Change in Condition Application: Reopening a Workers Compensation Case When Your Physical Condition Worsens or Work Status Changes

 

Things Have Changed Since Your Work Injury Was Accepted as Compensable and the Commission Entered an Award Order … Now What?

 

You were injured on the job, filed a workers compensation claim, presented your case at a workers’ compensation hearing, and were approved for lifetime medical benefits and temporary total disability wage benefits.

 

A few months later your doctor released you to light duty. You went back to work for your pre-injury employer, but were terminated after a few days because there was no light duty work available long term.

 

You’re still in pain and have light duty restrictions, but you’re out of work and have no income. The insurance company told you your case is over because you returned to work. Is that true?

 

This article explains how to reopen your workers’ compensation claim if your physical condition or work status changes after the Commission has entered an Award Order finding your injury compensable. If you have any questions about your legal rights or Virginia workers’ compensation, contact attorney Corey Pollard for a free consultation by email or by phone at 804-251-1620 or 757-810-5614.

 

Virginia Workers Compensation Change in Condition Application

 

Your condition may change or worsen after your workers’ compensation claim is approved.

 

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

 

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

 

  • Has there been a change in your ability to work? In other words, has your treating physician given you new restrictions?

 

  • If there has been a change in your ability to work, is the change due to a condition connected to your industrial accident?

 

  • Did you return to light duty work but lose your job while still having restrictions related to your work injury?

 

  • Has your treating physician recommended a new type of treatment such as pain management or a surgical operation? If so, is the medical treatment related to your initial injury?

 

  • Have you cured your refusal of light duty work, medical treatment, or attendance at an employer-requested medical examination?

 

  • Did you start looking for work (marketing your residual work capacity) after being denied wage loss benefits based on inadequate marketing?

 

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

 

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

 

Yes. There are strict procedural rules you must follow to reopen your workers’ comp claim in Virginia. We recommend that you contact an experienced workers’ compensation attorney to help you comply with the Commission’s Rules on change in condition claims and to get the benefits you deserve.

 

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

 

  • You must file your change in condition claim with the Commission in writing and state the exact change in condition upon which you are relying. A general change in condition application may be insufficient to get additional benefits.

 

  • You must file your change in condition claim seeking wage loss benefits (temporary total disability  or  temporary partial disability) within 24 months from the last day for which compensation was paid pursuant to an Award or within 36 months if you are seeking permanent partial disability benefits. Though there are some exceptions, if you wait too long to file your change in condition application may be denied on technical grounds because the statute of limitations expired.

 

  • Under Rule 1.2 of the Rules of the Virginia Workers’ Compensation Commission, your right to compensation payments under a change in condition application extends back only 90 days before the date on which you filed your change in condition claim. This is called the “90-Day Rule.” For example, let’s say your doctor takes you out of work and you wait 200 days to file the application to reopen your claim. You will not be entitled to wage loss benefits for the first 110 days you were out of work, even if you prove your wage loss during that period was due to your initial work injury.

 

  • You must build, develop, and file evidence that supports your change in condition claim within 90 days of the date you filed the application to reopen your claim. If you don’t the defendants may file a motion to dismiss your claim.

 

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

 

What Happens After I File a Change in Condition Claim in Virginia?

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Yes.

 

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

 

You do not give up all your rights to workers’ comp benefits if you sign the forms or lose at the hearing on the employer’s application to suspend benefits. You can still file a change in condition application to reinstate your wage loss compensation or medical benefits.

 

The ability to file multiple change in condition applications is why many Virginia workers’ compensation claims  are litigated over a period of years, not months. And this prolonged litigation is why many injured employees try to negotiate workers compensation settlements.

 

Find Out More about Virginia Change in Condition Claims to Reopen Your Workers Compensation Case

 

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

 

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