Answers to 100+ Frequently Asked Questions About Workers Compensation in Virginia – The Employee’s Guide to Workers Comp

 

The days and weeks following a workplace accident can be stressful and terrifying. There is lots of uncertainty. Uncertainty over your health. Uncertainty over your finances. And uncertainty over what comes next.

 

If you’ve been hurt on the job and are missing time from work because of your disability, you may have lots of questions. You may be wondering how to get the compensation and medical care you need because of your work-related injuries.

 

You have come to the right place. This article is a guide to your rights and obligations under the Virginia Workers Compensation Act. Workers compensation attorney Corey Pollard is here to answer all of your questions about workers compensation in Virginia.

 

We encourage you to read through our Frequently Asked Questions section below. If you don’t see your question answered, contact us with any additional questions or comments you may have.

 

Please remember that though this Virginia workers compensation guide tries to provide injured employees with an overview of the Act, the facts and circumstances of each workplace accident will affect the outcome of your case. With preparation, aggressive action, and skilled legal representation from a top workers compensation attorney in Virginia, you can overcome the complex process and the insurance company’s team of attorneys, claims adjusters, and case managers.

 

Virginia Workers Compensation Frequently Asked Questions (FAQs)

 

Corey Pollard and our firm have helped hundreds of injured workers in Virginia to recover workers compensation.

 

As a result, we’ve heard hundreds of questions about workers compensation.

 

Below is a list of common questions that we hear from our clients, as well as concise answers to those questions. Though these answers will help you learn more about your legal rights, we recommend that you call us to talk with an experienced attorney about the facts of your case.

 

General Questions about Virginia Workers Compensation

 

What is insurance?

 

Insurance is a contract between you (the policyholder) and an insurance company. The contract provides that the insurance company will protect you by paying some portion of you or your family’s loss if you meet conditions within the insurance contract.

 

Insurance affects everyone. And there are different types of insurance policies that you – or your employer -can purchase. Types of insurance policies include:

 

  • Business commercial insurance
  • Car insurance
  • General liability insurance
  • Health insurance
  • Homeowners insurance
  • Life insurance
  • Long term disability insurance
  • Renters insurance
  • Social Security disability insurance
  • Umbrella insurance
  • Workers compensation insurance

 

What is workers compensation?

 

Workers’ compensation is a state system that provides benefits to employees who are hurt on the job or who contract an occupational illness related to their employment. Workers compensation laws are designed to protect employees financially and to help them return to gainful employment as soon as possible after their injury.

 

This legal protection comes at a cost. Injured workers give up their right to sue their employer in civil court through a personal injury lawsuit. As a result, employees are unable to receive compensation for their pain and suffering.

 

For more background information, read our article on the History of Workers Compensation.

 

How does negligence apply to a workers compensation claim?

 

A person or company is negligent if it breaches the duty of care it owes you.

 

Negligence doesn’t matter in Virginia workers compensation. You do not have to prove that your employer’s negligence caused your accident and injuries.

 

If a third-party’s negligence caused your work injuries, however, you may have a viable personal injury lawsuit against the third party. You can bring the civil action for personal injuries against the third person at the same time you pursue workers compensation benefits.

 

What is the Virginia Workers Compensation Commission?

 

The Virginia Workers Compensation Commission is the state agency that administers and interprets the Workers Compensation Act and the Virginia Birth-Related Neurological Injury Act. The Commission resolves disputed workers compensation claims between employees and employers as well as disputes between medical providers and insurance companies.

 

The Commission is an administrative court system. It must remain impartial and cannot provide legal advice to employers or employees.

 

Our article, Virginia Workers Compensation Commission – Overview, provides additional information about the individuals and departments that make up the Commission.

 

Which employees are covered by the Virginia Workers Compensation Act?

 

Most employees who are hired or injured in Virginia are covered by the Act. In fact, the Commission estimates that more than 97 percent of Virginia employees are covered by the Act.

 

Virginia will have jurisdiction over your workers comp claim if you’re injured out of state but your employment contract states that all claims are governed by the laws of the Commonwealth of Virginia. We’ve represented many airline employees, flight attendants, and athletes and entertainers who were injured elsewhere but had to file a claim in Virginia because of their contract.

 

We represent injured workers in every industry in Virginia.

 

What injuries and disease are covered under the Virginia Workers Compensation Act?

 

The Workers Compensation Act provides benefits to employees who suffer an injury by accident arising out of and in the course of employment. This means you may be eligible for benefits if your work accident caused your injury or aggravated a pre-existing condition.

 

Common types of work injures that we help employees receive benefits for include:

 

  • Amputation and loss of limb
  • Back injuries
  • Bone fractures
  • Brain injuries
  • Burns
  • Carpal Tunnel Syndrome
  • Disfigurement
  • Eye injuries
  • Foot injuries
  • Head injuries
  • Hearing loss
  • Heart attacks
  • Heart disease
  • Hypertension
  • Ligament injuries
  • Lung disease
  • MRSA infections
  • Nerve injuries
  • Paralysis
  • Neck injuries
  • Scars
  • Spine injuries
  • Stroke
  • Tendon injuries
  • And many more

 

We represent all injured workers in Virginia regardless of their injury.

 

You can also receive benefits if you prove that your occupational disease was caused by your employment. Depending on the type of occupational disease, you may have a higher burden of proof.

 

What benefits are provided through Virginia workers compensation?

 

The Act provides many types of benefits. These benefits include:

 

  • Payment of medical care that is reasonable, necessary, authorized, and related to your injury.

 

  • Temporary total disability (TTD) benefits while you are off work because of your injury.

 

  • Temporary partial disability (TPD) benefits while you are recovering from your injury but working light duty and making less than you were before the injury.

 

  • Vocational rehabilitation to help you find a light duty job.

 

  • Vocational retraining to help you learn new skills to return to the work force.

 

  • Reimbursement for mileage costs to see your physician, pick up prescription medication, attend physical therapy, or meet with the vocational rehabilitation counselor.

 

  • Permanent partial disability (PPD) benefits for any permanent disability, scarring, or disfigurement you suffer because of the work accident.

 

  • Permanent total disability (PTD) benefits if you are unable to return to work permanently.

 

  • Death benefits for surviving family members who were dependent on the deceased worker.

 

  • Payment of funeral expenses.

 

Are my workers compensation benefits taxable?

 

No. Your workers compensation wage loss benefits are not taxable under state or federal law.

 

Who pays for workers compensation benefits?

 

Your employer is responsible for paying your workers compensation benefits. Most employers buy workers compensation insurance through private insurance carriers. The insurance carrier then pays your benefits on the employer’s behalf. Other employers self-insure, which means they pay their own claims.

 

Neither your employer nor the insurance carrier can charge you for the premiums.

 

What obligations do employers have under the Act?

 

Employers are bound by the provisions of the Virginia Workers’ Compensation Act. Employers must:

 

  • Purchase workers compensation insurance or self-insure if they meet the definition of “employer” under the Act;
  • Post a notice explaining labor and employment laws in the workplace; and,
  • Report accidents to the Commission.

 

What should an employee do if his or her employer does not carry workers compensation insurance coverage when they’re supposed to?

 

You should contact the Workers Compensation Commission if your employer does not carry workers comp insurance. Provide your employer’s name, address, and the date of your accident.

 

You may still be entitled to benefits under the Act. The Uninsured Employer’s Fund (UEF) will pay the benefits, then try to recoup the amount paid to you from the employer directly through negotiation or in civil court.

 

Or you can pursue damages against your employer in civil court. Workers compensation is not your exclusive remedy if the employer failed to purchase workers comp insurance.

 

Will the employer be penalized for failing to purchase workers compensation insurance?

 

Yes. The Workers Compensation Commission can impose sanctions, civil penalties, and fines against the employer.

 

Can I sue for injuries on a construction site?

 

You cannot sue your employer for injuries sustained on a construction site. But you can sue the property owners, general contractors, and subcontractors responsible for your construction accident injuries.

 

Common construction accidents that lead to both workers comp claims and personal injury lawsuits include:

 

  • Crane accidents
  • Electrocution
  • Forklift accidents
  • Motor vehicle accidents
  • Scaffold accidents

 

What are common workers compensation mistakes made by injured employees?

 

Unfortunately too many injured Virginia workers find out months after their workplace accident that they are not entitled to all the available workers compensation benefits because they made a mistake early in the process. Do not let your claim get denied because you made a mistake, did not seek legal counsel, or failed to act because you did not want to upset your boss.

 

Here is a list of mistakes that you need avoid after your workplace accident:

 

  • Failing to report the work accident and all your injuries right away (do not leave any injuries out).

 

  • Waiting to receive medical treatment.

 

  • Telling the doctor that your workplace injury happened at home because your boss asked you to.

 

  • Making mistakes on your workers compensation claim and other required forms.

 

  • Refusing to follow your treating physician’s advice and being found non-compliant with medical care.

 

  • Going back to your pre-injury work even though your doctor gave you light duty restrictions that prevents you from doing that work.

 

  • Giving a recorded statement.

 

  • Failing to disclose pre-existing conditions or past injuries (it’s not the injury, but the cover up that will get you).

 

  • Believing that the workers compensation insurance company is on your side and interested in helping you get all the benefits you’re entitled to.

 

  • Failing to appeal the workers comp claims adjustor’s denial by filing a claim with the Virginia Workers’ Compensation Commission.

 

  • Failing to speak with a qualified workers compensation attorney.

 

Can I sue my employer for causing my workplace accident?

 

Workers compensation is your exclusive remedy. This means an employee cannot bring a personal injury claim against his or her employer. You may, however file a lawsuit against a third party whose negligence caused your injury. For example if you were injured a car wreck while driving for business related reasons, you can sue the driver who hit you while also pursing a workers comp claim.

 

Questions about Reporting an Industrial Accident or Exposure to Your Employer

 

What should I do after I’m injured at work?

 

Knowing what to do after a workplace injury is important and can help you get the benefits that you deserve. No matter the type of accident or injury, always do the following if you’re hurt at work

 

  • Notify your employer of the accident and all your injuries in writing
  • Seek medical attention
  • Contact a workers comp attorney

 

There are other steps you’ll need to take at a later date. But focus on reporting your accident and getting the medical care you need at first.

 

Who should an employee notify if he or she is hurt on the job?

 

You should inform your employer if you are injured at work. If your employer does not have a designated safety person, notify your supervisor.

 

What are the requirements for giving notice of a workplace accident to the employer?

 

The Act states that you should give notice of the accident in writing. Make sure you include the date and place of the accident, as well as all body parts injured. Do not leave anything out.

 

You can use our Sample Letter Reporting an Injury at Work as a guide.

 

Keep two copies of the notice – one for yourself and one for your attorney.

 

How long do I have to give notice of the accident to my employer?

 

You should give notice right away. But the law provides that you have up to 30 days after the accident to give written notice of the workplace accident to your employer.

 

Do not let your supervisor talk you out of reporting the work-related accident and all your injuries. This may hurt you in the future.

 

The time limits for giving notice of an occupational disease differ because you may not be diagnosed until after you’ve stopped working or some time after the exposure. In these cases the time limit begins when you’re diagnosed and told that your disease is related to your employment.

 

What should the employer do after I give notice of the workplace accident?

 

The employer should take the following steps after receiving notice of your work accident:

 

  • Provide you with a panel of physicians from which to receive treatment for your injuries;
  • Report your accident to its insurance carrier
  • Notify the Commission of your accident

 

Does the employer have to submit any reports to the Commission?

 

Yes. The employer or its insurance carrier must file specific accident reports to the Commission. Failure to do so may lead to civil penalties, fines, or sanctions.

 

Do I have to give a recorded statement to the insurance adjuster?

 

No. You do not have to give a recorded statement to an insurance adjuster after your work accident. If you decide to do so make sure that your attorney is present during the statement.

 

Do employers have to post any legal notices in the workplace?

 

Yes. Employers must post a notice at each place of employment. The notice should be in a heavily trafficked area.

 

What are an injured employee’s options if the employer or its insurance carrier will not pay for medical coverage or provide wage loss benefits?

 

You or your attorney should contact the employer or workers compensation insurance carrier directly.

 

Regardless of the answer you receive, you should file a claim for workers compensation benefits with the Commission. This will trigger the issuance of a 20-Day Order to employer. The employer will have to state whether it has decided to accept or deny the claim, or if it is still investigating the accident.

 

Can an employer fire an employee for reporting a work accident or filing a claim for benefits?

 

No. It is illegal for an employer to discipline, harass, terminate, or discriminate against an employee for reporting an accident, filing a workers compensation claim, or participating in workers comp proceedings as a witness.

 

Even though you have a pending workers compensation claim, you’re not guaranteed employment. Your employer may still discipline or fire you for other reasons, so long as they’re valid and not illegal.

 

Questions about Filing a Claim for Benefits with the Virginia Workers Compensation Commission

 

How do I file a claim with the Commission?

 

The easiest way to file a workers compensation claim is to use the Claim for Benefits form provided on the Commission’s website. If you’ve set up an account, you can file your claim using WebFile, the Commission’s electronic portal. If you haven’t set up an account you should send your claim to the Commission’s headquarters via certified mail return receipt requested.

 

Is there a filing fee for filing my claim with the Commission?

 

No. There is no fee for filing a workers compensation claim in Virginia.

 

What are the time limits for filing a claim with the Commission?

 

You have two years from the date of the accident to file a claim for benefits. Notifying your employer is not good enough.

 

The workers compensation statute of limitations differs for change in condition applications, which are claims for additional benefits after you’ve established that you suffered a compensable injury by accident.

 

What happens after I file a claim?

 

The Commission assigns a jurisdictional claim number (JCN) to your case.

 

If you have filed supportive medical documentation with your claim, then the Commission will issue a 20-Day Order to the employer. The employer must provide its position in your case.

 

If the employer denies your claim, either in part or full, the case is assigned to a deputy commissioner and set for a workers compensation hearing and trial.

 

Do I have to hire an attorney to file a workers comp claim?

 

No. You can represent yourself. But we encourage you to hire an attorney, especially in a disputed case or when trying to negotiate a workers compensation settlement.

 

You are responsible for following the Rules of the Commission and presenting your case if you do not hire an attorney. The Commission is a neutral body and the deputy commissioner assigned to your case will not provide legal advice.

 

Should I hire a workers comp lawyer?

 

Yes.

 

The workers comp process is complicated. An attorney can help you navigate the claim process, develop and build the evidence, and submit the required information within the applicable time limits. A workers comp attorney can also help you appeal a denied claim at any level.

 

You maximize your chances of getting the financial support and medical coverage that you need by hiring a workers compensation attorney.

 

Virginia workers compensation lawyer Corey Pollard offers free consultations to injured and disabled workers to help them determine whether they need an attorney.

 

Contact us if you’ve been hurt on the job.

 

How much can an attorney charge for providing legal services in a workers compensation case?

 

The Commission regulates attorney’s fees in workplace accident claims. As a general rule an attorney will charge:

 

  • 20 percent of compensation recovered in disputed TTD claims
  • 20 percent of the total settlement amount
  • 15 percent of permanent partial disability benefits

 

Read our article, Attorney’s Fees in Workers Compensation in Virginia, for additional information.

 

Do I have to file a claim to receive workers comp benefits?

 

No. But without an Award Order from the Commission – which usually requires filing a claim – your benefits can be suspended at any time. Filing a claim puts pressure on the employer and gives you leverage.

 

What happens if the employer makes voluntary payment of benefits?

 

You do not waive any legal rights by accepting the voluntary payment of benefits from your employer and its insurance company. But neither does the employer. The employer can still dispute your claim and require you to meet your burden of proof at hearing.

 

How can I tell the status of my case with the Commission?

 

You can view what is happening in your case by using the WebFile, the Commission’s electronic portal that contains all documents filed in the case – both by the parties and the Commission itself. You can follow along with your case in real time by viewing WebFile.

 

Questions about Resolving Workers Compensation Disputes in Virginia

 

What should I do if my workers comp claim is denied?

 

Frustration, annoyance, and concern are just some of the feelings you may have if your workers compensation claim is denied by the insurance company. Your claim for benefits may be denied if the insurance company:

 

  • Denies that you suffered an actual change to your body in the accident

 

  • Denies that your injury was caused by a specific risk of the employment or in the course of your employment

 

  • Accuses you of fraud

 

  • Blames your injury on misconduct or the violation of a safety rule

 

  • Blames your injury on a preexisting condition

 

  • Believes you filed a claim after the statute of limitations had expired

 

The good news is that you have options after the insurance company denies your claim. If the insurance company is slow to respond or denies your claim, you should request a hearing with the Workers Compensation Commission. The Commission will assign your case to a judge who will schedule a hearing within three months.

 

Having an experienced workers compensation attorney who can aggressively pursue your case through discovery and effectively present your case at trial will give you the best chance possible of getting approved. If your claim is denied at hearing you can pursue an appeal through the full Commission or the Court of Appeals of Virginia.

 

What does an injured worker have to do to receive an order from the Commission awarding benefits?

 

There are two ways to receive an order awarding workers compensation benefits:

 

First, the Commission will enter an Award Order if the parties submit an executed Award Agreement form or Stipulated Order.

 

Second, the Commission will enter an Award Order if the injured employee proves that he or she sustained an injury by accident arising out of and in the course of the employment. Depending on the benefits sought, you may have to prove other things as well – such as proper notice being given and marketing your residual work capacity.

 

An injured employee has the burden of proving that he or she is entitled to the benefits sought. The employer can remain silent. It does not have to disprove your claim.

 

What are common disputed issues in Virginia workers comp claims?

 

Many disputes can arise in workplace accident claims. Below is a list of common disputed issues. You have the burden of proving each of these items.

 

  • Notice. You must prove that you gave proper notice of your workplace accident within the time allowed or you may forfeit your legal rights. This is why we recommend keeping a copy of the written notice of the accident you provided the employer.

 

  • Jurisdiction. You must prove that the Workers Compensation Commission has jurisdiction over your employer and your case.

 

 

  • Injury by Accident. Repetitive motion injuries are not covered under the Workers Compensation Act. You must prove that there was a sudden, specific event that caused a mechanical or structural change to your body.

 

  • Arising Out of a Risk of the Employment. You must prove a causal connection between your injury and your employment. Injuries caused by activities that the general public is exposed to are usually not covered under the Act.

 

  • In the Course of the Employment. Your injury must have happened while you were on the clock performing an activity that benefits your employer.

 

If you win on these issues then you will likely qualify for at least some benefits. But there may be other issues in dispute. For example, the parties may disagree over whether your disability related to the injury resolved and is now related to your preexisting condition, the correct average weekly wage, whether you adequately marketed your residual work capacity while released to light duty, whether your medical treatment is reasonable and necessary, or whether you violated a known safety rule.

 

How does the Commission resolve disputed issues?

 

A deputy commissioner will conduct a hearing at which the parties will present testimony and documentary evidence. The deputy commissioner will issue a decision based on Virginia law, rules of evidence, and past Commission opinions. A court reporter will be present at hearing and will create a transcript.

 

If an evidentiary hearing is unnecessary, a deputy commissioner may make a decision after receiving written briefs from the parties. This is known as an on the record hearing.

 

It is important that you conduct discovery before the hearing so that you can build your case. This may include issuing interrogatories, requests for production of documents, and requests for admissions. Your attorney will consult with your treating physicians to obtain favorable reports and may take the depositions of key witnesses.

 

The Commission provides alternative dispute resolution in the form of full and final settlement mediation and issue mediation. This may be an appropriate way to try to resolve your workers compensation case.

 

Are Virginia workers compensation hearings open to the public?

 

Yes. Unlike Social Security disability hearings, workers compensation hearings in Virginia are open to the public. You may ask a friend or family member to attend to show support.

 

My bills are piling up. How do I get a quicker hearing date?

 

You may request an expedited hearing before the Commission. But you must have already proven that you suffered a compensable injury by accident for your request to be considered.

 

If your request for an expedited hearing is granted, it may still take 6 weeks before you receive a decision. And either party can appeal that decision.

 

Can I appeal the deputy commissioner’s decision?

 

Yes. The employer and employee can file a request for review of the deputy commissioner’s decision. A panel of three commissioners (called the full Commission) will review the deputy commissioner’s decision, the evidence presented in the case, the trial transcript, and written statements filed by the parties. The Commission will then issue a decision.

 

In some cases the Commission will grant a request for oral hearing.

 

Read our article on Virginia Workers Compensation Appeals for more information on requesting review of the deputy commissioner’s opinion.

 

Does the employer have to pay wage loss benefits or cover medical treatment while the appeal is pending?

 

No. The employer is not required to pay temporary total disability, permanent partial disability, or medical benefits while the appeal is pending.

 

If you win on appeal the employer must pay interest on your award.

 

Can I appeal the full Commission’s decision?

 

Yes both parties in a workers compensation case have an appeal of right to the Court of Appeals of Virginia.

 

The standard of review changes once a case is before the Court of Appeals. It is more difficult to prevail if the full Commission denied your claim.

 

Is there any other way to resolve a workers compensation dispute?

 

Yes. In addition to taking your case to hearing or participating in mediation, you can also negotiate a lump sum workers compensation settlement with the employer and insurer. The Commission requires the parties to file several documents if a settlement is reached. These documents include the Petition, Order, Affidavit, and Claimant’s Informational Letter.

 

What are the consequences of settling my case?

 

Most approved workers compensation settlements will terminate your right to future cash or medical benefits. You may be on your own, so to speak, even if your condition worsens. Hire an experienced attorney to make sure that your settlement takes all possibilities into account.

 

Why have my workers compensation benefits stopped?

 

If you were receiving weekly TTD or TPD benefits and they stopped recently, then the employer may have filed an application to suspend or terminate benefits. Here is an explanation of your options when the employer stops paying benefits.

 

What if the Commission awards benefits, but the employer either won’t pay the benefits or pays them late?

 

You have a couple of options.

 

The first is to file a motion for penalties with the Commission. The Commission can order the employer to pay all benefits owed plus a 20 percent penalty if the payments are more than 14 days late.

 

The second is to get the Award Order certified and to ask the circuit court to issue a writ of fieri fascia to collect the debt. Do not try this without an attorney.

 

Where are workers comp hearings held?

 

The Commission holds workers compensation hearings at many locations across Virginia. Read our article, Virginia Workers Compensation Commission Hearing Locations, for more information on the hearing site nearest you.

 

Am I guaranteed wage loss benefits after my claim is approved and I’m found to have been hurt in a compensable workplace accident?

 

Unfortunately getting approved for benefits is just the start of Virginia workers compensation. You are not guaranteed a specific amount of cash for your workplace injury. At any time your employer’s insurance company may file an application to suspend, modify, or terminate benefits. It may also refuse to cover medical treatment or requests for additional compensation, in which case you will need to file a change in condition claim to protect your legal rights.

 

Workers comp is unlike any other type of lawsuit or litigation. One case can have multiple hearings and claims. Because the situation can change at any moment, it is important to have a workers compensation attorney who can monitor your case and guide you through the complicated procedural rules. An innocent mistake can lead to months without pay. Your attorney can help prevent this.

 

Questions about Medical Benefits under Virginia Workers Compensation

 

What medical benefits are provided under the Workers Compensation Act for work-related injuries and occupational illnesses?

 

The employer must pay for all medical treatment that is reasonable, medically necessary, and related to your injuries. This includes first aid, emergency medical treatment, hospital care, doctor visits, diagnostic testing, specialist visits, surgery, physical therapy, occupational therapy, chiropractic care, acupuncture, home nursing care, pain management, prescription medication, and medical appliances (canes, crutches, shoe lifts, wheelchairs, scooters, etc.)

 

The employer may also be responsible for home modifications if your disability requires the use of a wheelchair ramp, shower rails, or other similar accommodations. There is a cap on the dollar amount the employer has to spend on home modifications.

 

Who pays for my medical treatment?

 

The employer will pay your health care provider directly if the bill is not disputed. You do not have to pay co-payments or deductibles.

 

If the employer disputes its responsibility for a medical bill then you may need to file a claim with the Commission seeking payment.

 

Likewise, you may need to file a claim seeking authorization and payment for specific treatment if the employer refuses to pre-authorize the treatment.

 

Can an injured employee choose his or her doctor?

 

No. An injured employee must choose a doctor from the panel of physicians offered by the employer or its insurance carrier.

 

The panel of physicians must list at least three health care providers in the specialty you need. The health care providers must be located close to you.

 

Consult an attorney if you have concerns over the offered panel of physicians. If you ignore the employer’s panel of doctors and do not have justification for doing so, then the employer is not responsible for your medical care. This can lead to large medical bills.

 

 

You may, however, choose your own doctor if the employer does not offer you a list of doctors to choose from after the work accident.

 

Who is the most important doctor in my workers comp case?

 

Your treating physician’s opinions on your injuries, causation, and work restrictions have a strong influence on whether you win your case, how much you receive in benefits, and the value of your lump sum settlement. If your treating physician is supportive of your claim then the insurance company may request that you submit to an independent medical examination (IME). Under Virginia workers compensation you must attend the IME or you risk forfeiting benefits.

 

Does the employer have to pay for a second opinion?

 

The employer does not have to pay for a second opinion unless your authorized treating physician refers you to another doctor for a second opinion and evaluation.

 

What are an employee’s responsibilities regarding medical care for a work-related injury?

 

An injured employee should do the following after an industrial accident:

 

  • Seek medical attention immediately or as soon as your symptoms affect your activities of daily living or ability to work.

 

  • Tell your doctor how you were hurt (i.e. it was a work accident).

 

  • Give the workers compensation insurance contact information to your doctor so that he or she knows who to bill.

 

  • Tell your employer where you are treating.

 

  • Attend all scheduled appointments.

 

  • Comply with your doctor’s requests and suggested course of medical treatment. If your records indicate non-compliance or suggest that you are not making appropriate efforts to recover and return to work, the employer has a defense to your claim. If you’re already receiving benefits then you may lose them if you refuse to cooperate with medical care.

 

What do I do if a doctor sends me a bill for medical care for a work injury while my case is pending before the Commission?

 

A medical provider cannot try to collect payment from you while your claim is pending before the Workers’ Compensation Commission. Nor can it ask you to pay the difference between the amount it billed the workers compensation insurance company and the amount it received from the workers compensation insurance company for specific treatment. This practice, known as balance billing, is not permitted in Virginia.

 

What if my religious beliefs prevent me from obtaining some types of medical treatment?

 

The Commission may not penalize you for refusing medical care based on your religious beliefs. The question is not whether the recommended treatment is justified, but whether your refusal to submit to the treatment is justified. The Commission will consider it from your viewpoint, but the justification must be reasonable and not the product of an individual quirk.

 

Do I have to allow a nurse case manager into my doctor appointments?

 

The employer and its insurance carrier may hire a nurse case manager to monitor your treatment and to pressure the doctor into releasing you back to work earlier than he or she would otherwise.

 

You cannot prevent the use of a nurse case manager but you can refuse to allow him or her into your actual appointment.

 

Read my article on what nurse case managers do for more information.

 

Can the employer force me to attend an evaluation with a doctor who is not my authorized treating physician?

 

Yes. The employer may ask you to undergo an independent medical examination (IME) with a doctor of its choosing. The employer is responsible for the payment of this evaluation.

 

Usually an IME will lead to a report that is not favorable to your case. IME doctors know who is paying them.

 

There are limits to the number of IMEs the employer can force you to attend and how often you have to go. Consult an attorney if you think the employer is abusing the IME statute.

 

Do I get copies of all my medical reports?

 

The employer must send you a copy of all medical documents it receives related to your case. You may also request and obtain your medical records from the health care provider directly.

 

Who decides how much medical care for my work injury costs?

 

At present the cost of treatment is negotiated between the workers compensation insurance company and the medical provider who rendered the treatment.

 

The Commission will soon transfer to a medical fee schedule. This fee schedule will determine how much a medical provider is owed for the treatment given.

 

Does workers compensation cover medical treatment with specialized doctors?

 

Yes. Workers comp covers medical care with specialists if you are referred to the specialists by your authorized treating physician or another specialist, and you prove that the specialized treatment is reasonable, necessary, and related to your work injuries.

 

What if I need medical care in the future but have settled my case?

 

Medical care is expensive. In many cases it is the most valuable workers comp benefit. If you settle your case you may be responsible for the payment of future medical care related to your work injuries. Make sure that you take this into consideration when the settlement documents are drafted. You may need a Medicare Set Aside or specific medical allocation.

 

Questions about Temporary Total Disability (TTD) Benefits

 

What are temporary total disability (TTD) benefits?

 

TTD is the wage loss benefit you receive if you are (a) temporarily unable to return to any work because of your industrial accident or (b) released to light duty work but unable to find work within your restrictions. You must have a doctor’s note restricting your ability to work.

 

Find out more by reading Temporary Total Disability (TTD) Benefits under Virginia Workers Compensation.

 

How long can I receive TTD benefits?

 

You can receive TTD benefits until you return to work or are released to full duty work.

 

There is, however, a cap on the weeks of TTD benefits you can receive. The employer has no obligation to pay you more than 500 weeks of TTD benefits unless you prove that you’re entitled to compensation for permanent and total incapacity because of the work accident.

 

Is there a waiting period for TTD benefits?

 

Yes. The employer does not owed you TTD for the first seven lost workdays unless you miss 21 or more days due to the injury.

 

How is the amount of the TTD benefit determined?

 

Your TTD benefit is equal to two-thirds of your pre-injury average weekly wage, subject to maximum and minimum limits set by the Commission each year. This is why you want the highest average weekly wage possible.

 

When Will I Get Paid Wage Loss Benefits?

 

After you file your claim for benefits the insurance company has 20 days to respond.

 

If the insurance company denies your claim then you may go months without receiving benefits. You will have to prove that you’re entitled to benefits through mediation or a workers compensation trial.

 

If the insurance company accepts your claim then you should receive your first check within 14 to 21 days of reporting the injury to your employer. The Virginia Workers’ Compensation Act has a 7-day waiting period. This means you’re not entitled to wage loss benefits until you miss at least 7 days from work because of the injury

 

What if my TTD payments are late?

 

If an employer stops paying TTD due pursuant to an Award Order without filing an application for hearing to suspend benefits, then you may ask the Commission to assess penalties and attorney’s fees.

 

Can the Commonwealth of Virginia garnish my workers compensation check for child support?

 

Yes. Your workers comp payments can be garnished if a Child Support Enforcement Order is entered.

 

Can I receive unemployment benefits and workers compensation wage loss benefits at the same time?

 

Yes. You may receive unemployment benefits while receiving TTD benefits if you’re capable of working and are prepared to work. Your unemployment benefit may be reduced based on the amount of your TTD benefits.

 

What happens if I’m released to light duty work by my physician?

 

If your treating physician release you to return to work with restrictions and your employer can accommodate the light duty restrictions, you are required to accept the light duty job or you may forfeit benefits. Make sure that you receive a written description of the light duty job so that you can show it to your physician and he or she can determine if it is an appropriate job given your limitations.

 

Take a copy of your written work restrictions to the light duty job. If your boss asks you to do something outside your work restrictions, refuse and call your attorney.

 

If you are released to light duty work but are not yet under an award order from the Workers Compensation Commission, discuss the Commission’s guidelines on looking for light duty work with your attorney and make sure that you follow them to protect your legal rights to wage replacement benefits. You may have to conduct a good faith job search to get on an award for wage loss benefits.

 

Questions about Temporary Partial Disability (TPD) Benefits

 

What are temporary partial disability (TPD) benefits?

 

TPD is a wage loss benefit paid when you have returned to light duty work but are earning less than you did before the work injury. The employer pays you TPD benefits until you have returned to your regular job or have been released to full duty work.

 

The 500-week cap on benefits that applies to temporary total disability payments also applies to temporary partial disability payments.

 

How is my TPD benefit calculated?

 

Your TPD benefit is two-thirds of the difference between your pre-injury average weekly wage and the amount you earn in your light duty job. This is why it’s important to determine the correct average weekly wage, even if it’s above the maximum compensation rate.

 

Who can receive TPD benefits?

 

An employee is eligible for TPD benefits if he or she has 1) proven an injury by accident arising out of and in the course of the employment, 2) returned to light duty work, and 3) continues to suffer from wage loss.

 

Questions about Permanent Partial Disability (PPD) Benefits

 

What is permanent partial disability (PPD)?

 

An injured employee is eligible for PPD benefits in Virginia if he or she has:

 

  • Complete or partial loss of a part of the body (i.e. loss of the hand, finger, foot, ankle, toe, etc.); or
  • Complete or partial loss of use of a part of the body; or
  • Paralysis; or
  • Disfigurement; or
  • Scarring

 

Loss of use refers to a loss in the ability to use the injured body part for activities of daily living or work-related tasks.

 

When will the Commission determine whether I have permanent partial disability because of my work accident?

 

The Commission will not determine whether you have PPD until you have reached maximum medical improvement.

 

How is my level of permanent disability determined?

 

The Commission will determine your level of permanent impairment by evaluating the following:

 

  • A permanent impairment report prepared and signed by a medical doctor using the American Medical Association’s Guides to the Evaluation of Permanent Impairment.
  • Your age at the time you were injured and underwent surgery.
  • Your occupation at the time of your injury.
  • Evidence of permanent disability contained in your treating medical records.

 

Though the Commission may evaluate all factors, the most important by far is the permanent impairment report prepared by a physician.

 

How is the value of a permanent partial disability award determined?

 

The value of your PPD award is based on your pre-injury average weekly wage, the value of the body part you injured (the number of weeks assigned to the body part in the Virginia Workers Compensation Act), and the percentage impairment.

 

If a body part is amputated then you have 100 percent loss of use of that body part.

 

What is a schedule loss of use award?

 

The schedule loss of use award is the award that determines how much money you will receive based on the loss of use, scarring, or disfigurement you have to the injured body part.

 

Will the Commission award compensation for pain and suffering related to my work injury?

 

No. You cannot receive monetary damages for pain and suffering for your work-related injury.

 

If your pain affects your ability to use the injured body part, then a physician may consider that pain in determining the extent of your permanent impairment.

 

Read my article No Pain and Suffering under Virginia Workers Compensation for more information.

 

What if my condition worsens after receiving permanent partial disability benefits?

 

It’s possible for your condition to worsen after receiving PPD benefits. For example, you may require an additional surgery even though the doctor said you had reached MMI.

 

You may ask the Commission to amend your award so long as you file a change in condition application within the applicable statute of limitations.

 

Questions about Permanent and Total Disability (PTD) Benefits in Virginia

 

What is permanent total disability (PTD)?

 

The Virginia Workers Compensation Act provides for compensation for permanent and total incapacity if you have:

 

  • Permanent and complete loss of use of both hands, both arms, both legs, both feet, both eyes, or any two such body parts in combination because of the same industrial accident; or

 

  • Injury resulting from total paralysis; or

 

 

Usually you need a 50 percent impairment rating to both body parts and testimony from a vocational expert that you will have difficulty finding competitive employment to win your claim for PTD benefits.

 

What is the PTD benefit?

 

The PTD benefit is the same as your TTD benefit, except that you can receive it for the rest of your life.

 

Can I receive both PTD and Social Security benefits?

 

Yes. You can receive PTD benefits while receiving Social Security retirement or Social Security disability benefits. Depending on the amount of your workers comp benefits and your average earnings over your lifetime your Social Security benefits may be reduced or offset.

 

Questions about Vocational Rehabilitation

 

What is vocational rehabilitation?

 

Vocational rehabilitation is a term that includes job coaching, job search programs, technical education, and vocational retraining. Usually it is conducted by a vocational rehabilitation counselor hired by the employer or its insurance company.

 

What is a vocational expert or a vocational interview?

 

A vocational expert, also referred to as a vocational counselor or a vocational rehabilitation counselor, is a person hired by your employer’s insurance company to find you a job within your light duty restrictions or to help you train to gain skills to find a job within your light duty restrictions. Usually you will receive a letter and then a phone call from the vocational counselor to set up a time to meet you.

 

Call, text, or email a workers compensation attorney immediately if you receive a call from a vocational expert. You have the right to have an attorney present – and absolutely should. The workers’ comp vocational rehabilitation process is full of traps for injured employees. If you make a mistake your benefits may be suspended.

 

After the initial vocational interview, the vocational counselor will search the local job market to try to find positions that he or she thinks you can do based on your work restrictions, work history, and education. Usually they will send a report to the insurance adjuster with this information, along with your expected earnings in the light duty positions. If the insurance carrier directs them to, the vocational counselor may try to schedule you for interviews. Failure to attend appointments with the vocational counselor or job interview may jeopardize your wage loss benefits.

 

In our experience many vocational counselors are good. But some will try to push you to interview for or accept jobs that do not fall within your limitations caused by the work injury. This is why you need a workers comp attorney to help you monitor the process and to take the appropriate legal action with the Commission when the vocational counselor is not following the Commission’s Vocational Rehabilitation Guidelines.

 

Is vocational rehabilitation a good idea for an injured employee?

 

In theory vocational rehabilitation is a good thing for injured workers. It can help you find a light duty job or provide you with skills you need to make a career change.

 

In practice, however, vocational rehabilitation can be a trap for injured workers. There is no guarantee that vocational rehabilitation will find you a job that you want and the employer can cut off benefits if you fail to cooperate with the vocational rehabilitation counselor. This is often an area of dispute.

 

When can an employee request vocational rehabilitation?

 

You can request specific vocational retraining if you cannot return to your pre-injury job and a reasonable amount of time has passed for the employer to try to find you suitable light duty employment.

 

Questions about Death/Survivors’ Benefits

 

Who is eligible for a survivors’ benefit?

 

A deceased worker’s spouse and children under the age of 18 are entitled to the death benefit, which is equal to the amount of the temporary total disability payment. If the deceased worker had no spouse or dependent children, then his or her parents may receive survivors’ benefits through Virginia workers compensation if they were totally dependent on the deceased worker.

 

Is there a burial benefit?

 

Yes. The deceased worker’s family is entitled to payment for funeral and burial expenses.

 

Does the survivors’ benefit continue for life?

 

No. There is a cap on how long a person may receive survivors’ benefits.

 

We hope you found our Virginia Workers Compensation Guide and Answers to Frequently Asked Questions about Workers Comp Helpful. Contact Us if You Need Help Protecting Your Legal Rights after a Workplace Accident.