Workers Compensation Lawyer
Know Your Rights: The Workplace Accident Lawyer’s Guide to Workers Comp in Virginia
Workers’ compensation cases are complicated. At a minimum, each case involves three different parties with different goals – the injured employee, the employer, and the workers’ compensation insurance carrier.
As the injured worker, you want to receive all the benefits and payments you’re entitled to so that you can provide for your family and recover as quickly as possible.
Your employer wants you to return to work quickly, so that it can get back to business as usual and so that its workers’ compensation insurance premiums do not increase.
And the insurance company wants to avoid paying you anything at all for your work accident and injuries.
In addition, there are doctors, surgeons, nurses, therapists, nurse case managers, vocational counselors, accident reconstruction experts, witnesses, private investigators, and consulting physicians who will play a role in your workers’ comp claim. Not all of these individuals will have your best interests at hearing.
In the middle is the Virginia Workers’ Compensation Commission, reviewing and adjudicating each claim when the parties are unable to reach an amicable resolution.
This website is for injured workers in Virginia and their families. Our goal is to level the playing field. Workers compensation lawyer Corey Pollard used to represent some of the nation’s largest self-insured employers and insurance companies. He has seen the games they play with the lives of injured workers and their families. Armed with plenty of cash and teams of adjusters and attorneys, insurers have an unfair advantage under the workers comp system.
This website is your way to fight back against injustice and greed.
Our articles inform readers, including injured employees and their family members, about how the Virginia Workers Compensation process works from start to finish. This includes what to expect when you get hurt, what happens throughout the workers’ comp claims process, common mistakes you need to avoid, and what to do and how to react in specific situations (for example, receiving a panel of physicians, answering interrogatories, being deposed by defense counsel, attending the independent medical examination (IME), presenting your case at hearing, reaching maximum medical improvement, and negotiating a full and final settlement).
Armed with this knowledge, you’ll be able to isolate the strategies that insurance companies use to minimize or defeat claims – and ensure that you get every penny and medical treatment you’re owed.
Below is a list of common workers compensation 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 workplace accident attorney about the facts of your case.
We encourage you to read through our Workers Compensation Frequently Asked Questions and Answers. Then call work injury lawyer Corey Pollard to get started with your case.
Virginia Workers Compensation Frequently Asked Questions and Answers (FAQs)
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 lawyer in Virginia, you can overcome the complex process and the insurance company’s team of attorneys, claims adjusters, and case managers.
Workers Comp Overview Questions
In 1919 the Virginia General Assembly enacted a workers’ compensation law, making Virginia the 37th state to do so.
Workers’ compensation is employer-funded insurance that provides wage replacement, cash payments for permanent impairment, and medical benefits to employees who are hurt or become ill in the course of employment. In exchange for these benefits, employees are required to relinquish their right to sue their employer for the tort of negligence in civil court.
Usually benefits are paid regardless of fault. Negligence doesn’t matter in workers’ comp. You need not prove that the employer’s negligence, error, or omission caused your work accident and injuries.
The Virginia Workers’ Compensation Commission is the executive agency that administers workers’ compensation claims and adjudicates disputes between employers, insurance companies, and employees. The Commission is an administrative court system for workplace injury claims.
The Commission is impartial. Staff are allowed to explain procedures and basic regulations to the public and injured employees, but cannot provide legal advice or act as your advocate.
3. Is workers’ compensation insurance coverage required in Virginia?
Virginia law requires employers operating in the state to carry workers’ compensation coverage for their employees, with some limited exceptions. Employers with three or more part-time or full-time employees in service must carry workers’ compensation coverage for all employees.
4. Am I covered under workers’ compensation?
Almost every VA employee has coverage under the Workers’ Compensation Act. This includes all full-time, part-time, seasonal, and temporary employees, as well as apprentices and trainees.
No matter its trade or line of work, a business is required to have workers’ comp insurance if it has three or more covered employees. Workers in certain industries may be covered by workers compensation laws specific to that industry. For example, railroad workers are covered by the Federal Employers’ Liability Act (FELA) and shipyard workers are covered under the Longshore and Harbor Workers Compensation Act (LHWCA).
There are some exceptions. Volunteers, casual employees, domestic servants, independent contractors may not be considered employees under the Workers’ Compensation Act. But your official classification is a legal question, not something that is determined by your employer or what it calls you. You may have legal options after your injury at work.
5. What qualifies as a workman’s comp injury?
There are three requirements to receive workers’ compensation in Virginia: (1) you must have suffered an obvious sudden mechanical or structural change in your body from a specific event; (2) the injury must have arisen out of a specific risk of your employment; and (3) the injury must have happened in the course of your employment.
Contact one of the top workers compensation lawyers in Virginia if the insurance carrier argues that you are not entitled to benefits because of a preexisting injury or alleges that your injury was based on cumulative trauma. Repetitive motion injuries are not covered under Virginia workers comp.
Common types of work injures that our workplace accident attorney helps employees receive benefits for include:
- Amputation and loss of limb
- Back injuries
- Bone fractures
- Brain injuries
- Carpal Tunnel Syndrome
- Eye injuries
- Foot injuries
- Head injuries
- Hearing loss
- Heart attacks
- Heart disease
- Ligament injuries
- Lung disease
- MRSA infections
- Nerve injuries
- Neck injuries
- Spine injuries
- Tendon injuries
- And many more
7. How common are job injuries and deaths?
Despite the U.S. Department of Labor and the Occupational Safety and Health Administration’s (OSHA’s) best efforts to create a safe workplace for everyone, American employees continue to suffer catastrophic personal injuries at work. Some of these workplace accidents result in death.
The U.S. Department of Labor’s Bureau of Labor Statistics reported there were close to 3 million nonfatal workplace injuries and illnesses reported by private industry employers in 2016. This means there were roughly 3 workplace injuries or illnesses per 100 full time employees.
In Virginia there were more than 62,000 reported workplace injuries last year. These injuries ranged from minor ligament sprains to back injuries to aggravation of pre-existing arthritis and other conditions to fractures and traumatic brain injuries to amputation injuries, vision loss, and even fatalities.
There were 106 fatal occupational injuries in Virginia in 2015:
- 36 workers died in transportation incidents, such as car crashes or tractor-trailer accidents
- 20 workers died from injuries sustained when the came in contact with or were crushed by objects and equipment
- 15 workers died due to exposure to harmful substances or environments
- 13 workers died due to violence and other injuries caused by persons or animals
The Workers’ Compensation Act provides for the possibility of many types of benefits, including:
- Payment of medical care that is reasonable, necessary, authorized, and related to your injury. This includes doctor appointments, hospitalizations, surgery, therapy, assistive devices, and medication.
- 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 transition to a new career if you’re unable to return to your pre-injury job.
- 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.
9. Are workers’ compensation benefits considered taxable income?
No. Virginia workers’ compensation benefits are not taxable under state or federal law. You do not need to report your wage loss benefits or settlement as taxable income.
10. Who pays for workers’ compensation benefits?
Your employer is responsible for paying the cost of workers’ compensation benefits. Most employers, especially smaller ones, purchase workers’ comp insurance and the insurance company pays the benefits on the employer’s behalf.
Neither your employer nor its insurance carrier can charge you for any part of the premium or benefit.
11. What does workers’ compensation law require of employers?
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.
Employers are prohibited from:
- Charing the employee for any portion of the workers’ compensation insurance premium or payments made in the form of benefits; and
- Terminating, disciplining, or in any way discriminating against an employee exercising his or her rights under the Workers’ Comp Act.
12. 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. You can sue your employer for your work injuries in this situation.
13. 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.
Employers in Virginia who fail to provide insurance for their employees face a civil penalty of up to $250 per day for each day of noncompliance, subject to a maximum penalty of $50,000 total.
Questions about Reporting a Workplace Injury or Occupational Exposure
1. Who should I notify if I’m hurt at work?
You should tell your employer if you are injured on the job. If your employer has not designated a safety manager, report your accident to your supervisor and Human Resources.
2. Is there a specific requirement for notice of an accident to an employer?
The Workers’ Compensation Act states that notice of the accident should be given in writing.
You can use our sample letter reporting a work injury as a template.
We recommend that you notify the employer as soon as possible, but no later than 30 days after the work accident.
Any delay in the notice may result in delay in the payment of wage loss benefits and coverage of medical expenses.
If you wait more than 30 days to report your accident, you may be barred from receiving any type of benefits if the employer proves prejudice.
4. 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 first aid and emergency medical care
- 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
- Begin the payment of TTD benefits if you miss more than seven days of work because of the injury
5. 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
6. Does the employer have to provide me with a copy of the reports that it files with the Commission?
Your employer and its insurance carrier will submit accident reports and other required forms electronically. If you file a claim with the Commission and ask for electronic access to WebFile, you will be able to view these options.
7. Do I have to give a recorded statement to the insurance adjuster?
A claims adjuster from your employer’s workers’ compensation insurance carrier may call you within a few days of the accident and ask to interview you. Do not give a recorded statement without having a workers compensation lawyer present. And you should never sign paperwork from the insurance company without having a work accident attorney review it first.
8. 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 work accident lawyer should contact the employer or workers compensation insurance carrier directly.
Regardless of the answer you receive, you should file a workers compensation claim 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.
9. 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.
10. Can the employer make me take a drug test if I’m hurt at work?
Yes. Both federal and state law allows employers to test employees for drugs during accident investigations. Because your employer may be found liable for your work-related injuries caused by your accident, the law allows them to test you for drugs to determine if your accident was caused by prohibited conduct.
- You did not give timely notice of the workplace accident or failed to report all the injuries to your employer.
Your claim falls under the Longshore and Harbor Workers’ Compensation Act or the Federal Employers’ Liability Act, not the Workers’ Compensation Act.
You were an independent contractor. This is a common dispute in construction accident claims.
You failed to identify a specific accident when giving notice or seeking medical treatment. Repetitive motion injuries are not covered under Virginia workers comp.
There was no connection between the cause of your injury and your employment. Injuries due to acts of bending, walking, and standing are not covered.
You were injured while off the clock or going to or from your job.
You failed to seek timely medical care for your work injuries.
You violated a regularly enforced safety rule, which caused you to get hurt at work.
You did not file a claim before the statute of limitations expired.
You have a preexisting injury. This is a common defense, though employers and insurers are often found responsible for the aggravation or exacerbation of a pre-existing condition such as arthritis.
Remember – You don’t have to take the insurer’s word for it. If your claim is denied, contact Virginia workers compensation lawyer Corey Pollard to discuss your next step and likelihood of success at hearing
Filing a Claim at the Workers’ Compensation Commission
1. How do I file a claim with the Workers’ Compensation Commission?
To begin your claim at the Commission, you must file a copy of the Claim for Benefits/Request for Hearing Form. You may file your claim by mail, in which case we recommend filing it certified, return receipt requested, or in person at any Commission office. You may also file a Claim online, using the Commission’s WebFile system, if an electronic file has been created.
2. 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.
3. What happens after I file a workers’ comp 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.
4. 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 a workplace accident attorney. The Commission is a neutral body and the deputy commissioner assigned to your case will not provide legal advice.
5. 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.
6. 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.
Under Virginia law, you have two years from the date of the occupational accident to file a claim for benefits. Notifying your employer is not good enough. And the fact that you have received voluntary payments from your employer or its insurance company after the work injury will not extend the time limit for filing a claim.
The statute of limitations is different for change in condition claims, which are claims for additional benefits after you’ve established that you suffered a compensable injury by accident or an occupational disease covered by law.
The time limits for filing a claim are also different if you or a family member suffer from an illness that was contracted during your employment (such as heart disease while working as police officer or firefighter, Black Lung disease from working in a mine, or mesothelioma due to asbestos exposure in a shipyard or older building). Contact a work-related injury lawyer for advice on the specifics of your claim.
8. 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. You must, therefore, file a claim within the applicable time limits.
We work on a contingency fee basis, which means you pay no fee unless we obtain benefits on your behalf.
The Workers’ Compensation Commission regulates all attorney fees and costs in work injury cases.
Depending on the type of claim and outcome, our fee is 15% to 20% of your total recovery. As a general rule an attorney will charge:
- 20 percent of compensation recovered in disputed temporary total disability claims
- 20 percent of the total settlement amount
- 15 percent of permanent partial disability benefits
10. What if I’m unhappy with my attorney?
You may fire your attorney. He or she can, however, place a lien on your case for work performed.
Contact workplace accident attorney Corey Pollard to evaluate these options and learn more about your rights
No. You are required to choose from a list of doctors provided by your employer and its insurance carrier. The list must include at least three physicians to choose from and all the physicians should be located close to you and in the practice in the specialty you need. You may choose another doctor from the list if your first selection will not treat you promptly or at all.
You may choose your doctor, however, if the employer or its insurance carrier do not offer you a list from which to choose within a reasonable period after your work injury.
Consult a workplace injury attorney if you have concerns over the doctors offered. If you ignore the employer’s physician panel and not have justification for doing so, the employer is not responsible for the payment of your medical expenses.
Learn more about choosing a workers’ compensation doctor.[/vc_toggle]
What Types of Workers' Compensation Cases are There?
Type 1: Medical Only Workers’ Comp Claim
Some work injuries require medical treatment but do not lead to lost time from work – either because the injury is not serious enough to cause you to miss time from work or because your employer accommodates your light duty restrictions while paying your regular wages.
It’s important that you file a Virginia workers’ compensation claim and seek a Medical Only Award within the statute of limitations in this situation. You may require extensive treatment, even surgery, for your work injury in the future. Without the protection of a Medical Only Award, you may have to pay for this treatment out of pocket – something that is impossible for most people.
A Medical Only Award also provides protection should you miss time in the future because of your work injury or treatment related to the work injury. It’s difficult to predict the future, so take action today and pursue your workers’ comp benefits even if you only require conservative medical treatment to start.
Type 2: Medical Treatment with Lost Time from Work for a Closed Period
Many of you will require medical treatment for your work injury and miss some time from work while you recover. In fact, last year the average workers’ comp claim in Virginia led to more than 5 days of lost time. So many of you will have a claim that falls into this category. If you miss more than seven days of work because of your injury, you will receive temporary total disability benefits while you’re out – presuming you prove that you suffered an injury by accident arising out of and in the course of your employment.
With this category of workers’ comp claims, the injured employee eventually recovers and is released to return to full duty work. Sometimes the employee returns to work with the pre-injury employer. But depending on how long the recovery takes and the employee’s relationship with the employer, the pre-injury position may no longer be available and the employer may terminate the employee.
Type 3: Injuries Requiring Medical Treatment and Causing Restrictions that Prevent An Employee from Returning to Pre-Injury Work
With these workers’ comp claims the injured employee requires medical treatment and has lost time from work. When the worker reaches maximum medical improvement (MMI), the treating physician issues permanent restrictions that prevent the worker from returning to his or her pre-injury job. In these cases you may be eligible to receive ongoing wage loss benefits.
The employer and its insurance carrier may use vocational rehabilitation to try to find you a light duty job within your restrictions, which in turn would reduce or eliminate the wage loss benefits you’re owed. In our experience vocational rehabilitation is a trap for injured workers. And you should contact a workmans comp attorney if a vocational rehab counselor ask to meet with you.
You may find light duty work on your own. If so, you may be entitled to temporary partial disability benefits if you’re making less than your pre-injury average weekly wage. And regardless of whether you’re making more or less than your pre-injury average weekly wage, you may also be entitled to permanent partial disability benefits for permanent impairment and loss of use of the injured body part.
Type 4: Injuries Requiring Medical Treatment and Preventing an Employee from Returning to Any Type of Work or Gainful Employment
Some of you may suffer a work injury that requires extensive medical treatment and that prevents you from returning to any type of work. These are referred to as catastrophic injuries.
If you suffer permanent impairment to two or more of the following body parts in the same work accident – hands, feet, arms, legs, or eyes – or if you suffer a traumatic brain injury that leaves you unemployable in competitive employment, then you may receive income benefits for the remainder of your life. The Virginia Workers’ Compensation Commission defines permanent impairment strictly. There is specific vocational and medical evidence you must present to win these types of claims.
How Much of Your Salary Does Workman's Comp Pay?
Virginia has maximum and minimum compensation rates that are adjusted each year. High wage earners, therefore, may receive less than two-thirds of their average wage while recovering from their industrial accident if they are subject to the max comp rate.
It’s important to talk with your work injury attorney before agreeing to an average weekly wage since that number drives the value of many parts of your case.
How Long Can You Receive Workers' Comp?
If you suffered a serious work injury that caused significant permanent impairment to two or more body parts, cognitive deficits, or paralysis, you may be entitled to wage loss benefits for the remainder of your life[/vc_toggle
Can the Employer/Insurer Send a Nurse to My Doctor Appointments?
]Yes. Your employer and its insurance carrier may use a nurse case manager to convince the doctor to release you back to work or to not recommend expensive medical procedures.
Though a nurse case manager may try to talk with your doctor, you are entitled to a private examination and your doctor does not have to discuss your case with the nurse.
If you believe that the nurse case manager is interfering with your medical treatment following an industrial accident, contact a work comp lawyer.
Learn more about Dealing with the Nurse Case Manager in Your Workers Compensation Case
Will the Insurance Company Hire a Private Investigator after My Workplace Injury?
Should I Post on Social Media After I’m Hurt on the Job?”
We recommend staying off social media when you have a pending workers’ compensation case. But if you must post a picture or comment, ask yourself if there is a way that it can be taken out of context by the insurance company or judge. Further, do not post pictures of yourself engaging in activities like driving or hiking if your doctor has said that your workplace injuries prevent you from operating a vehicle or standing for long periods.
What Happens if the Insurance Company Denies My Workman’s Comp Case?” el_id=”1515617868731-f8f64b07-3d81″]If the employer or its insurance carrier deny your claim, you will have to ask the Commission to refer your claim to the hearing docket.
If you haven’t done so already, talk with a workplace accident attorney as soon as your claim is denied. He or she can help you prepare your case for hearing
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.
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.
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.
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?
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. Your hearing will be held close to your residence or wherever the accident happened.
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.
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.
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.
An attorney can help you limit the nurse case manager’s role.
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.
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
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.
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
- A traumatic brain injury that renders you unemployable.
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.