What to Do When Your Workers Comp Benefits Stop Because of an Employer’s Application for Hearing

Are You Worried About Losing Your Workers Compensation Payments?

In Virginia Your Employer Can Try to Stop Your Workers Comp Benefits by Filing an Employer’s Application for Hearing to Terminate, Suspend, or Modify Benefits. But You Have Options to Avoid Losing Your Work Comp Payments.

If you are an injured employee reading this article, one of the following is probably true:

1. Your employer’s workers compensation insurance carrier voluntarily paid temporary total disability benefits and covered medical treatment for a period before suddenly stopping your wage loss checks or refusing to authorize additional treatment. If so, read my articles on how to file a workers comp claim in Virginia and what happens after you file a claim for more relevant information.

2. After you received an Award Order from the Workers Compensation Commission, either by submitting agreement forms, filing a stipulated order, or winning at the workers comp hearing, the employer and its insurer filed an Employer’s Application for Hearing to suspend, terminate, or modify your benefits.

3. Your claim is going smoothly and you continue to receive all the workers compensation benefits you are entitled to, but you want to know if you can lose your workers comp payments and how to avoid it.

4. You feel that you are being forced back to work before you are ready and you don’t want to do anything to jeopardize your workers comp payments.

No matter the reason you are visiting my website, I hope you find this article helpful.

I understand that workers comp benefits provide much needed financial security after a work injury or the diagnosis of an occupational illness. And that losing them means you may have to choose between putting food on the table or paying bills.

The purpose of this article is to help you avoid losing your workers comp benefits and to fight back when the employer is trying to cut off workers compensation payments by filing an Employer’s Application for Hearing.

Keep reading to find out what you can do when the employer stops work comp payments or you think you are in danger of losing benefits.

Then call me for a free consultation: 804-251-1620 or 757-810-5614. Come see why other attorneys, past clients, U.S. News and World Report, and Super Lawyers Magazine have voted me one of the best workers compensation lawyers in Virginia. I’m ready to help to you and your family.

Am I in Danger of Losing My Virginia Workers Compensation Payments?

Receiving an award of workers compensation is just the beginning. There is no guarantee that you will receive workers comp benefits indefinitely.

There is a risk you will lose your workers compensation payments if you:

• Are arrested or convicted of a crime and are put in jail. You cannot receive workers comp payments while incarcerated.

• Refuse to comply with a request or an order to have a medical examination. This includes independent medical examinations scheduled by the employer, claims adjuster, or nurse case manager.

• Refuse to comply with medical treatment that is reasonable, necessary, and recommended by your authorized treating physician.

• Refuse to meet with the vocational counselor hired by the employer or its insurance carrier.

• Accept a lump sum of money to close your workers comp case, also known as a “Compromise and Release.”

• Are released to your pre-injury job by a treating physician.

• Recover fully from your work injury and sign a Termination of Wage Loss Award.

• Return to work and are making the same amount of money as before your injury, or more.

• Have received 500 weeks of payments.

• Suffer severe injuries in an unrelated accident.

• Die from causes that are not related to your work injury or occupational disease.

If you think you are risk of losing your workers compensation benefits, I recommend calling an attorney right away. Often it is easier to avoid losing work comp payments than it is to get benefits reinstated after you stop receiving them.

Is My Employer Permitted to Try to Stop My Workers Comp Benefits in Virginia?

Unfortunately, yes. The employer has the right to try to cut off your workers compensation payments and medical care under the Virginia Workers Compensation Act.

Virginia Code Section 65.2-708, entitled Review of Award on Change in Condition, gives the Commission the power to review any award of compensation upon its own motion or upon the application of any party. As part of its review powers, the Commission may make an an award ending, diminishing, or increasing the compensation previously awarded.

How Do I Know if the Employer Has Filed to End My Workers Compensation Benefits?

Your employer cannot unilaterally stop workers comp wage loss benefits when you are under an open award for temporary total disability benefits or temporary partial disability benefits.

The Rules of the Workers Compensation Commission require the employer to file an Employer’s Application for Hearing to get the Commission’s permission to terminate your benefits.

The employer and its insurer must give you notice of the Employer’s Application for Hearing to stop benefits. Usually this is done by sending you a copy of the application and supporting documentation.

Virginia Workers Compensation Rule 1.4 Governs Employer Applications for Hearing

The employer must comply with Rule 1.4 before it stops your workers comp benefits.

Virginia Workers Compensation Commission Rule 1.4 states:

A. An employer’s application for hearing shall be in writing and shall state the grounds and the relief sought. At the time the application is filed with the Commission, a copy of the application and supporting documentation shall be sent to the employee and a copy to the employee’s attorney, if represented.

B. Each change in condition application filed by an employer under Section 65.2-708 of the Code of Virginia shall:

1. Be in writing;

2. Be under oath;

3. State the grounds for relief [the basis of the application to stop workers comp benefits]; and

4. State the date for which compensation was last paid.

C. Compensation shall be paid through the date the application was filed unless:

1. The application alleges the employee returned to work, in which case payment shall be made to the date of return.

2. The application alleges a refusal of selective employment or medical attention or examination, in which case payment shall be made to the date of the refusal or 14 days before filing, whichever is later.

3. The employer alleges a failure to cooperate with vocational rehabilitation, in which case payment must be made through the date the application is filed.

4. An employer files successive applications, in which case compensation shall be paid through the date required by the first application. If the first application is rejected, payment shall be made through the date required by the second application.

5. The same application asserts multiple allegations, in which case payment is determined by the allegation that allows the earliest termination date.

D. An employer may file a change in condition application while an award is suspended.

E. No change in condition application under Section 65.2-708 of the Code of Virginia shall be accepted unless filed within two years from the date compensation was last paid pursuant to an award.

F. A change in condition application may be accepted and docketed when payment of compensation continues.

The Commission considers Rule 1.4 a screening device that protects employees and establishes barriers that an employer or its insurer must overcome before cutting off workers compensation benefits or getting a hearing on a change in condition claim.

In my opinion, however, Rule 1.4 deprives injured employees of due process rights because an employer is permitted to stop paying workers comp benefits if the Employer’s Application for Hearing is docketed for hearing, even though the injured employee may win at hearing and get benefits reinstated. Not receiving weekly wage loss checks in the months between the filing of the Employer’s Application for Hearing and the reinstatement of benefits causes financial hardship.

What are the Most Common Reasons that Employers and Insurance Companies Try to Stop Workers Compensation Benefits?

What Happens after the Employer’s Application for Hearing to Stop Benefits is Filed?

The Commission follows several steps when processing an Employer’s Application for Hearing.

Technical Review of the Application

After an Employer’s Application for Hearing is filed, the Commission’s Claim Services Department will review the application to make sure it complies with the technical requirements of Commission Rule 1.4. If any of the technical requirements are not satisfied, the Commission will reject the application and issue an order stating that the employer must continue to pay wage loss benefits.

Common reasons for a technical denial of the Employer’s Application for Hearing to terminate benefits include:

1. The insurance claims adjuster or defense attorney did not sign the application under penalty of perjury.

2. The employer did not state the date through which it paid compensation.

3. The employer did not pay compensation through the proper date.

4. The employer did not pay compensation within two years of the date of filing of the application. It must do so even if you were released to full duty work and did, in fact, return to full duty work with the pre-injury employer.

5. The application alleges that you have failed to market your remaining capacity (i.e., failed to look for light duty work) when you are on an open award and have no obligation to look for work.

6. The application is based on an anticipated release to work. For example, some physicians will state that a patient is capable of returning to full duty work in two months. This type of evidence is not good enough for an Employer’s Application for Hearing to withstand technical review. The evidence must be closer in time to the date the application is filed.

Has the Employer Shown Probable Cause Exists to Stop Workers Comp Payments?

An Employer’s Application for Hearing to suspend benefits cannot be accepted and referred for a hearing on its merits unless the documents supporting the application give probable cause to believe the employer may win at hearing.

One of the Commission’s Staff Attorneys will decide if probable cause exists. Probable cause is defined as a “reasonable ground for belief in the existence of facts warranting the proceeding complained of.” It exists if a reasonable person could find that the facts alleged by the employer, if true, would result in the termination of benefits.

Put in plain English, if the employer submits documents that show a reasonable chance of success on the merits of the application, the Staff Attorney will likely refer the application to the docket for either an in-person or on the record evidentiary hearing so that a deputy commissioner can decide the case.

If the employer’s evidence is weak, the Staff Attorney will reject the Employer’s Application for Hearing by letter and order the employer and its insurer to reinstate benefits. The letter will explain why the application was denied.

Can I Submit Evidence to Dispute that Probable Cause Exists to Stop My Workers Comp Payments?

Yes.

The Staff Attorney who decides whether probable cause exists to suspend your benefits must consider evidence submitted by both the employer and you.

But you have to act quickly.

You must file a response within fifteen (15) days of the date the Employer’s Application for Hearing is filed.

What Happens After the Employer’s Application is Accepted or Rejected?

Virginia Workers Compensation Rule 1.6 states that either party may request review of a decision accepting or rejecting an Employer’s Application for Hearing within 30 days of the date of the decision.

If the application is referred for hearing and you disagree with the decision, I recommend talking with an attorney who handles Virginia workers compensation matters frequently. Sometimes the easier- and quicker – way to get benefits reinstated is to file a new claim for benefits instead of appealing the referral of the application.

If you decide to appeal the acceptance of the application anyway, then your letter requesting review must be specific. Under Commission Rule 1.6, you must “specify each determination of fact and law to which exception is taken” and send a copy of the letter to defense counsel.

Make sure that you include all documents supporting your request for review. The Commission will make a decision based on the documents you submit at this time; you cannot file additional evidence later.

After you file the request for review, the employer has 10 days to file a written response.

The full Commission, consisting of all three commissioners appointed by the General Assembly, will decide whether to affirm or reverse the Staff Attorney’s decision to refer the Employer’s Application for Hearing. A deputy commissioner does not have jurisdiction to overrule the decision accepting or rejecting an employer’s application.

If you do not like the full Commission’s decision, you have the right to appeal the acceptance of the Employer’s Application for Hearing to the Court of Appeals of Virginia.

How to Respond to an Employer’s Application for Hearing to Suspend Workers Comp Benefits

Depending on the reason given for the filing of the application to stop workers comp payments, you may have several options to fight back.

Below are a few suggestions on how to convince the Workers Compensation Commission to reject the Employer’s Application for Hearing:

Employer Alleging You are Capable of Returning to Pre-Injury Employment

If the employer submits a medical opinion stating that you are capable of returning to your pre-injury job, determine if any of the following defenses can be raised:

• You suffered multiple injuries in the workplace accident and at least one treating doctor continues to restrict you from work. For example, I have represented many clients who suffer from PTSD and depression because of a shoulder injury or herniated disc suffered on the job. Similarly, I represent many employees who are traumatic brain injury victims that have residual symptoms from post-concussion syndrome. Cases involving these types of catastrophic injuries often involve a team of healthcare providers. And if at least one treating physician disables you from work, you can defeat the Employer’s Application for Hearing.

• The doctor who stated you can return to work did not have an accurate or complete description of your pre-injury job duties. To prevail on its application for hearing, the employer must prove you are capable of doing all of the tasks that were required or expected of you at the time you were hurt. If you can do 99% of the job tasks, but there is something you still can’t do, the Commission should reject the application.

• You have returned to your doctor and the doctor provided additional work restrictions. If you do not feel capable of performing your job, but the doctor has released you to full duty, make a follow up appointment and talk with the doctor about all the problems you are having at work. It is common for doctors to provide additional light duty restrictions, or even take a patient out of work completely, if the patient has tried to return to the pre-injury job but cannot do it. And without additional restrictions, you will likely lose workers comp payments.

Employer Alleging You Refused Medical Treatment

If the employer’s application is based on an allegation that you refused medical treatment, determine if any of the following defenses can be raised:

• You have tried to stop smoking. Many surgeons, such as those who perform lumbar spinal fusion surgeries for spinal cord injuries, will not operate until you have stopped smoking. Research demonstrates that smoking negatively affects your ability to heal and recover post-surgery. If surgery is postponed for your work injury because you have not stopped smoking, the employer may try to cut off benefits. But if you file a detailed response explaining the efforts you have made to stop smoking, the Commission may reject the application.

• You rescheduled missed appointments. If you miss doctor’s visits or therapy sessions, the employer may try to stop payments. In this situation, make sure you try to reschedule the appointments and file a response that explains to the Commission the effort you have made to get back into treatment and the reasons you missed the appointments.

• The doctor cannot offer better than a 50/50 chance that the proposed operation will work. You have a high likelihood of defeating an Employer’s Application for Hearing alleging refusal of medical treatment if the doctor cannot guarantee that the surgery you are refusing will help.

• You have friends or family members who have suffered complications from similar surgeries. I have represented clients whose family members are paralyzed because a surgery went wrong. These clients, therefore, are understandably hesitant to undergo surgery. And the Commission may find that this is a justified reason to refuse medical care.

• You have already undergone a medical procedure that did not work. If you have a pre-existing condition or prior injury that required surgery and the surgery failed to correct it, then you may have a justified reason for refusing additional medical treatment for your work injury.

• You have a letter from the doctor stating that you are complying with treatment.

Employer Alleging Refusal of Light Duty Job Offer

If the employer alleges you turned down a light duty job offer within your restrictions, you can contest the application by:

• Asking your treating doctor to review the job description and state whether you can perform the light duty job. Make sure the job description is complete. If your doctor states that you are unable to perform the job, you have a high likelihood of defeating the application.

• Alleging that there was not a bona fide, or good faith, offer of light duty. It is not good enough for an employer to say it has light duty work available. It must provide details about the proposed job so that both you and your doctor can review the information and make a decision on whether you are capable of doing the job.

• Showing that the job offer is unreasonable. I have seen employers allege refusal of light duty employment when the employee refuses to accept a job that requires 24/7 availability. Unless your pre-injury job required 24/7 availability, this is likely unreasonable.

Employer Alleging Refusal to Cooperate with Vocational Rehabilitation

You have a responsibility to cooperate with the vocational rehabilitation counselor usually.

If the employer alleges you are not participating in vocational rehabilitation with full effort, you can contest the application to stop benefits by:

• Providing documentation of all the jobs you have applied to at the vocational counselor’s request. I have seen vocational counselor’s file affidavits that were inconsistent with the job search documents my client had.

• Providing documentation of the communication you have had with the vocational counselor. I have seen vocational counselor’s file affidavits that were inconsistent with the letters and emails they had sent my client. In one case I retrieved a voice message that proved the vocational counselor was lying about my client’s effort.

• Offering to participate in vocational rehabilitation again. You can cure any refusal to cooperate. A letter demonstrating that you want to cooperate can help defeat the Employer’s Application for Hearing or at least get benefits reinstated.

When Can Workers Compensation Payments Stop Without the Filing of an Employer’s Application for Hearing?

There is one situation where your workers comp wage loss benefits may stop, even though the employer has not filed an Employer’s Application for Hearing to terminate benefits.

Workers compensation payments stop when you have received a combined 500 weeks of temporary total disability, temporary partial disability, or permanent partial disability benefits. Unless you are approved for permanent and total incapacity benefits.

If you are found permanently and totally disabled, then work comp payments may continue for the rest of your life, so long as the employer does not file an Employer’s Application for Hearing and meet its burden of proof.

Medical benefits are not subject to the 500-week cap. The employer and its insurer are responsible for the payment of medical treatment for the workplace injuries for the rest of your life, as long as the treatment is reasonable, necessary, and performed by an authorized treating physician.

I want to help you keep your workers comp benefits when the employer and its insurer are trying to stop them.

Call me for a free consultation: 804-251-1620 or 757-810-5614. We will discuss what you can do so that you do not lose work comp benefits.

I represent injured employees across the state and can help you defeat the Employer’s Application for Hearing and negotiate a top-dollar Virginia workers compensation settlement. And I want to help you and your family.