Things Have Changed Since Your Work Comp Claim was Accepted … Now What?

So you were hurt on the job, filed a claim for workers’ comp benefits, went to hearing, and were approved for benefits. Now your condition has gotten worse.But your case is over …. or is it?

Your condition may change after your workers’ compensation claim is approved. Maybe you returned to a light duty job, but your doctor has now taken you back out of work so you have additional periods of disability. Or maybe additional medical treatment, such as surgery or steroid injections, is being prescribed. When you have a change in your work status or recommended medical treatment, you can file a change in condition application with the Virginia Workers’ Compensation Commission to get your benefits approved.

When you file a change in condition application seeking reinstatement of disability benefits or additional medical treatment, you must show not only a change in your condition but also that the change is due to your initial work injury or occupational disease. You must answer yes to at least one of the following questions:

  • Has there been a change in your ability to work? In other words, has your treating physician given you new restrictions?
  • If there has been a change in your ability to work, is the change due to a condition connected to your industrial accident?
  • Has your treating physician recommended a new type of treatment such as pain management or a surgical operation? If so, is the medical treatment related to your initial injury?
  • Have you cured your refusal of light duty work, medical treatment, or attendance at an employer-requested medical examination?

If you answer yes to one of questions, and have proof to back you up, then you have a good chance of getting your disability benefits reinstated or the medical treatment approved under the Virginia Workers’ Compensation Act. You have the burden of proving your change in condition is related to your work injury, so you must have evidence to back up your claim.

Are There Specific Rules that Apply to Change in Condition Claims?

Yes. We recommend that you contact an experienced workers’ compensation attorney  in Richmond, Newport News, or Virginia Beach to make sure you comply with the Commission’s Rules on change in condition claims and get the benefits you deserve.

There are strict rules and deadlines governing change in condition applications. For example:

  • You must file your change in condition claim with the Commission in writing and state the exact change in condition upon which you are relying. A general change in condition application may be insufficient to get additional benefits.
  • You must file your change in condition claim seeking wage loss benefits (temporary total disability  or  temporary partial disability) within 24 months from the last day for which compensation was paid pursuant to an Award or within 36 months if you are seeking  permanent partial disability benefits. Though there are some exceptions, if you wait too long to file your change in condition application may be denied on technical grounds.
  • Under Rule 1.2 of the Rules of the Virginia Workers’ Compensation Commission, your right to compensation payments under a change in condition application extends back only 90 days before the date on which you filed your change in condition claim. This is called the “90-Day Rule.” For example, let’s say your doctor takes you out of work and you wait 200 days to file the application to reopen your claim. You will not be entitled to wage loss benefits for the first 110 days you were out of work, even if you prove your wage loss during that period was due to your initial work injury.
  • You must build, develop, and file evidence that supports your change in condition claim within 90 days of the date you filed the application to reopen your claim. If you don’t the defendants may file a motion to dismiss your claim.

Insurance companies don’t like it when injured employees are able to continue receiving benefits. They will look for any way possible to dispute and deny your change in condition claim. Proving your ongoing entitlement to wage loss benefits and medical treatment is difficult enough, don’t try to navigate the technical rules of workers’ comp alone also. Get an experienced work injury lawyer on your side.

What Happens After I File a Change in Condition Claim?

If you file supportive medical evidence with your change in condition claim, the Commission will refer your claim to the Alternative Dispute Resolution (ADR) Department. This is a major difference between initial Virginia workers compensation claims and change in condition applications – the Commission will not issue a 20-Day Order to the insurance company.

The ADR Department is responsible for scheduling and overseeing mediation in Virginia workers’ comp cases. After receiving the referral of the change in condition application, the ADR Department will schedule an informal telephone conference between the parties to determine which issues may be resolved without a hearing. The parties may also request a formal issue mediation conference either in person or by telephone to try to resolve the change in condition claim.

Mediation is voluntary. If the parties tell the ADR Department they do not want to mediate the case, or if the defendants file a Response to the Change in Condition Claim form, the unresolved issues will be referred to the hearing docket.

I’ve Already Gone to a Workers’ Comp Hearing and Won. Why Do I Have to Start Over to Prove My Change in Condition Claim?

We get this question often from injured employees who have already proven that they suffered an injury by accident arising out of and in the course of their employment. They want to know why they have to go to court again to get additional benefits related to their injury. It seems unfair that the insurance company doesn’t have to reinstate benefits right away, especially when the evidence supports the injured employee’s claim.

We agree. But unfortunately it’s not up to us. The law requires the injured employee to present evidence showing his entitlement to additional workers’ compensation benefits. And unless the commission enters an order approving the change in condition application, the employer and its insurance company can sit back and do nothing. They do not even have to present evidence against you. This is why it’s common for one workers’ compensation case to have multiple hearings over a period of years.

Why would the employer and its insurance company delay payment when they know you’re likely to win on your change in condition claim? Two reasons: 1) because they can and 2) because they know you’re more likely to accept a lowball settlement offer if you’ve gone months without payment or benefits.

The Commission Stopped My Benefits after the Employer Filed an Application for Hearing. Can I File a New Change in Condition Claim?

Yes.

When an employer files an application to suspend benefits, it has to prove that your benefits should be stopped. That is done when the Commission rules in the employer’s favor or if you voluntarily sign forms agreeing with the employer’s position.

You do not give up all your rights to workers’ comp benefits if you sign the forms or lose at the hearing on the employer’s application to suspend benefits. You can still file a change in condition application to reinstate your wage loss compensation or medical benefits. The ability to file multiple change in condition applications is why many Virginia workers’ compensation claims  are litigated over a period of years, not months. And this prolonged litigation is why many injured employees try to negotiate workers compensation settlements.

Find Out More about Change in Condition Claims in Virginia Workers’ Comp

We have helped hundreds of injured workers get their change in condition applications approved and fight back against employer applications. And we want to help you. Call 1-804-251-1620, 1-757-810-5614, or complete the online form to your right for a free, no obligation case evaluation. We’ll even send you a copy of our Virginia Workers’ Compensation Guide so that you know what to expect during the course of your claim.