I get many calls from injured employees who are concerned by the use of the word “temporary” with their workers comp wage loss benefits. And it’s understandable.
Under Virginia workers compensation employees who are injured in a workplace accident or who are diagnosed with an occupational disease are eligible for wage loss benefits and replacement income. These wage loss benefits are supposed to provide the injured worker with a wage comparable to what they had earned before the injury.
Temporary total disability (TTD) benefits are the most common form of wage loss benefits in Virginia workers compensation. They are available when you are unable to return to work because of your work-related injuries or occupational disease.
An injured employee’s right to temporary total disability benefits is often disputed in Virginia workers comp claim. Employers and insurance companies will look for any way possible to avoid having to offer you an award agreement that provides wage loss benefits.
You should start building your case for TTD benefits from the moment you file a workers compensation claim in Virginia. We recommend contacting an experienced Virginia workers compensation attorney right after you are hurt on the job so that he can begin investigating your case, conducting discovery, and putting together a strong theory of the case that he can present at your workers compensation hearing.
This article explains the ins and outs of temporary total disability benefits in Virginia workers comp. Call, text, or e-mail us today if you have questions about your claim or are looking for representation. You can also view our Workers Compensation Guide for more information abut the process.
I get many calls from injured employees who are concerned by the use of the word “temporary” with their workers comp wage loss benefits. And it’s understandable.
Their treating physician has said they’ll be unable to return to any type of work for a few months, and will likely have to change to a light duty job for the rest of their lives. That doesn’t sound “temporary” to them.
Do not let the word “temporary” concern you. You can receive temporary total disability benefits for a long time under Virginia workers compensation. The word “temporary” is used in contrast to “permanent” disability benefits. In addition to TTD benefits, an injured employee in Virginia may be entitled to two forms of permanent disability benefits:(1) permanent partial disability benefits for loss of a body part or loss of use of an injured body part and (2) permanent and total disability benefits when he or she (a) has suffered severe injuries to two or more body parts in the same workplace, (b) is paralyzed because of the workplace accident, or (c) has suffered a traumatic brain injury that prevents him or her from returning to any type of substantial gainful activity.
The Virginia Workers Compensation Commission will not determine your entitlement to these permanent benefits until you have reached maximum medical improvement for your work injuries.
I’m often asked, “How long can I be out on workers compensation?” Usually this question is asked when the employer or insurance adjuster starts to pressure the injured employee to return to work before he or she has been cleared medically.
Many injured employees suffer permanent limitations and restrictions because of their work accidents. In most Virginia workers compensation cases, however, you can only receive 500 weeks of TTD benefits. This may seem like a long time, but it is an inadequate amount of benefits if you suffer permanent wage loss because of your work-related injuries or occupational disease.
As a Richmond disability lawyer and Virginia Beach SSD attorney, I encourage my workers comp clients to apply for Social Security Disability Insurance (SSDI) benefits if they will be out of work for one year or more because of their industrial accident. You can receive SSDI benefits at the same time you receive workers compensation wage loss benefits -whether it’s TTD or some other type of income benefits. You can even receive long term disability benefits and VRS disability benefits while receiving TTD.
Before you can even think about receiving temporary total disability benefits in Virginia you must first prove that you sustained an injury by accident arising out of and in the course of your employment or an occupational illness. In other words, you must prove that your work accident or occupational illness is covered under the law. Just because you’re hurt at work does not mean that you will receive Virginia workers compensation benefits.
If the insurance company accepts your claim, or if you prove that your accident is covered after a hearing, there are two ways that you can receive temporary total disability benefits in Virginia. Both ways involve an examination of the medical evidence. This is why it’s so important to choose the right doctor after a work injury. A skilled attorney will know which doctors are most supportive of workers comp claimants on issues of disability and causation.
The two ways to receive TTD benefits in Virginia are:
Receiving light duty restrictions is not enough to qualify for temporary total disability benefits. You must also look for work within your restrictions and satisfy the Commission’s Guidelines on Looking for Light Duty Work to receive TTD benefits.
Sometimes your doctor’s work restriction notes may be ambiguous. You won’t know whether your doctor is restricting you to light duty work or taking you out of all work. And your phone calls go unanswered. My advice is to look for work anyways. The Commission won’t punish you for conducting a good faith job search to receive TTD benefits. This serves as an insurance policy of sorts if your claim goes to hearing.
Winning temporary total disability benefits under workers compensation when your treating physician has restricted you to light duty is more difficult than receiving temporary total disability benefits when you are restricted from all work. The insurance company will dispute your entitlement to wage loss benefits and force you to prove that you conducted a job search in good faith. It is rare that the insurance company will agree that your job search satisfied the law’s requirements. Attorney Corey Pollard has helped hundreds of injured employees prove that they satisfied the Commission’s job search requirement.
Section 65.2-500 of the Virginia Workers Compensation Act talks about temporary total disability benefits. It states:
when the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid … to the injured employee during such total incapacity a weekly compensation equal to 66 2/3% of his average weekly wages, with a minimum not less than 25 percent and a maximum of not more than 100 percent of the average weekly wage …
Let’s take a look at Virginia’s TTD statute piece by piece.
First, you will not receive your full wages if you are unable to work because of a workplace accident or occupational disease. Your wage loss benefits for temporary total disability are limited to two-thirds of your earnings for the 52 week period prior to your work accident. This figure is known as your pre-injury average weekly wage.
Your pre-injury average weekly wage not only determines the value of your temporary total disability benefits, but also your Virginia workers compensation claim as a whole. You should contact an experienced Virginia workers compensation lawyer to help you fight for a favorable average weekly wage. You do not want to accept a low figure – this serves as the basis for almost every type of workers compensation benefit available in Virginia, including a workers compensation settlement.
You can calculate your average weekly wage using a variety of methods provided by the Virginia Workers’ Compensation Act. An experienced workers’ compensation attorney can evaluate which method is best, but usually your average weekly wage is equal to the amount you earned while working for the employer during the 52-week period prior to your injury. Make sure to include any fringe benefits you receive in the calculation.
Some of you may have been working two jobs at the time you were hurt. If the jobs are substantially similar, then you can use your wages from the second job to calculate your temporary total disability benefits.
What happens if you did not work for the employer for a full year before your work injury? Then the Virginia Workers’ Compensation Commission will use a different calculation to determine your pre-injury average weekly wage and temporary total disability benefits. Remember, the insurance company is looking out for its best interest, not yours. You need to evidence to prove why a higher average weekly wage makes sense.
Those of you who are high wage earners are at a disadvantage under the Virginia workers’ compensation system. Why? Because you may receive less than two-thirds of your pre-injury average weekly wage after a work-related injury.
The Virginia Workers’ Compensation Commission sets maximum and minimum compensation rates each year. Authority to make these max and min comp rates is given to the Commission by Virginia Code Section 65.2-500(a), which also provides that the temporary total disability amount should be “not less than 25 percent and … not more than 100 percent of the average weekly wage.”
So, for example, those of you who sustained injuries in a 2014 work accident are limited to receiving TTD benefits in the amount of $967.00 per week, exclusive of cost of living adjustments. This means that if you made more than $1450 per week, you will receive less than 2/3 of your pre-injury average weekly wage if you are awarded temporary total disability benefits.
There is also a minimum compensation rate set each year. If you earn less than the minimum rate for the year in which you’re injured, or if 2/3 of your pre-injury average weekly wage is less than the minimum rate, you will receive the higher minimum rate amount. Sound confusing? It can be.
If these workers compensation rates seem low, that is because they are. Virginia workers’ compensation does not provide a windfall to the injured worker. We think that reform is needed badly and that the insurer should have to pay 2/3 of your average weekly wage regardless of how much you made before getting hurt. But that’s a discussion for a different day.
Unlike personal injury claims and some other types of lawsuits, temporary total disability benefits will not compensate you fully for your financial loss after a workplace accident. In fact you will likely face financial hardship because your temporary total disability benefits will equal less than your normal salary. This is precisely why you should retain an experienced workplace accident lawyer to help you evaluate all of your legal options and figure out a way to maximize your work injury claim’s value.
If your employer and its insurance company accept that your workplace accident or occupational disease is covered under the Virginia Workers Compensation Act and that you are restricted from all work, then you will start to receive temporary total disability benefits shortly after the work accident. Do not, however, allow this to lull you into a sense of security. You should still file your claim for benefits. Your employer does not have to file a workers comp claim for you.
Even if your entitlement to temporary total disability benefits is not disputed initially, you should still hire a lawyer to protect your legal rights. Without an order from the Commission awarding you ongoing temporary total disability benefits, the employer and its insurer may arbitrarily stop your benefits at any time. They don’t even have to file an Employer’s Application for Hearing to suspend your benefits. This puts you in a difficult financial situation while you wait for hearing.
If your employer and its insurer dispute liability, then your claim for temporary total disability benefits will go before a judge. At hearing, you must prove all elements of your claim because the injured worker has the burden of proof in Virginia workers’ compensation proceedings. Corey Pollard is a top-rated attorney for Virginia workers compensation hearings. Call him today.
Section 65.2-509 of the Virginia Workers’ Compensation Act states:
No compensation shall be allowed for the first seven calendar days of incapacity resulting from an injury … but if incapacity extends beyond that period, compensation shall commence with the eighth day of disability. If, however, such incapacity shall continue for a period of more than three weeks, then compensation shall be allowed from the first day of such incapacity.
Let’s break down the waiting period situation by looking at how it applies to three different scenarios:
Situation #1: You miss less than 7 days of work total. If miss less than 7 days of work then you will not receive any wage loss benefits under the Workers’ Compensation Act. You will be forced to deal with this wage loss without help.
Situation #2: You miss 8 to 21 days because of your work accident. Under this scenario you will receive wage loss benefits for some of the days you missed from work. For example you will receive 13 days of wage loss benefits if you miss 20 days total, provided you prove that you sustained an injury by accident arising out of and in the course of your employment.
Situation #3: You miss more than 21 days from work because of your job injury. Under this scenario you will receive wage loss benefits for every single day you miss because of your compensable work injury.
The bottom line is that you will only receive wage loss benefits for every day missed if you suffer an injury that is so severe that you miss several weeks of work.
It’s important to note, however, that you do not have to miss these days consecutively. If you go out of work for a few days then return for several weeks before going out for a longer period because of surgery, you can still receive wage loss benefits for each day missed.
Also, you should still file a claim for benefits even if you do not miss more than three weeks of work because of your job accident. Though the Commission will not docket your claim for a workers comp hearing on wage loss benefits, you can still receive a Medical Only Award that provides lifetime medical benefits for all treatment that is reasonable, necessary, and causally related to your injury.
What is the point of a workers’ comp waiting period?
Many state workers compensation laws contain waiting periods, though they are somewhat rare in the workers compensation systems found in other countries like Australia and Canada. Those who support a workers comp waiting period argue that it is a type of worker deductible, such as the deductibles we seen in health care insurance and auto insurance plans. In other words supporters of a waiting period believe that workers should bear some of the cost of the system – above and beyond being the ones with lifelong injuries.
We disagree with this logic. We believe that workers should not have a deductible when they are already giving up their right to pain and suffering through Virginia workers compensation and their temporary total disability benefits are paid at just two-thirds of their pre-injury average weekly. Further, many workers are incurring permanent disability because of their injuries. We do not think a deductible is appropriate when injured workers are limited with respect to the benefits they can receive through the workers comp system.
If you were injured in a work-related accident, you probably have many things going through your mind: How are you going to pay your bills? And how will you pay for medical treatment? Call Corey Pollard, named a Rising Star by Virginia Super Lawyers Magazine, at 804-251-1620 or 757-810-5614. Or complete the form on the right hand side of the screen. He’ll focus on getting you temporary total disability benefits while you focus on your physical and emotional recovery.
We represent all types of injured workers in claims arising out of all types of workplace accidents in and near Newport News, Hampton, Norfolk, Virginia Beach, Chesapeake, Richmond, Fredericksburg, Williamsburg, Charlottesville, Roanoke, Staunton, Prince William County, and Fairfax County. So no matter where you were hurt or what type of injury you suffered on the job, we can help.