the date of your injury, exactly what happened to cause your injury, and what benefits you are seeking.

Lastly, you will need to inform all medical providers of what happened to cause your work injury, the date of the work injury, and ALL body parts involved – especially and even if you feel a particular body part doesn’t hurt very much (i.e. the pain will go away). This is very important, as the insurance carrier will deny treatment for any issue that is not specifically mentioned in the initial medical report. Remember to tell the doctor exactly what hurts even a little, each time you are treated, even if the doctor tells you that the insurance company will not cover that injury. Then, each time you see a new doctor, tell them exactly what happened to cause the work injury, ALL body parts you hurt, and the date of the work injury.

I was on a business trip and got hurt in the hotel. Can I collect Virginia workers’ compensation?

A: For the most part, yes, you can collect workers’ compensation if you were on a business trip and got hurt in the hotel. The law says that injuries that occur while traveling on a business trip are covered, with some exceptions.

Slip and falls may occur in the hotel. You could get injured fixing the light fixture in the room. A bed or chair could break while you are sitting in it, causing injury. Any of these would be considered a work injury and subject to workers’ compensation.

However, if you were doing something illegal or against the hotel’s rules when the injury occurred, then you may not be eligible for workers’ compensation. For example, if you drank too much and suffered injuries from a bar fight, then that would likely not be covered. If you were fooling around in the bathroom and got injured after jumping into the bathtub, then your workers’ compensation may be denied in that instance as well.

In addition, if you were engaging in activities not related to business, then you may not be able to collect workers’ compensation. This is called abandoning employment because it is not furthering the business and you were enjoying activities for your own personal pleasure. For example, if you were gambling in the hotel and you were injured by the slot machine, then that would not be considered a work injury.

What is the truth about “lifetime” medical benefits?

A: While you may have an award for “lifetime medical benefits,” this may not necessarily mean what it sounds like. The insurance carrier is only required to cover reasonable, necessary, and causally related medical treatment. Unfortunately, it is the injured worker’s burden to prove these things. Therefore, the insurance company can, and will, deny treatment when they can. The insurance company can contest each and every doctor visit, treatment, and/or prescription based upon these criteria.

They will often get an opinion from an Independent Medical Exam (IME). An IME is an exam performed by a doctor that the insurance company picks specifically in order to ask the doctor to render an opinion on your medical condition. No treatment is rendered by this doctor, just an opinion. As you can imagine, these doctors will often but not always tell the insurance company what they want to hear; which is, that your medical treatment is not reasonable and necessary, or, in most cases, is not causally related to the work injury.

In some cases, the insurance company will not even need another doctor’s opinion. If the medical treatment recommended is not related to a body part specifically listed on your award, the insurance company is likely to deny treatment. This is why it is very important to be sure that all of your injured body parts are specifically listed on the Award Order and to be under an award.

Additionally, even if the body part is listed on the award, if there has been a gap in treatment, the insurance company will deny the treatment as not being causally related to the work injury. The longer the gap in treatment, the more likely it is that the workers’ compensation insurance carrier will deny the treatment. It is very important that you continue to receive periodic treatment if you continue to experience problems. DO NOT try to “tough it out,” as this only works against you and gives the workers’ compensation insurance carrier a reason to deny any future treatment.

If you are having problems getting your medical treatment covered be sure to contact us to discuss solutions.

What does it mean that my Virginia work injury or work related disability has to have arisen from employment?

A:

Not all injuries that take place at work are covered. A Virginia work injury or work related disability must have arisen from employment. That means that some part of your employment must have caused the work injury. Some situations are pretty clear. For example, if you suffered an injury in your back due to lifting a box as part of your job duties, then it will probably be covered because lifting boxes was part of your job. However, if you are just walking along and trip over your own feet, then the injury will not have arisen out of your employment because nothing that was distinct to your employment that caused your injury.

To make it more complicated, not every injury that arises from your employment is covered. If you are violating a safety rule when you are injured, you knew about the safety rule, and the violation of the safety rule caused your injury, then your injury did not arise out of your employment. It, instead, arose out of your failure to follow the safety rule. Also, repetitive injuries are not compensable. That means that, even if lifting boxes is your job, if you suffer a back injury because you lift boxes all day every day, it will not be covered. You have to have what is called an “injury by accident” which means that you can point to one specific incident which caused your back injury.

In cases of diseases that you may be arguing are compensable, arising out of means not only that the you were exposed to the conditions which caused the disease at work, but also that you were not exposed to those conditions outside of work. For example, asbestosis or mesothelioma can be considered to have arisen out of your employment if your job required that you work around asbestos and you were not exposed to asbestos outside of work. There are other concerns besides “arising out of” to prove compensability but you do have to prove that your injury or disease arose out of your employment to be covered.

Workers’ compensation claims can only be covered if your injury was caused by a specific condition at work. Any time you hurt yourself at work it is important that you immediately report it. You must also be able to tell your employer what caused the accident and injuries. This will help in determining if it was a work related injury or not.

Not every work injury case is the same. If you need help determining whether your injury arose out of your employment, it would be in your best interest to seek help from us to ensure that you will be treated fairly and receive the compensation to which you are entitled.

What if I cannot afford the gas money to get to physical therapy?

A: An award for medical treatment allows an injured worker reimbursement for mileage to and from doctor’s appointments, physical therapy, lab work, diagnostic testing, and other medical appointments. However,you cannot be reimbursed for mileage to and from the pharmacy to get prescriptions filled as it is assumed that a pharmacy trip will be included in the mileage for the medical appointment itself. Also, you are not entitled to mileage for litigation purposes. This means that you will not be reimbursed for mileage to and from a deposition, your attorney’s office, or to the Virginia Workers Compensation Commission.

In some cases, an injured worker can request transportation to the medical appointments and the workers compensation carrier will arrange the transportation. The injured worker usually has to have a reason why he or she cannot get to the medical appointment, such as driving restriction, car broke down, etc. You cannot receive both mileage and transportation, however.

The current mileage rate is $.555 per mile. When mileage is submitted, you will need to include the address where you started your travel, the address of the medical appointment, and the total round-trip mileage you incurred. We recommend that you calculate how much you are owed for each trip and the total you believe you are owed for each submission. We also recommend that you submit your mileage reimbursement requests monthly. This makes it easier for the adjuster to confirm that you had a medical appointment on the date you are requesting mileage and, thus, you are more likely to get your mileage reimbursement check faster than if you wait until the end of the claim or submit your mileage less frequently.

I was hurt at work, how can my claim be denied?

A: There are many reasons that your claim may be denied. Virginia is referred to as a “specific risk” state, meaning that your injury must be the result of a specific accidental injury due to specific aspect of your employment. Injuries that could have “just as likely” happened outside of work, such as falling on stairs or repetitive injuries may be denied.

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Who is supposed to pay me when I can’t work because of an injury on the job?

A: The benefits, including lost wages, are actually paid by your employer’s workers’ compensation insurance carrier-not the employer. I

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Help, I’ve been terminated from my job.

A: Whether you are entitled to any workers’ compensation wage loss benefits depends on why you were terminated. If you were terminated because of something you did that is unrelated to the work injury, i.e., job performance, tardiness, insubordination, then your workers’ compensation wage loss benefits will probably be stopped or you will not be eligible.

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I do not understand about returning to work either light duty or full duty and whether I have to look for other work.

A:  If your doctor releases you to full duty work with no restrictions then you are no longer entitled to any workers’ compensation wage loss benefits as any wage loss you have is no longer related to your work injury. However, you are still entitled to medical treatment through workers’ compensation.

If your doctor releases you to work in some capacity but you cannot perform the duties of your pre-injury job, be sure to get the doctor to provide you with a written work note outlining any applicable physical restrictions (such as lifting, bending, walking, standing, etc) to take to your employer. You must then notify your employer as soon as possible that you have been released to restricted duty. Do not assume that they cannot accommodate restrictions, even if that is your employer’s policy. Remember you have the burden of proof. If your doctor releases you to full duty, you have an obligation to immediately notify your employer and return to work.

If you have any problems with working in your normal capacity, you should immediately tell your employer and contact your doctor for a return appointment to discuss the problem. If your employer is not able to accommodate your work restrictions, you are required to look for another job and document those efforts. This is true even if you expect to return to work for the employer, or if your employer still considers you as an employee. The point of the job search is to try to minimize the amount the workers’ compensation insurance carrier has to pay you and it is a requirement of the Virginia Workers’ Compensation Commission, not the employer or workers’ compensation insurance carrier. You may wish to consult an attorney who can make sure you are taking the appropriate steps to protect and secure benefits.

Should I talk to my physician about my work restrictions?

A: Put briefly, you should always speak to your doctor about work restrictions, if it’s at all possible. You should inquire with your doctor about his or her opinion on your ability to return to work with restrictions, what those restrictions should be, what your functional capacity is for sustained labor, and anything else that might be relevant to your ability to work.

Before you leave your doctor’s office, remember to get a disability slip. In Virginia, the workers’ compensation insurance carrier will not pay your weekly check unless they have a copy of your disability slip. This slip indicates in writing that you have work restrictions and what those restrictions are, whether it be light duty restrictions of some kind or whether it be that you cannot work in any capacity at all.

It is important that you get these disability slips from your doctor before he hands them off to the workers’ compensation insurance company.  Many times, a nurse case manager may attempt to unjustly influence your doctor’s opinion on your work status and get the doctor to change it.

In this way, if you address the issue before your nurse case manager attempts to, you’ll at least have the chance to give the doctor your perspective and emphasize the pains and limitations that you’re still experiencing.

When you speak with your treating physician, mention each of the body parts that were injured. In many cases, an insurance adjuster will try to deny compensation for a body part that’s not mentioned in the first appointment and it’s useful to reiterate each of the injured body parts in the rest of your appointments.

For instance, if you have a neck pain that’s so severe that it makes your shoulder pains seem unimportant, remember to mention both.

This disability slip is also important if workers’ compensation insurance begins vocational rehabilitation with you because it outlines what your work restrictions are and the workers’ compensation insurer is obliged to stay within those restrictions.

Once you have these work restrictions, be sure that you keep all of your activities within those work restrictions. If you return to work and you are asked to perform activities that you believe is more than what your doctor has released you to do, then speak up. Tell your supervisor that you do not think that the work is within your work restrictions. If you have not returned to work, be sure that you are not doing anything at home that the doctor has not allowed. The chances are good that the workers’ compensation insurance carrier has hired a private investigator to follow you to catch you in the act of doing something you are not supposed to be able to do. If you are not doing anything that “appears” wrong, then the workers’ compensation carrier cannot cut your check off.

If your employer continues to ask you to do things that are outside of your work restrictions or you have other questions about work restrictions, please call us for a no-obligation consultation to ask questions about how the claim will be handled and what obstacles you might encounter along the way.

What mistakes do I need to avoid or be aware of when handling my workers’ compensation claim?

A: There are many mistakes that you should avoid making. The best way to avoid them all is to seek the advice of an experienced workers’ compensation attorney. However, some of the most common include:

  • Signing a general release. This means that you sign a release for the workers’ compensation carrier to get any medical records pertaining to you but does not name a specific medical provider. The insurance carrier may use it to obtain ANY prior medical records not just medical records related to your workers’ compensation claim.
  • Thinking that the workers’ compensation adjuster will “take care of you” just because he or she says they will. If you are not under an Award for benefits, the workers’ compensation insurance company can terminate your benefits at any time. Even if your workers’ compensation adjuster is the nicest most trustworthy person and meant every word he or she said, that person will probably not always be the adjuster on your case. Insurance adjusters change all the time and the next adjuster might not be quite as nice or trustworthy. It is your job to be sure that your rights are protected under the Act. That means filing a claim for benefits with the Virginia Workers’ Compensation Commission.
  • Asking for lost wages when you are not under an Award and are not looking for a job. If you are not yet under an Award and your doctor says you can work in some capacity, then you have to look for a job. You will not be eligible for or awarded wage benefits if you are not looking for a job and you have some ability to work. This applies even if you do not think you can work but your doctor thinks you can. This applies even if you are able to go back to work for the employer and are still employed by them and they gave you a job working less hours. You need to try to find a job to make up the difference in your income.
  • Not attending vocational rehabilitation meetings. If you have an ability to work in some capacity and have been assigned to vocational rehabilitation, you have to attend the vocational rehabilitation meetings. You need to cooperate as fully as possible with the vocational counselor, do everything that is asked of you, and be polite while doing it. The vocational counselor can have your benefits terminated just by telling the adjuster that you are not attending the meetings or cooperating in some way.

What are my Rights and Responsibilities to pursue a workers’ compensation claim?

A: Under the Virginia Workers’ Compensation Act, an injured employee is entitled to a potential 500 weeks of lost wages, including temporary total, temporary partial, and permanent partial disability benefits, and payment of medical treatment for as long as the need for the medical treatment is necessary and related to the work injury.

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What if I get paid less after my injury?

A: If you have work restrictions of some kind that prevent you from doing the job you were doing before you were hurt and you find that you are earning less than you were earning before your injury (as a result of less hours, a reduced hourly rate, or both) you may be entitled to partial compensation, called temporary partial disability benefits.

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My workers’ compensation claim was denied, what should I do?

A:  There are many reasons that your claim may be denied. You may have said “I am not sure what I did/why I fell/I didn’t feel any pain at the time.” The reason does not necessarily mean that you do not have a case. Thousands of cases are denied. I, along with numerous other workers’ compensation attorneys, have jobs/careers based upon the fact that adjusters wrongfully deny claims all of the time. Call our office to get a free analysis of your claim to find out if you should continue pursuing workers’ compensation.

My wage check is often/always late. What should I do?

A: If you are under an Award and the benefits check is more than 14 days late, you can file a claim with the Virginia Workers’ Compensation Commission for penalties for the late payments.

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What is a third party claim?

A: 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 are job re-training and vocational rehabilitation benefits?

A: If an injured worker is under an award and is able to work in some capacity, but is not able to return to his or her pre-injury job, then the workers’ compensation insurance company may assign a vocational rehabilitation counselor to assist the injured worker in finding a job. It is usually done after permanent restrictions are assigned by the treating physician but can be done before the restrictions are permanent. vocational rehabilitation after a work related accident is meant to accomplish two ends:

  1. To return the injured worker to some form of employment; and
  2. To mitigate the expenses of the employer in terms of accident work compensation payments, as a result of the injury

It is required that the injured worker participate if it is offered but calling it a “benefit” is somewhat misleading. It does not mean that the employer or insurer is interested in helping the injured worker find a job that is interesting, useful, or enjoyable by the injured worker – only that the employer or insurer wants to find the injured worker a job that pays him or her money so they do not have to. It also does not mean that the employer or insurer is required to pay for the injured worker to return to college or get any real form of helpful job re-training. It usually means requiring the injured worker to complete his or her GED or take online typing courses or basic computer classes to make it easier for the employer and insurer to find the injured worker a job that pays wages so they do not have to.

It is important to realize that, as far as the insurance company and employer are concerned, the chief objective of vocational rehabilitation is to stop paying the injured worker’s weekly lost wage check. This can be done two ways using vocational rehabilitation:

  1. Finding a job for the injured worker; or
  2. Gathering enough evidence that the injured worker is non-complaint with vocational rehabilitation in order to file an application to terminate the injured worker’s wage benefits.

What can I expect when I meet with a vocational rehabilitation counselor?

A: At the initial interview, the vocational rehabilitation counselor gathers information about you: your prior work history, prior work skills and education, criminal history, and your general interests. Thereafter, you generally meet at a public place such as a library or restaurant. The counselor will put a resume together for you and give you five (5) to ten (10) job leads per week. You have to apply for these jobs.

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The adjuster/rep doesn’t respond to me, never returns my calls. What should I do?

A: The adjuster is technically not required to contact you, but it is extremely difficult to handle a workers’ compensation claim properly without communication with you. If you have both called and written to the adjuster and cannot get a response, it may be time to file a claim for benefits to ask the Commission to intervene.

Does an amputation injury require special procedures under Virginia workers’ compensation?

A: An amputation is one of the most serious injuries at work that can affect you. Losing a limb is a life changing event and can cause long lasting disability and pain. If this has happened, you will likely want to file a workers’ compensation claim to get help for medical bills and other expenses.

However, since an amputation is a serious situation, there are certain procedures and rules that will apply.

If you lost significant use of more than one extremity, then you may qualify for benefits for the rest of your life.

Most injured workers’ benefits are limited to a total of 500 weeks, including both lost wages and loss of use. If you are never able to work, you will only receive 500 weeks of compensation. However, if you are able to return to work in some capacity, once you return to work, you will then be entitled to an additional period of benefits according to the following list:

  • Arm – 200 weeks of compensation;
  • Leg – 175 weeks of compensation;
  • Hand – 150 weeks of compensation;
  • Foot  – 125 weeks of compensation;
  • Thumb – 60 weeks of compensation; and
    • Index (First) finger – 46 weeks of compensation
    • Middle (Second) finger – 30 weeks of compensation
    • Ring (Third) finger- 20 weeks of compensation
    • Little (Fourth) Finger= 15 weeks
    • Great toe- 30 weeks of compensation
    • Any other toe- 10 weeks of compensation

While the benefits and payment may be conditional, you still want to protect these benefits by filing a claim for benefits when your doctor has said you are at maximum medical improvement and has given you an impairment rating to your partial or total loss of your limb. In Virginia, there are no benefits for loss of use for your neck or back. There is also no such thing as compensation for a “whole body” impairment rating.

What is the first step that I should take after a work injury?

A: You should immediately notify your supervisor about the accident. Even if you do not think you need medical attention, you should still report your injury. Next, you should file a workers’ compensation claim with the Virginia Workers’ Compensation Commission. You can get a copy of the form on this website.

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How do I change my workers’ compensation doctor?

A: Once you have started a course of treatment with a doctor, he/she is considered your workers’ compensation doctor and you are required to continue seeing them in order to receive your workers’ compensation benefits.

If you would like to change your doctor, it must be approved by your employer or insurance carrier before you make such a change and seek treatment with the new doctor. I rarely have seen them agree to a change. If your employer or insurer does not approve the change, you may petition the Virginia Workers’ Compensation Commission, who may approve the change.

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What happens if someone dies due to a workers’ compensation accident?

A: If someone dies in a compensable workers’ compensation accident their dependents may be eligible to receive death benefits that cover funeral and burial expenses. In addition, they could also be entitled to receive up to 2/3 of their loved one’s average weekly wage for up to 500 weeks.

When there are multiple dependents, such as a spouse and children, then the weekly benefit is divided up amongst them. However, if the spouse remarries, the spouse will no longer receive that benefit. Once the children reach the age of 18, they must be enrolled full time in school to continue receiving the benefit.

What happens at a deposition?

A: A deposition is the insurance company’s opportunity to speak with you and ask you questions before the scheduled hearing. It is part of what is called “discovery.”

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How much do I get paid and for how long?

A:  How much you will get paid and for how long depends on many factors. You get 2/3rds your pre-injury average weekly gross wages. The total lost wage benefits paid, with only a few exceptions, are limited to a total of 500 weeks. This includes any temporary total disability benefits for full days out of work, temporary partial disability benefits for partial wage loss or partial days lost from work, and any permanent partial disability benefits for a loss of use of any extremities. However, you are not guaranteed all of the 500 weeks of compensation. If you do not lose time from work in the first two years, you will usually not be entitled to any wage loss benefits. If you are not under an award and you can work in some capacity but the employer does not have any work for you, you have to look for work.  If you are not looking for work, you may not get any benefits. If you are under an award and are put in vocational rehabilitation to find a job and do not cooperate, your benefits may be cut off. If you return to work with work restrictions making as much as you made before your work injury, then you have to miss time from work again within two years of the date you returned to work making as much as you made before your work injury or you may lose your entitlement to any benefits in the future. In some cases, when you have missed time from work, you have to request additional benefits within 90 days of the missed time from work in order to receive the benefits you have requested.

Workers’ compensation in Virginia is very complicated and there are many pitfalls that can affect your entitlement to benefits.

Will my Virginia unemployment benefits affect my workers’ compensation benefits?

A: Yes, your Virginia unemployment benefits will be affected by your workers’ Compensation benefits and vice versa.

  • If you are totally incapable of working, you will not be entitled to unemployment benefits.
  • If your Virginia workers’ compensation claim was denied and you have been given light duty work restrictions,you might be entitled to unemployment benefits.
  • If you were laid off or if your employer cannot accommodate your light duty work restrictionsthen you can pursue unemployment benefits.
  • However, if you eventually win workers’ compensation benefits for periods in which you collected unemployment benefitsit will be mandatory for you to pay back the unemployment benefits to the Virginia Employment Commission.

What is the difference between a “personal injury claim” and a “workers’ compensation claim?”

A: A personal injury claim is one caused by another party, called a third party, who is not your employer or co-worker. Sometimes, the same accident can trigger both a workers’ compensation claim and a personal injury claim. A good example of this would be if you are driving a company car on your way to a work location and your car is hit by another driver.

Because the accident occurred while you were working, you can have a workers’ compensation case and you can also have a personal injury case against the driver of the vehicle that hit you.

What is a claim for benefits?

A: A claim for benefits is the name given to the document on which the injured worker asks for the benefits he or she is seeking. It can be the formal document entitled “Claim for Benefits” but it can also be something as simple as a letter. The fact that a document was filed listing an injured workers’ date of injury, body parts injured, and benefits requested is more important than the form on which it is written.

What documentation will I need when filing a workers’ compensation claim?

A: 

When you’ve been injured on the job in Virginia and you are filing for workers’ compensation benefits, different documentation will be needed at different times. While the days and weeks following an injury can be difficult, it’s important to gather and protect this vital paperwork as you receive it. Some of the documents are simply used to identify you and your place of employment, while others are meant to demonstrate the extent of your injuries and nature of the accident or condition causing your illness or injury.

When you first report the injury to your employer, you will probably need to complete an incident report. It is best, if you can, to keep a copy of this report.

When you file your claim for benefits with the Virginia Workers’ Compensation Commission, you will need to include the medical records related to your treatment with your claim. If you do not have the complete set of records, you can just file what you have at the time but be sure that you get the additional records before you go to a your hearing, as more will be needed at a hearing.

The additional records you will need include:

  • medical reports and records to show that the work injury caused your medical condition and to show you have work restrictions due to the work accident;
  • your employer’s contact information and witness information;
  • pay stubs or other proof of your earnings from one year prior to the work accident and continuing;
  • if you have been able to work since the injury and are suffering a wage loss, all pay stubs or proof of all of your income since the work injury;
  • proof you have been looking for employment if you have work restrictions and your employer cannot accommodate the restrictions; and
  • receipts and documents for reimbursements for mileage and prescription.

Each case is different so additional documentation may also be needed.

Remember the injured worker has to prove everything.

What does Medicare have to do with my workers’ compensation claim when I haven’t even filed for Medicare?

A: Federal law requires that Medicare’s interest be considered in every settlement. Exactly what Medicare’s interest is depends on how close you are to being entitled to Medicare. For example, if you have filed for Social Security Disability and it is approved, then you will be entitled to Medicare in at least 24 months. Also, everyone is Medicare eligible at 65, even if they choose not to take it. If you are close to being entitled to Medicare for whatever reason, then you need to be very careful that you take Medicare’s interest into account when settling your workers’ compensation case.

What is a Functional Capacity Evaluation?

A: A Functional Capacity Evaluation (also referred to as “FCE”) is a detailed series of tests performed by a licensed physical therapist to determine if you have any physical limitations as a result of your injury.

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My nurse case manager wants to switch my treating physician but I don’t agree. What should I do?

A: You should never permit your nurse case manager to switch your treating physician without your consent. This comes close to violating the workers’ comp rules.

Sometimes, a nurse case manager will try to switch your physician when the physician’s medical opinion of your condition is inconvenient for the insurance adjuster, particularly with your work restrictions and your capacity to work.

This “doctor shopping” is an outright abuse of the system.

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What if I can never return to work after my injury? Can I get workers’ compensation wage benefits for life?

A: Usually, and in most cases, no. You will be limited to 500 weeks of wage compensation. However, there are some exceptions. If you have been severely injured on the job and are unable to return to work, you may qualify for permanent disability payments through workers’ compensation insurance. Proving permanent disability can be difficult and it requires a lot of evidence and documentation like medical records.

As a disabled worker, first determine if you suffered an injury that may automatically qualify for permanent disability through workers’ compensation. These are typically very serious injuries like spinal cord injuries with paralysis in more than one extremity. Also, an amputation of or severe inability to use at least two extremities (hands, arms, legs, or feet) may automatically qualify as well. Like paralysis, the loss of a limb greatly affects your ability to perform most jobs and even seemingly menial tasks.

Severe brain or head injuries have similar effects. Head injuries that commonly qualify for permanent disability are evidenced by severe coordination or motor control difficulties, problems communicating, and more. Severe burns or total blindness may also automatically qualify.

If your injury was not listed here but it is preventing you from performing in any line of work within a 50 mile radius of your home, you can still qualify. Your ability to return to work is defined by your injuries as well as your job experience, training, and the job market in your area. We can help you sort through your medical records and testimony to figure out if you qualify for permanent total disability.

What happens if Medicaid is paying for my medical care?

A: If Medicaid is paying for your medical treatment, then Medicaid will assert a lien against any settlement money you receive from the workers’ compensation insurance carrier to cover any payments Medicaid made to any medical provider related to treatment as a result of your work injury. If you have an Award Order for the medical treatment, you need to notify your doctor, Medicaid, and the workers compensation insurance carrier that Medicaid is paying for your treatment and should not be.

If Medicaid is paying for your treatment because the workers’ compensation carrier is denying your claim, Medicaid will need to be reimbursed if you are later able to get this treatment covered by workers’ compensation insurance.

Can I settle my workers’ compensation claim?

A: Yes, workers’ compensation cases can be settled in Virginia. However, settlement is voluntary, which means it requires the agreement of both sides to settle and both sides must agree on the amount of the settlement.

The benefits usually included in a workers’ compensation settlement are:  potential future wage loss, potential permanent impairment, and potential future medical treatment. If you are settling your workers’ compensation claim before you have obtained an Award Order, sometimes past wage loss and medical costs already incurred will be included.

Unfortunately, a workers’ compensation settlement will never include any money for pain and suffering, no matter how hard the case has been on you and your family, what you have lost as a result of your injury(ies), or how badly the employer  or workers’ compensation insurance carrier treated you after your injury(ies). There is no pain and suffering payable in workers’ compensation in Virginia. We can answer your questions and can evaluate your case if you are considering this option.

If I had/have a pre-existing injury will it be difficult to prove my workers’ compensation claim or get workers’ compensation benefits?

A: If you suffered an aggravation to a pre-existing condition, then the aggravation should be covered by the workers’ compensation insurance carrier. However, it mayl be more difficult to get workers compensation benefits as the workers’ compensation carrier will probably try to argue that the problems you are having are related to the pre-existing condition and not your new injury. That does not mean that it will be impossible to get the injuries covered, only that it will be more difficult.