How Does Workers’ Compensation Work In Virginia?

Skilled Workers’ Compensation Attorney | Charlottesville, Virginia

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Lynn A. Bradley – Workers’ Compensation Attorney

I’VE HAD A WORKERS’ COMPENSATION ACCIDENT, WHAT DO I DO RIGHT NOW?

1. Be certain to report even minor accidents to your supervisor within 30 days of the date they occur. Do not wait. Report them immediately. Your supervisor or a human resources representative should provide you with a list of doctors (panel of physicians) to choose from when seeking medical attention. If they do not, you are free to seek treatment from the medical provider of your choice.
2. Keep a record of all the details of the accident (BE SPECIFIC), including the location of the accident, time, and witnesses to the accident. Also note to whom you reported it and when.
3. Get medical care if you need it. Most people minimize the need for care and expect that the injury will improve with time. Also, be specific when describing your accident to the medical provider.
4. Make sure you ask your doctor to provide a written excuse from work (if you are completely unable to work) or specific, written work restrictions if you are able to work restricted duty (sedentary work or light duty). Provide a copy of all work excuses and restrictions to your employer. Be sure to save a copy for your file.
5. If you speak with the employer, the insurer or anyone at the Virginia Workers’ Compensation Commission, note the date, time and name of the person you talked with. Also keep a detailed record of the conversation.
6. The insurance company may contact you to provide a recorded statement about your accident. What you say during this statement will affect your benefits. It is recommended you discuss your case with a lawyer BEFORE you give a recorded statement.
7. After the insurance company investigates your claim they may decide to accept the claim and make voluntary payments or deny the whole claim or certain parts of it. If the insurer denies the claim, or any part of it, this does not mean you are not entitled to benefits. It only means that the benefits will not be voluntarily paid. The Workers’ Compensation Commission makes the final decision whether the employer must pay for the injury or disease. Regardless of whether the insurer accepts the case and voluntarily pays benefits or if they deny all or part of the claim, the injured worker is responsible to file a claim with the Virginia Workers’ Compensation Commission to protect their rights.
8. For an accident case, you have two years from the date of your accident to file a claim. For a disease case, you have two years from the date the doctor tells you the disease is work related, or five years from the date you were exposed to the work condition causing the disease, whichever is sooner, to file a claim. The easiest way to file a claim is to fill out a Claim for Benefits (VWC Form 5 attached) and file it with the Virginia Workers’ Compensation Commission. You can do so four different ways:
   1. In person: Deliver VWC Form 5 to the main office or a regional office. See the attached list of offices, addresses and directions.
   2. Mail: Mail VWC Form 5 to Virginia Workers’ Compensation Commission, 1000 DMV Dr.,, Richmond, VA 23220. Be sure to mail it certified mail, return receipt and save the date stamped copy of the certified mailing for your records.
   3. Fax: Fax VWC Form 5 to 804-367-6124. Save your fax transmittal sheet showing the time and date it was faxed.
   4. Electronically: If you have received a JCN number (case number) and a PIN number form the Commission, you can set up a WebFile account and file VWC Form 5 electronically.

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WHAT TYPE OF INJURIES QUALIFY FOR WORKERS’ COMPENSATION?

Employees are entitled to receive compensation for an “injury by accident” or an “occupational disease.”

1. Injury by Accident: In order to be covered, an “accident” must:
   1. Occur at work or during a work-related function.
   2. Be caused by a specific work activity.
   3. Happen suddenly at a specific time. (Injuries incurred gradually or from repetitive trauma are not covered, although certain diseases caused by repetitive trauma may be covered.)
2. Occupational Disease: In order to be covered, a “disease” must:
   1. Be caused by the work.
   2. Not be a disease of the back, neck, or spinal column. 

WHAT DOES WORKERS’ COMPENSATION PAY FOR?

The employer must pay the following benefits under the Act :

1. Wage Benefits:
   1. Temporary Total Disability (TTD): While temporarily unable to perform any work, you are entitled to 2/3 of your gross average weekly wage up to a set maximum weekly limit (currently the maximum weekly benefit amount is $967.00). There must be seven (7) days of disability before benefits are payable. However, if you are disabled for more than three weeks, you will receive payment for the first seven days you missed. Benefits cannot exceed 500 weeks unless you are determined to be totally and permanently disabled. You can receive a yearly cost-of-living increase on TTD benefits (See #6 below).
   2. Temporary Partial Disability (TPD): If the injured employee cannot return to regular work and is given a light duty job at a lower wage, benefits are 2/3 of the difference between the pre-injury wage and the current pay up to the maximum weekly limit. Cost of living supplements are not paid on TPD benefits.
2. Lifetime Medical Benefits: Medical expenses for conditions caused by the accident or occupational disease are payable for as long as necessary, provided a claim was filed by the employee within the required time period. The treating physician may refer the employee to other doctors. Once treatment begins, the physician cannot be changed without approval of the employer/carrier or after a hearing by the Commission. The employee must cooperate with medical treatment or the weekly benefits may be suspended. Medical bills should be sent to the insurance carrier for payment. Medical benefits also include reimbursement for prescription and reimbursement for your mileage to and from medical appointments.
3. Permanent Partial Disability (PPD): This benefit is not dependent on your ability to work. These benefits are payable for the permanent loss of use of a body part such as an arm, leg, hand, foot, toe or finger. Vision and hearing loss, as well as disfigurement may also be compensated. Impairment in a back, neck or the body as a whole are not compensated. Benefits are for a specific number of weeks depending on the percentage of loss and the body part involved. The employee can receive these benefits if maximum medical improvement has been reached and they are not receiving temporary total disability benefits (TTD above).
4. Permanent and Total Disability (PTD): Lifetime wage benefits may be payable if an individual loses both hands, arms, feet, legs, eyes, or any two in the same accident, or is paralyzed or disabled from a severe brain injury. The 500 week limit on wage loss benefits does not apply and benefits can be paid for the person’s lifetime.
5. Death Benefits: A surviving spouse, children under 18, children under 23 enrolled full time in an accredited educational institution, parents in destitute circumstances or other qualifying dependents may be entitled to wage loss benefits for a maximum of 500 weeks. Death benefits also include funeral expenses not to exceed $10,000 and transportation cost of $1,000.
6. Cost of Living Adjustment (COLA) Increase: A person receiving temporary total disability (TTD see #1 above), permanent total disability (PTD see # 4 above) or death benefits (see #5 above) is entitled to cost of living adjustment/increase October 1 of each year if the date of the accident is prior to July 1 of that year and if the combination of workers’ compensation and Social Security benefits are less than 80% of the pre-injury wage. Cost of living increases are not automatic and must be specifically requested by the employee with sufficient documentation form the Social Security Administration.
7. Vocational Rehabilitation: Employees who are released to light duty work must prove that they are actively looking for a light duty job, even if they expect to return to their regular job. If you are not under an award of wage benefits, you must look for work , or “market”. Failure to do so will affect your ability to receive wage benefits. See the attached “Guidelines for Looking for Light Duty Work.” If you are under an award of wage benefits and you are released to any type of employment (sedentary work or light duty work), a vocational rehabilitation professional may be hired to help you find work. You are required to cooperate with this person and any job search. Failure to do so could result in termination of your wage benefits. See the attached “Vocational Rehabilitation Guidelines.” If the vocational rehabilitation professional finds you work within your restrictions, you must accept all suitable positions offered, or risk suspension of benefits. Where appropriate, an employee may be entitled to retraining.

HELPFUL HINTS 

1. If your treating doctor refers you to another health care provider, including a specialist or physical therapist, make sure he she puts the referral in writing and save a copy for your records.
2. If your health care provider changes your work status, be sure he or she gives you a written work excuse. If he or she is releasing you to light duty work, get a written copy of any restrictions. You should provide this to your employer and save a copy for your records.
3. If you have a name change or a change of address or phone number, please notify the Commission and your insurance adjuster immediately. This is required by law.
4. Keep a record of your mileage to and from all medical appointments, including physical therapy. Note the date, the medical provider’s name, the address of their office and your round trip miles for each and every visit. You are entitled to reimbursement for your mileage.
5. If you have paid co-payments or prescriptions, please save a copy of the receipt and proof of payment. You can be reimbursed by the insurer.
6. If you receive wage benefits or mileage or prescription reimbursement, save a copy of each check stub or make a photocopy of the check before you cash it. It is also important to save the envelope, with the postmark, and staple it to the stub or photocopy. Keep these in a safe place in the event you need them in the future.
7. If you are receiving wage benefits under an open award, the insurer has a fourteen-day grace period (from the last day of the check period) in which to forward your check, without penalty. If the check is sent more than fourteen days (from the last day of the check period) past due, the insurer is required to pay a twenty percent penalty.
8. If you are receiving temporary total wage (TTD) benefits, you are required by law to report any income received and any return to work, either in a light duty or full duty capacity. Be prepared to provide the name, address, and phone number of the employer, your start date and the amount of wages you have or will receive.
9. If you are receiving temporary partial wage (TPD) benefits, you are required by law to report the income you receive. Provide copies of all pay stubs to the insurer. If your work status changes, your employer changes, your restrictions change, or the amount of light duty wages equals or exceeds your pre-injury average wage, advise the insurer immediately.
10. If you have returned to light duty work, do not terminate your employment, without speaking to an attorney first. Voluntarily termination or termination for cause from light duty work provided with or secured by the employer/insurer could result in loss of future wage benefits.
11. Please be aware that workers’ compensation insurers often hire private investigators to conduct surveillance of injured workers and record the injured workers’ activities. 

If you need assistance with your workers compensation case, we look forward to talking with you and appreciate the opportunity to meet you today.

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