Are you an injured worker receiving wage loss benefits? Or a spouse or child receiving workers comp death benefits because a loved one died in a fatal work injury? Then you may qualify for cost of living adjustments under the Workers Compensation Act.
This article explains:
If you have questions about workers compensation in Virginia, call me today: 804-251-1620 or 757-810-5614. I’ve helped hundreds of injured employees in Richmond, Fredericksburg, Northern Virginia, Norfolk, Virginia Beach, Newport News, Roanoke, Charlottesville, and Winchester get every type of workers compensation benefit available. And I can help you get a cost of living increase and maximize the value of your workers compensation settlement.
A cost of living adjustment is an increase to the amount of workers compensation benefits you receive to make sure the value of your benefits does not decrease because of inflation. Inflation is the rate by which the cost of goods and services rises over time. As these costs and prices increase, the value of money decreases. For example, you would need to earn $1,921.85 per week in 2018 to have the same purchasing power as $1,000 per week in 1990.
Because many of you – especially those of you who have suffered severe injuries such as spinal cord injuries, herniated discs requiring spinal fusion surgery, shoulder injuries, brain injuries, and knee injuries – may receive workers comp benefits for years after your workplace injury, you need cost of living supplements so that your benefits are not low because time has passed.
You are entitled to a cost of living adjustment if you are receiving temporary total disability benefits, so long as you are not also receiving Social Security Disability.
Those of you who have turned 65 years of age and are receiving Social Security Retirement can, however, receive COLA increases. And Social Security Disability Insurance (SSDI) benefits convert to Social Security Retirement benefits when you turn 65.
Cost of living adjustments do not apply to temporary partial disability benefits.
Nor do cost of living adjustments apply to permanent partial disability (PPD) benefits for amputation injuries, loss of use of the injured body part, or scarring and disfigurement. The Commission uses your basic compensation rate, which is 2/3 of your pre-injury average weekly wage at the time of the accident, to calculate PPD benefits.
The cost of living increase is not self-executing.
You must file a claim for benefits with the Workers Compensation Commission that seeks the cost of living supplement specifically.
Unlike claims for other benefits, claims for cost of living adjustments are not subject to a statute of limitations.
This means that you can file for multiple COLA increases, each of which is compounded, if you have received TTD benefits for years and never filed for a cost of living adjustment before.
The Workers Compensation Commission has the power to require you to present information regarding your Social Security status. This is because of the “80 Percent Rule.”
Federal law states that if you receive workers compensation or other public disability benefits, AND Social Security Disability benefits, the total amount of these benefits cannot exceed 80 percent of your average monthly earnings before you became disabled. Private disability benefits, such as long term disability insurance benefits, are not included in this calculation.
Those of you receiving SSDI benefits, therefore, will have to prove that receiving the COLA increase will not push you above the 80 percent rule. You are not entitled to prior or future cost of living supplements so long as your SSDI payment and your workers comp award rate equal 80 percent of your average monthly wage.
Your employer, however, cannot require you to sign an authorization to disclose federally protected information, such as SSDI benefits, unless you are seeking COLA benefits. If you receive an authorization, contact a workers comp lawyer immediately.
No.
Neither the employer, workers comp insurance carrier, or Commission can require you to file for Social Security Disability benefits or early Social Security Retirement.
The annual workers comp cost of living adjustment is provided by statute.
Virginia Code Section 65.2-709, entitled Cost of Living Supplements for Total Incapacity and Dependents of Deceased, addresses the method for determining the cost of living increase. It states:
The amounts of supplementary payments provided for herein shall be determined by using a compounding method of computation annually. The percentage of change shall be determined by reference to the increase, if any, in the United States Average Consumer Price Index for all items, as published by the Bureau of Labor Statistics of the United States Department of Labor, from its monthly average, from one calendar year to another.
The greater the increase in inflation nationally, the greater the cost of living adjustment.
In Virginia COLA rates change yearly.
They are effective October 1st of each year.
Injured at work and need help navigating the workers comp claims process in Virginia? Call me today: 804-251-1620 or 757-810-5614. I’ll give you my opinion on whether you should hire a workers comp lawyer or can handle your own case.
I’ve served as work injury lawyer to hundreds of injured employees across the state. And I can help you with your case. All you have to do is call.