Virginia Workers’ Compensation Frequently Asked Questions

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.

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.

Yes. The injured worker is always responsible for filing the Claim Form 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 Form.  Remember, it is your responsibility to pursue your claim.

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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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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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.

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.

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.

A Claim Form 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 Form” 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.

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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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.

A: The Virginia Workers Compensation Commission has an uninsured fund. If your employer was suppose to have workers’ compensation insurance and they did not, you can still get your workers’ compensation benefits through the uninsured fund. Your benefits will be the same as if your employer did have insurance. There is one difference and that is that your claim will automatically be contested. The uninsured fund cannot automatically accept the compensability of a work injury.

You need to file a Claim Form with the Virginia Workers’ Compensation Commission and go through the litigation and hearing process. If you prevail, the uninsured fund will seek reimbursement from your employer. Sometimes there are companies that are called “statutory employers” who will be liable for your work injury. For example, if you work for a subcontractor and are hurt on the job and the subcontractor has no workers’ compensation insurance, you may get workers’ compensation benefits through the general contractor’s workers’ compensation insurance. It is best to speak to an attorney if your employer has no insurance to determine if there are any statutory employers in your case!  It is a free consultation.

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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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.

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

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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.

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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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.

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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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.

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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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 restrictions, then you can pursue unemployment benefits.
• However, if you eventually win workers’ compensation benefits for periods in which you collected unemployment benefits, it will be mandatory for you to pay back the unemployment benefits to the Virginia Employment Commission.

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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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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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.

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 Form;
• 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.

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.

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.

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

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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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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.

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 Form to ask the Commission to intervene.

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.

You will never get less than what is offered. It is best to talk to a workers comp attorney to see how much more you can get. Since insurance companies always pay significantly less to unrepresented workers.

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 (866) 461-0182.

The Injured Workers Law Firm serves workers throughout Virginia. We also help those who live outside the state but who have suffered a work injury in Virginia.