Immediately notify your supervisor of your injury. Explain how you were hurt, whether you were carrying/moving anything, bending/twisting, identify any witnesses, and so forth. These details may well become important later. Request that an accident report be completed. While the law grants you thirty days to notify your employer of an accidental injury, the sooner you tell your supervisor of a work related injury, the better.
For occupational disease claims, you must give your employer notice when you learn that you contracted a work related occupational disease. Inform your supervisor as to what you were doing when injured, and the nature of your injury. Keep your employer informed as to how you are progressing medically, and make copies for your employer of any doctor’s notes taking you out of work or giving you light duty restrictions. This will help defeat any allegation by your employer that your injury was unreported or that it wasn’t sustained at work. Your employer should also be filing an injury report with the Virginia Workers’ Compensation Commission.
You will also need to file your claim with the Virginia Workers’ Compensation Commission (not just your employer and their insurance carrier) within two years from the date of your accident to protect your rights unless the Commission has already entered an award.
Accidental injuries and some occupational diseases are covered. To be considered an accident, the injury must have occurred at work or at a work-related function, be caused by a specific, work related activity, and happen suddenly at a specific time.
To be considered a covered occupational disease, it must be caused by the work, not be a disease of the back, neck, or spinal column, and be supported by medical evidence showing the condition is a disease.
Not covered are injuries that occur gradually over time or from repetitive or cumulative trauma, even if they are related to your employment. Ordinary diseases of life to which the general public is exposed outside of employment are also not covered. Possible exceptions to this include carpal tunnel syndrome and hearing loss claims. They are harder than an accidental injury to get established as compensable, but not impossible.
Workers’ compensation is supposed to provide employees who get injured on the job with medical coverage for their work related injuries, wage replacement benefits, mileage reimbursement, and other benefits where applicable, such as permanent impairment benefits. However, within the Commonwealth of Virginia it is common for injured workers to encounter various problems throughout the workers’ compensation process.
For example, the workers’ compensation insurance carrier can deny your claim, arguing that your injury was not work related, did not occur in a manner that would be covered under workers’ compensation, or was not properly reported to your employer. You may have difficulty obtaining adequate medical care, getting the medical testing or care that you need, or being told to return to work while you are still in pain. You may be having trouble reaching the insurance adjuster, having your wage replacement checks stopped, or even losing your job while you are out of work due to your injury.
We help our clients obtain the workers’ compensation benefits to which they are entitled and deserve. We coordinate and collect evidence to support our clients’ claims, handle the necessary filings with the Virginia Workers’ Compensation Commission and the insurance carrier, and intercede on behalf of our clients with insurance carriers, doctors, nurse case managers, and defense counsel . When there is a dispute between the workers’ compensation carrier and the injured worker, we represent our clients at hearings held before the Virginia Workers’ Compensation Commission, and handle appeals as needed. We also serve as a source of information for our clients so that they can better understand the Virginia Workers’ Compensation system, and thereby avoid making costly errors.
Initial consultations are free. We accept no attorneys’ fees for our efforts unless and until they are awarded by the Virginia Workers’ Compensation Commission, which sets forth attorneys’ fee restrictions that apply to all attorneys who handle workers’ compensation cases for injured workers within the Commonwealth of Virginia. These are on a contingency fee basis.
Attorney fees in workers’ compensation cases, and at The Moses Law Firm, PC, are generally contingent fees, meaning they are only payable to the lawyer when you receive a benefit or settlement. This is most often out of funds collected for the injured worker, and if nothing is collected, there is no usually no attorney fee. The Virginia Workers’ Compensation Commission could award a small attorney fee if the attorney was able to have a disputed medical benefit, such as surgery, awarded even if there was no additional money moving. The fee is usually a percentage of the benefits collected, often 20% and sometimes less. The lawyer’s fee is not due and payable unless and until approved by the Workers’ Compensation Commission. This system allows essentially anyone, no matter how difficult their financial situation, to afford a lawyer in a workers’ compensation case.
That depends upon how long after the accident you are telling your employer about your injury, whether there were witnesses to the accident, the type of injury you sustained, how long it took you to get medical treatment, and what your doctors are saying about how you got hurt. The longer you wait to tell your employer, the more likely the insurance carrier will argue that the injury didn’t happen at work. If you got immediate medical treatment, there were witnesses, and the medical reports reflect a work related accident history, that can help, but in general you should report an injury right away.
Settlement of a workers’ compensation claim is voluntary – nobody can make the carrier settle a claim, and nobody can make an injured worker settle a claim. This is because settling your claim (a full and final settlement) shuts it down – no more medical paid, and no more wages paid. What you are doing in essence is selling your entire claim – wage loss benefits, medical, everything, back to the carrier, and the carrier is paying you for it in a tax free lump sum. Once a claim is settled, it can’t be reopened. Because settlement does permanently close the case, before you settle I strongly suggest contacting us first.
If your case is voluntarily accepted as compensable by the employer/carrier, you should be presented with a panel of three physicians and asked to choose one. While your selected physician can, and often does, refer you to other doctors, you cannot go outside the chain of referral. In other words, for your medical bills to be paid, you can only be treated by the physician you initially selected or another health care provider that he/she referred you to. If you later wish to change physicians, you must obtain the approval of the employer/carrier (get it in writing for your protection) or after a hearing by the Commission.
If your case has been denied by the employer/carrier, or a panel of physicians is not offered to you after notice is given of your injury, begin treating with a physician of your choice. However, the same chain of referral rules set forth above apply.
Carriers often use the defense that an injured worker has been treated outside of the chain of referral to avoid paying medical bills directly related to the injury, so be careful of this.
It is also important to receive treatment frequently, because workers’ compensation wage replacement benefits are in part dependent upon the carrier receiving medical documentation of your condition.
In accepted cases, medical bills are sent directly to the carrier for payment; there is no co-pay. Please also remember that you are entitled to mileage reimbursement (currently at 50.5 cents a mile) for travel to your medical providers, including physical therapy treatments. Keep track of your mileage, where you went, and the dates that you were treated, for submission to the carrier.
Total and partial wage replacement benefits are limited to 500 weeks, whereas coverage for medical treatment related to your work injury continues throughout your lifetime. The only exception to this 500 week limitation is for permanent total disability. However, to be found permanently totally disabled, your injuries would need to be catastrophic (such as the loss of both hands or arms in the same accident, paralysis, or severe brain injury).
If you should find work that meets your medical restrictions, but you are earning less than your pre-injury average weekly wage due to work restrictions related to your injury, you may be able to receive partial wage replacement benefits. The amount of your partial wage replacement benefits is calculated using two-thirds of the difference between your pre-injury gross average weekly wage and your current gross earnings.
If you sustained a permanent loss of use of a body member, vision, hearing, or disfigurement, you may be entitled to a permanency award in addition to your other workers’ compensation benefits. When you have reached Maximum Medical Improvement (MMI), request that your physician assess whether you have sustained a permanent loss of use, and if so, in what percentage. The workers’ compensation statutes set forth how many weeks of benefits a total loss of use of a body part is worth, and permanency benefits are paid at the total disability rate. For example, if your physician found that you sustained a 30% schedule loss of use of your arm (total loss of use of an arm is 200 weeks), then you could receive 60 weeks of additional total disability benefits.
Don’t be surprised if the carrier sets up an Independent Medical Examination (IME) for you to attend, which allows a doctor of their choice to evaluate your condition, disability, and permanency.
Unfortunately, there is no recovery for pain and suffering for Virginia workers’ compensation cases. There are also no permanency awards for back, spine, and neck conditions, even when they are clearly permanent in nature. Permanency claims must be made within three years of the date for which you were last paid compensation under an award.
You cannot receive a permanency award (since it is paid at the total disability rate) when you are already receiving total disability payments. However, you can receive your permanency award when collecting partial disability benefits.
The first thing to do is not to give up. If you believe that you sustained a work related accident or occupational disease that should be compensable, request a hearing from the Virginia Workers’ Compensation Commission. You can do this by filing a “Claim for Benefits” form either by mail or electronically, and attach a copy of your denial from the carrier. The main office of the Virginia Workers’ Compensation Commission is in Richmond, and their toll free number is 1-877-664-2566; the Virginia Workers’ Compensation Commission also maintains a website atwww.state.va.us Hearings are held in District offices as well as in Richmond, and the closest district office to Southwest Virginia is in Roanoke.
It is not unusual for even contested cases to settle. However, whenever a settlement is being considered – be very careful. Most settlements call for the termination of both medical and wage replacement benefits in exchange for the settlement amount; this is often called a “full and final settlement.” Once a case settles in this manner, it cannot be reopened. Accordingly, you need to be comfortable with this or try to negotiate a different type of settlement.
What happens when your physician clears you to return to work with restrictions, or light duty work? An employee who is partially disabled (able to perform light duty work) is required to search for light duty work within his/her restrictions in order to receive wage replacement benefits if the employee is not under an open award.
Accordingly, if you are not already under an open wage replacement award, when you are released to return to work with restrictions, immediately give those restrictions to your employer and inquire as to whether they can accommodate you. If they can, don’t worry if they pay you less or if you work fewer hours; take the job and file a claim for partial wage replacement benefits with the Virginia Workers’ Compensation Commission. However, if you take a job that pays substantially less than your pre-injury job, you should continue looking for a higher paying job.
If your employer can’t or won’t take you back, and you are not under an open wage replacement award, then you must “market your residual capacity,” which simply means that you must try to find other work within your medical restrictions. This is true even if your employer is willing to take you back when you are fully recovered.
The failure of an injured worker to market their residual capacity is a favorite and often utilized defense by carriers. If they prevail on these grounds, they can deny you wage replacement benefits for any periods that you are partially disabled and failed to adequately market.
To avoid this unhappy result, when you are partially disabled make sure to apply for at least five jobs per week that you believe may be within your medical restrictions and that you have the training to do, or that you can reasonably learn on the job. There is no need to accept work that is outside of your restrictions.
Benefits available to injured workers’ under the Virginia Workers’ Compensation Act include:
Wage Replacement (temporary total or temporary partial)
While the injured worker is temporarily unable to perform any work, he/she is entitled to two-thirds of his/her gross pre-injury average weekly wage. If the injured worker cannot return to regular work and is given a light duty job earning a wage lower than their gross pre-injury wage, they are entitled to two-thirds of the difference between the pre-injury wage and the wage currently being earned. The amount of these weekly benefits is limited pursuant to the minimum and maximum rates allowed by the Act.
There must be seven days of disability before wage replacement benefits are payable. However, if disabled for more than three weeks, the employee receives payment for the first seven days. Wage replacement benefits cannot exceed 500 weeks unless the person is totally and permanently disabled.
Lifetime Medical Benefits
Medical expenses for conditions caused by the accident or occupational disease are payable for as long as necessary. In an accepted claim, the injured worker must select a doctor from a panel of three physicians provided by the Employer/Claim Administrator. If a panel is not offered within a reasonable period after notice of the accident, the injured worker may seek treatment from any physician. The treating physician may refer the injured worker to other doctors. Once treatment begins, the physician cannot be changed without the approval of the Employer/Claims Administrator or after a hearing by the Commission. The injured worker must cooperate with medical treatment or the weekly benefits may be suspended. The injured worker is entitled to reimbursement for out-of pocket medical expenses and medical mileage. All medical bills should be sent to the Claims Administrator for payment.
Permanent Partial Impairment
Separate benefits are payable for the permanent loss of use of a body part such as an arm, leg, finger, or eye. Vision and hearing loss, as well as disfigurement may also be compensated. This does not include the back, neck or body as a whole. Benefits are for a specific number of weeks depending on the percentage of loss. The injured worker can potentially receive these benefits when Maximum Medical Improvement (MMI) has been reached. Maximum Medical Improvement means that the loss of use to a “ratable” body part is stable and will not decrease. However, the injured worker may well require future treatment.
Permanent and Total Disability
Lifetime wage benefits may be payable if an injured worker loses both hands, arms, feet, legs, eyes or any two in the same accident, or is paralyzed or disabled from a severe head or brain injury. Permanent and total disability removes the 500 week wage replacement limitation.
A surviving spouse, children under 18, children under 23 enrolled full time in an accredited educational institution, parents in destitute circumstances or other qualifying dependents may be entitled to wage loss benefits. Death benefits include funeral expenses not to exceed $10,000 and transportation cost of $1,000.
Cost of Living Adjustments
A person receiving temporary total, permanent total or death benefits is entitled to cost of living increases effective October 1 of each year if the date of accident is prior to July 1 of that year and if the combination of compensation and Social Security benefits are less than 80% of the pre-injury earnings. Cost of Living Adjustment (COLA) must be specifically requested by the employee.
Information taken from “A Brief Guide to Workers’ Compensation for Employees”, Virginia Workers’ Compensation Commission; “Workers’ Compensation Benefits, Part 2 of the Brief Guide to Workers’ Compensation for Injured Workers”, Virginia Workers’ Compensation Commission.
Hearings are conducted at the Commission’s central office (1000 DMV Drive, Richmond, VA 23220) as well as its regional offices. There are additional hearing sites located throughout the state. The locations and directions to these additional hearing sites are as follows:
Clarke County General District Court
104 N. Church Street
Berryville, VA 22611 Click here for map
Big Stone Gap
United States Federal Courthouse, Third Floor Law Library
322 East Wood Avenue
Big Stone Gap, VA 24219 Click here for map
Big Stone Gap
Mountain Empire Community College
3441 Mountain Empire Road
Phillips-Taylor Hall, 2nd Floor
Big Stone Gap, VA 24219 Click here for map
Bristol Public Library
701 Goode Street – Conference Rm 2nd Floor
Bristol, VA 24201 Click here for map
Second Floor Council Chamber
610 East Market Street
Charlottesville, VA 22902 Click here for map
Alleghany County Circuit Court, Courtroom – Second Floor
266 W Main Street
Covington, VA 24426 Click here for map
Danville Regional Airport
424 Airport Drive
Danville, VA 24540 Click here for map
Northampton County Circuit Court
5229 The Hornes
Eastville, VA 23347
(757) 678-0465 Click here for map
3020 Hamaker Court, Suite 100
Fairfax, VA 22031 Click here for map
Paul D. Camp CC, Reg. Workforce Dev. Ctr.
100 N College Drive
Franklin, Va 23851
There are signs for PDCCC Click here for map
Fredericksburg City Hall
715 Princess Anne Street – Council Chambers
Fredericksburg, VA 22401 Click here for map
Harold Snead Public Safety Building
353 N Main St, Suite 205
Galax, VA 24333 Click here for map
Buchanan County Public Library
1185 Poe Town Road
Grundy, VA 24614 Click here for map
Hampton City Council Chambers
22 Lincoln Street
Hampton, VA 23669 Click here for map
When an injured worker is under an open wage replacement award, the insurance carrier wants to get them off wage replacement benefits to save money. This is especially true when it appears that an injured worker, who is released for light duty work, may still be on wage replacement benefits for awhile due to their injury. In such situations, the insurance carrier often tries to settle the case so that they can contain their exposure on the file. However, if the injured worker doesn’t want to settle their case then (perhaps they still need expensive medical care, the carrier doesn’t offer enough money or the timing is otherwise not right) the insurance carrier will likely turn to vocational rehabilitation.
Vocational rehabilitation counselors are hired by the insurance carrier, and their job is to find you a job. If they don’t find you a job, they are failing the insurance carrier. The voc rehab counselors don’t really care what kind of job they find you as long as it is within your doctor’s restrictions. It doesn’t matter how much it pays or how many hours a week it is because the insurance carrier makes up two thirds of the difference between your pre-injury average weekly wage and your new gross earnings. Vocational rehabilitation shouldn’t send you more than 50 miles one way from your home, and in general telemarketing, commission sales positions, and sheltered workshop positions are inappropriate. Injured workers need to work with vocational rehabilitation or risk losing their wage replacement benefits. Vocational rehabilitation will still force you to look for work even if you are on Social Security Disability. As long as your workers’ compensation doctor has you on light duty work restrictions, vocational rehabilitation can work with you if your own employer can’t accommodate your restrictions. You can get mileage reimbursement to wherever a vocational rehabilitation counselor is sending you if you claim it. There are many issues with vocational rehabilitation counselors, and if you are having difficulty please contact us.
Unfortunately, yes. In Virginia, your employer can fire you even if you are out of work with a workers’ compensation claim, unless there is a contract that says otherwise, like a union agreement. Unless there is a specific agreement between the employee and the employer, an employer can fire someone who has been hurt at work. The justification for this is not that you are being fired for being hurt at work, but rather that the employer needs someone to do the job, and you can’t do it anymore. While being fired due to your work injury doesn’t stop your workers’ compensation claim, it is a very upsetting result if you lose your health insurance or other work benefits. If you are being fired or laid off because of your work injury, please call us – there are steps that should be taken to protect your workers’ compensation claim and to make sure that you are getting all the benefits that you can.
How much a claim is worth is very individual to the claim itself, and it depends upon the severity of the injury, the amount of medical treatment and lost time, and how much the claim is costing the insurance carrier, as well as how much the carrier thinks the claim will cost them in the future. It also matters whether the insurance carrier can legally deny the claim or parts of the claim; if they do the claim may be worth less money. To have your claim evaluated as to its settlement worth, please set up an appointment with us and bring any records you have regarding your injury with you.
Unfortunately, this happens a lot. The carrier may not be in a hurry to get you wage replacement benefits or medical coverage. The claims adjuster may have too many files to properly handle and so only respond to problems. A problem for a claims adjuster is a case heading into litigation before the Virginia Workers’ Compensation Commission. When we litigate our cases, the claims adjuster must address the situation, and we can get issues and problems resolved.
If you have filed a workers’ compensation claim and are not getting any response, please contact us to discuss your case and find out how we can help you.
In general, if your case has been accepted as workers’ compensation, it is often best to delay settling with the insurer until your most expensive medical care has been completed. Once you settle with the insurer on a full and final basis, the insurer will no longer pay for any part of your case – which means that they will no longer be responsible for any of the medical bills arising from your injury. To have the insurance carrier pay for surgeries, physical therapy, and specialty doctors, wait to settle until after you have already received this kind of expensive medical care. Don’t assume that your private insurance carrier will pay for your workers’ compensation related bills after your case settles – they don’t have to. Remember that the insurance carrier cannot force you to settle; it is your decision. Whether or not to settle, when to settle, and for how much are all important considerations, so before you discuss settlement with the insurance carrier please contact us.
Please bring everything relevant to your case, including medical reports and bills, accident reports, and any correspondence you may have received from the insurance carrier, your employer, or the Virginia Workers’ Compensation Commission.
Our fees are roughly the same as any other workers’ compensation attorney in the state of Virginia. The Virginia Workers’ Compensation Commission determines how much claimant’s attorneys can charge, which means that across the state, all claimant’s attorneys should cost about the same. You should expect a contingency fee, which means that you don’t pay unless your attorney obtains benefits for you. This allows essentially everybody to be able to afford an attorney, since you don’t pay for the consultation, and you don’t pay unless your attorney can get you medical, wage replacement or permanent impairment benefits, or a settlement. The Virginia Workers’ Compensation Commission is currently awarding up to a twenty percent attorneys’ fee.