Workers’ Compensation Benefits for Permanent and Total Incapacity in Virginia

 

Under Virginia law, most injured workers are capped at 500 weeks of wage loss payments, also called temporary total disability benefits. This arbitrary cap is enforced even if you continue to have restrictions after receiving 500 weeks of wage loss benefits and are unable to return to your pre-injury job or any other type of work.

 

There are, however, some exceptions to this rule. You may be entitled to wage loss benefits for the remainder of your life if you prove that you have permanent and total incapacity related to your workplace accident. This phrase – permanent and total incapacity – is strictly defined by the Workers’ Compensation Act.

 

This article explains how to prove you have permanent and total incapacity caused by your work injuries so that you can get the permanent and total disability benefits you deserve through Virginia workers’ compensation.

 

If you have any questions, or are looking for legal representation, contact workers’ compensation attorney Corey Pollard. Claims for permanent and total disability are almost always contested by employers and insurance companies, so it’s important to have a work injury lawyer in your corner so that you have the best chance of getting the lifetime cash benefits you deserve. Call or email Corey Pollard today for a free consultation.

 

How to Prove Entitlement to Permanent and Total Disability Benefits in Virginia Workers Compensation

 

Virginia Code Section 65.2-503(C) covers benefits for permanent and total incapacity. Under this code section, an injured worker may receive permanent total disability benefits when there is:

 

  • Loss of both hands, both arms, both feet, both legs, both eyes, or any two of these body parts in the same work accident;

 

 

  • An injury to the brain that is traumatic and severe enough to render the worker permanently unemployable in gainful employment.

 

Let’s break down the statute.

 

Loss of Both Hands, Both Arms, Both Feet, Both Legs, Both Eyes, or Any Two of These Body Parts in the Same Workplace Accident

 

You can receive permanent and total incapacity benefits even if you do not lose the body part entirely, such as with an amputation injury. The Workers’ Compensation Commission uses the terms “loss of” and “loss of use” interchangeably.

 

The loss sustained by an injured worker need not be complete. For example, the phrases “total and permanent loss” or “loss of use” of a leg does not mean that the leg is immoveable or that it cannot be used in walking around the house, or even around the block. They do, however, mean that the injured employee is unable to use the leg in any substantial degree in any gainful employment.

 

The best way to prove permanent and total incapacity is through impairment ratings, such as those used to obtain permanent partial disability benefits. If you do not have a medical impairment rating that quantifies your permanent disability, then you will lose your claim for permanent and total disability benefits under the Virginia Workers’ Compensation Act.

 

As a general rule, you need a permanent impairment rating of fifty percent (50%) or more in two or more body parts to qualify for permanent and total disability benefits. The lower your ratings, the lower your chance of receiving perm total payments.

 

There are, of course, exceptions. For example, the Commission found 100% disability to the left leg and 15% disability to the right leg, along with an inability to work, to be permanent and total disability. Georgia-Pacific Corp v. Dancy, 255 Va. 248 (1998).

 

Can I Receive Permanent and Total Disability Benefits By Combining Injuries from Multiple Workplace Accidents?

 

No.

 

If your claim for permanent total disability benefits is based on loss of use of two or more body parts, then you must have suffered the injuries in the same work-related accident. You cannot “stack” injuries from two or more work-related accidents to qualify for permanent total disability benefits in Virginia.

 

You may, however, receive permanent and total disability benefits based on the initial injury in the workplace accident and any compensable consequence injuries you suffered.

 

For example, you may have injured your left knee in the workplace accident. Because of left knee weakness, you use a cane and rely more on the right knee. Over time, this has placed more stress on your right knee and caused worsening of your arthritis.

 

You may be able to get the right knee injury covered under your award agreement as a compensable consequence of the left knee injury, presuming your treating physician is supportive. As such, you can combine the injury to your right knee with the injury to your left knee to prove permanent and total incapacity benefits.

 

When are Permanent and Total Disability Benefits Paid through Workers’ Compensation?

 

Permanent total disability benefits are not paid until the injured worker has received the total maximum allowable period of 500 weeks of temporary total disability benefits and temporary partial disability benefits.

 

You may, however, be able to file a claim and get a workers’ compensation hearing on your claim for permanent and total disability before the 500 weeks run out.

 

What Other Evidence Can Help Prove Entitlement to Permanent and Total Disability Benefits?

 

In addition to evidence from your treating physicians, you may want to obtain expert testimony from a vocational rehabilitation counselor. This person can testify to the difficulties you would have finding a job given your permanent impairment.

 

We use vocational expert testimony in perm total cases when the impairment ratings are low.

 

Can I Receive Permanent Total Disability Benefits if I’m Able to Return to Light Duty Work?

 

Yes – in some situations.

 

Because permanent and total incapacity benefits are based on permanent impairment, not wage loss, it is possible to receive these benefits even if you return to light duty work.

 

Hire A Virginia Workers Compensation Attorney To Win Your Claim For Permanent Total Disability Benefits

 

Workers compensation claims for permanent total disability benefits are heavily disputed by insurance companies because a successful claim results in lifetime compensation payments and medical benefits. You can expect the insurer to do everything it can to prove you are not permanently and totally incapacitated because of your workplace accident.

 

We understand the impact that your work-related injuries have had on your quality of life and ability to work. And we don’t want you to have to face the insurance company alone. Contact Corey Pollard today for help qualifying for all the workers’ compensation benefits you deserve, including permanent and total incapacity benefits, or negotiating a workers compensation settlement. We’ll also help you determine if you’re eligible for Social Security Disability benefits.

 

 

Corey Pollard
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