We understand the disappointment and heartache that comes with a workers’ compensation denial. And we know the stress and anxiety a denial can cause as you try to figure out what you’ll do next. Remember – a denial is not the end. You can fight back.
Denied Workers’ Comp in Virginia? Here are Your Next Steps.
You have received awful news in the mail. The insurance company has denied your workers’ comp claim. It will not cover the medical treatment your doctor has recommended. Nor will it pay you the temporary total disability benefits you’re seeking.
If you believe that you have a valid claim that should have been approved, we recommend contacting a workers’ compensation attorney. You may be able to appeal the workers’ comp denial through the Workers’ Compensation Commission.
This article explains the steps to take if your claim for workers’ comp is denied. We encourage you to use it as a brief overview of what to expect after a workers’ compensation denial. Then call, text, or email Corey Pollard for help navigating the Virginia workers compensation system. We have helped hundreds of Virginia’s injured employees get the benefits and lump sum settlements they deserve. We know the rules and the law – and we can help guide you after your Virginia workers’ comp claim is denied.
Common Reasons Workers’ Compensation Claims Are Denied
Before you start to fight, you need to determine why your workers comp claim was denied in the first place.
I used to represent employers and insurance companies in Virginia workers compensation claims. And if there’s one thing I learned (and hopefully there was more than one thing), it’s that some insurance adjusters think that fraud and symptom exaggeration are everywhere. Even though this isn’t true – and studies have shown that fraud by claimants is relatively rare – some insurance adjusters sill think that most injured employees are trying to get more than they deserve.
Why should this matter to you? Because it means that insurance companies are looking for any reason – any red flag – to deny your workers’ compensation claim.
Workers compensation insurance companies investigate all claims closely. But some claims get extra attention and close scrutiny. If one of the below factors was present at the time you had a work accident, then expect the insurance company to investigate each and every detail of your claim.
Below is our list of the 10 most common reasons that workers compensation claims are denied:
1. You Did Not Give Your Employer Notice of the Accident and Injury Within the Required Time
Timing is everything in Virginia workers compensation. After you’re injured, you must give written notice of the accident and injury to your employer right away. If you don’t, then you are providing the employer and insurance company with possible defenses to your claim.
Waiting to report the accident will raise a red flag for the insurance company. They’ll argue that they were unable to complete an accident investigation or that you weren’t really hurt at work, or else you would have reported it right away.
If you have been hurt at work, tell your employer! If you wait, you might miss out on the benefits you are rightly entitled to.
2. You Failed a Drug Test or Had Alcohol in Your System
Virginia workers compensation is a no fault system. You don’t have to prove that your employer’s negligence caused your work accident to receive benefits. And you can receive benefits even if your own negligence or mistake caused your injury.
There are some actions, however, that the Virginia Workers Compensation Act finds unforgivable. If you were intoxicated or under the influence of drugs at the time of your work accident, you may be barred from receiving benefits.
When you go to the hospital or doctor for your work injury, your employer may ask the medical provider to test you for alcohol and drugs. If the test shows that you were under the influence of alcohol or drugs when the injury happened, the insurance company will probably deny your claim.
You don’t automatically lose your claim if you test positive for drugs or alcohol after the accident. The employer and its insurance company must prove that your intoxication or drug use was at least partly responsible for your injury.
3. You Never Received Medical Treatment or Waited Weeks to See a Doctor
Even if you hire every justice on the U.S. Supreme Court to represent you, the insurance company will deny your workers’ compensation claim if you don’t receive medical treatment.
If you don’t get medical care, or wait weeks or months to see a doctor, the insurance company can argue that you were not injured at work or else you would have sought immediate medical attention.
It is difficult, if not impossible, to win a case where the injured employee receives no medical treatment. I’ve never seen it happen.
On the other hand, the Commission may award your claim for benefits even though you waited to get treatment – as long as you have a reasonable excuse and sought medical treatment within one to two weeks after the accident. I’ve had two recent cases where this happened.
In the first case my client waited two days to receive medical treatment after a serious tractor-trailer accident. But he had valid reasons for doing so: 1) he was injured out of town and stuck in a hotel room with no transportation and 2) he was hopeful that his symptoms would improve in a few days.
In the second case my client waited more than one week to receive treatment after a serious back injury. The Commission found this was acceptable because my client was off work for several days after the accident (it was a holiday weekend ) and was waiting to see if his symptoms improved before he had to return to work.
4. You Were Injured on the First Day of Work
If you are injured soon after starting your new job, the insurance company may examine your claim closely and deny it pending further investigation.
The insurance company is looking for evidence that you injured yourself with a past employer or while you were out of work, but waited to file a claim until you had workers’ comp coverage.
5. You Filed a Claim After Being Terminated or Receiving Disciplinary Warnings
The insurance company will speak with your employer after it receives notice of your claim. If the employer has fired you or has issued several disciplinary warnings before the claim was filed, the insurance company will take a closer look at your claim.
In my experience insurance companies like to argue that there is an ulterior motive for the filing a workers’ compensation claim and that the injured employee was not hurt as alleged. The insurance company may argue that you were an unhappy employee looking to either get back at the employer by filing a claim or to protect your job by filing a claim because you’re worried that you’ll be fired.
If your employer has notified employees that business is slow and that layoffs are planned, the insurance company may deny your claim pending further investigation.
6. You Missed the Deadline to File a Claim
You must file your workers’ comp claim within the time limits specified by the Virginia Workers’ Compensation Act. There are different statutes of limitations that may apply depending on the injury or occupational disease alleged and the actions taken by your employer after the accident. Read my article, Virginia Workers’ Compensation Statute of Limitations, for more information.
If you do not file your workers’ comp paperwork on time, your employer and its insurance company will have another reason to deny your claim.
7. You Have a Pre-Existing Condition or Past Work Injury
If you do not file your workers’ comp paperwork on time, your employer and its insurance company will have another reason to deny your claim.
For example, many of you have experienced back problems in the past. Maybe you’ve even had a lumbar diskectomy or lumbar fusion to try to address the pain and symptoms.
If you return to work after the surgery, but suffer a new injury by accident, that injury may be covered under workers’ comp. You can receive benefits if you show that the new injury aggravated, accelerated, or exacerbated your pre-existing condition.
I’ve won many of these types of cases for clients over the past few years and have obtained workers compensation settlements for others with pre-existing conditions. But trust me, the insurance company denied these claims initially.
If you have a pre-existing condition or history of treatment for the body part injured in the new work accident, I recommend contacting a Virginia workers compensation lawyer right away.
8. No One Witnessed Your Accident
Many work accidents and injuries are unwitnessed. Not everyone works in a team. And even if you do, your team members may have been busy with their own responsibilities at the time of your injury and not have seen your accident.
Though unwitnessed accidents are common, the insurance company may deny your claim and make you meet your burden of proof at a workers’ comp hearing. This is why it is so important to notify your employer and co-workers right away – so that no red flags are raised.
9. You Were Not Injured at Work
Workers’ compensation covers injuries by accident arising out of and in the course of employment. You must have been injured while performing your job duties to receive benefits. An injury at home that impacts your ability to work is not covered.
You may, however, be eligible for benefits if you were injured off-site while completing a work assignment or while attending an employer-sponsored event. These types of claims are usually disputed by insurance companies. That doesn’t mean you’ll lose! But it does mean that you may have to fight harder to get what you deserve.
10. You Refused to Treat with an Authorized Medical Provider
Under Virginia workers’ comp the insurance company has some control over who you treat with. If the insurance company offers you a list of doctors to treat with after the accident, but you decide to treat with your own doctor, your claim will be denied.
I recommend consulting with a workers compensation attorney before making any important decisions regarding medical providers. If you treat with the wrong doctor, you may be responsible for payment of those medical expenses even though you suffered an injury that is covered by workers’ comp otherwise
Appealing a Workers’ Comp Denial in Virginia
Now that you know why the insurer denied your workers’ comp claim, you may want to appeal the decision. You should file a claim for benefits with the Workers’ Compensation Commission if you haven’t done so already. If you have, then ask the Commission to refer your claim to the hearing docket.
Once you request a hearing, your case will be decided by a deputy commissioner. This is the title given to workers’ compensation judges in Virginia. The deputy commissioner listens to testimony from all witnesses and reviews the documentation, including medical records, in your case. Then he or she makes a decision based on the facts and applicable case law.
If you disagree with the deputy commissioner’s ruling, you have three options: 1) accept the decision; 2) file a motion for reconsideration asking the deputy commissioner to review his or her decision and change it; or, 3) file an appeal with the full Workers’ Compensation Commission within 30 days of the date of the deputy commissioner’s decision. In most cases your best option is to request review by the Commission.
If either party request review by the full Commission, then the full Commission will issue a schedule for written statements. The full Commission will review the parties’ written statements and the evidence in the case to make its decision. Sometimes the full Commission asks the parties to attend oral argument. This is rare.
Any party disagreeing with the full Commission decision may file an appeal with the Court of Appeals of Virginia within 30 days of the full Commission’s written decision. After the Court of Appeals either party can petition the Supreme Court of Virginia to hear the case. The Supreme Court rarely grants these petitions.
What to Expect With a Denied Workers Compensation Claim in Virginia
Here are some things you should know when fighting a denied workers compensation claim in Virginia:
1. The insurance company will not pay benefits until the claim is resolved. This means you will not receive wage loss benefits unless the insurance company accepts your claim, the Commission awards you benefits after a hearing, or you settle your case.
2. You will not get a decision at the workers’ comp hearing. You may have to wait several weeks to receive the deputy commissioner’s decision.
3. You will not receive benefits while your case is pending on appeal. Insurance carriers often appeal decisions to put financial pressure on injured workers. Even if the deputy commissioner awards you benefits, you may have to wait several months to receive cash payments while the insurance company exhausts its appeals.
4. You should seek medical treatment on your own. It’s important that you obtain medical care for your work injuries while your appealing a denied claim. The longer you wait to receive medical treatment, the longer it will take you to recover physically. If you don’t have health insurance then obtaining treatment can be a financial hardship. Contact us today for a list of free and low-cost medical providers in Virginia. We’ll also provide you with a list of community resources that can help you during this difficult time.
5. Get work restriction notes every time you leave the doctor’s office. It’s important that you obtain work status notes to build your claim for wage loss benefits. Without documentation that you’re unable to work or are limited to light duty, your claim for temporary total disability or temporary partial disability benefits will likely be denied.
6. Document everything. This includes your symptoms (keep a pain journal or headache journal), your doctor visits, your therapy appointments, and your limitations and the changes in your ability to perform activities of daily living. If you’re released to light duty work but your employer cannot accommodate your restrictions, then you must search for work. Make sure you provide your attorney with a list of your job search efforts (which employer, what position, where located, when applied, and the outcome of the contact) every two weeks.
7. You can settle your case at any time, even if it’s denied. Contact a lawyer to discuss the appropriate settlement value of your case and to negotiate on your behalf. The insurance company and its adjusters and attorneys do this for a living. It’s important you have someone in your corner who can level the playing field.
8. The defense attorney, adjuster, and nurse case manager are not your friends. They have one goal: to reduce the insurance company’s exposure. That means limiting the payments you receive.
Free Case Review Following a Denied Workers’ Comp Claim
Navigating the process after a denied workers’ compensation claim is difficult for injured workers and attorneys with limited experience handling workers’ compensation attorneys. We recommend contacting Corey Pollard, a top-rated workers’ comp attorney in Virginia, for a free strategy session. We’ll listen to the facts of your case and provide guidance on whether you should appeal the workers’ comp denial.
We handle all workers’ compensation cases on a contingency fee basis. That means if we don’t win on your behalf, you don’t pay. So you have nothing to lose by contacting us to discuss your denied workers’ comp claim.