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Ashcraft & Gerel
LLP
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The Virginia Workers' Compensation Act was enacted in the early twentieth century in response to growing concerns over unfair rules contained within the law and our legal system that greatly favored industry to the detriment of injured workmen. The Virginia Act was modeled largely on Indiana's system. The Workers' Compensation law represents a compromise: the employer surrenders the advantageous defenses that were available to its lawyers under the old laws for accidental injuries sustained by its employees in the course of employment; the employee surrenders his right under our legal system to sue the employer for money damages for such things as pain and suffering.
While it was originally intended to be non-adversarial, the workmens' compensation legal system has developed into a very litigious area of the law. Lawyers are common throughout the system. The insurance defense industry has a broad network of defense attorneys at its disposal. Some of these lawyers work for outside law firms, and some of these defense attorneys are employees of the insurance company itself. The injured worker would do well to have his own experienced lawyer as well. There are benefits and obligations of which only an experienced workers' compensation attorney will be familiar, and if the worker does not have his own lawyer, he may be at the mercy of the attorney for the insurance company. In addition, attorneys fees are regulated under The Virginia Workers' Compensation Act and are based on a contingency fee system, meaning that the injured worker will not pay an attorney fee unless and until benefits are recovered for him. There are some areas of the law in which one would expect to hear someone say that they cannot afford an attorney, but Virginia's workers' compensation system is not one of them, because it is designed so that virtually anyone can afford to have a lawyer.
Generally speaking, if an employer has regularly in service three or more employees in the same business in Virginia, it is covered by the Virginia Workers' Compensation Act and is required to insure payment of the benefits provided for in the law. It may do so by purchasing comp insurance from an insurance carrier authorized to do business in Virginia, by qualifying as an individual self-insurer, or by being a member in good standing of a group self- insurance association licensed by the Virginia State Corporation Commission. In addition to being insured, the employer must file evidence of its legal compliance with the Virginia Workers' Compensation Commission on an annual basis.
Even though an employer may be covered by the comp Act and therefore required to provide workers' compensation insurance coverage, its lawyers can still raise certain defenses to an injured worker's claim. For example, the employer's attorneys can challenge Virginia's jurisdiction over the claim. If the injured claimant fails to file a written claim for benefits within two years of his industrial accident, the attorney for the employer can assert the statute of limitations as a defense. Furthermore, even if the employer accepts responsibility for the accident, it can still avoid responsibility for paying wage loss benefits and medical expenses, if its attorneys can prove that the accident did not cause the claimed work-related disability. Finally, an employer can avoid workers' comp liability altogether if its lawyer claims and proves that the injured worker when hurt was not an employee but an independent contractor. Independent contractors are not under the law entitled to workmens' compensation benefits.
Two types of injuries are covered under the Act: accidental injuries and occupational diseases. Not every injury or accident sustained in the course of employment qualifies as an accidental injury or occupational disease; some workplace accidents or injuries are simply not covered by the Act. Often, the difference between winning a case and losing it is knowing how to avoid the tricks of the trade that insurance adjusters have in their arsenal. Consequently, it is extremely important that an injured worker consult with an experienced workers' compensation lawyer before providing a recorded statement to the workers' compensation insurance company.
When an injury is covered by the Act, the injured worker is entitled to certain basic benefits as part of his case. He may claim: 1) wage loss compensation; 2) permanent injury compensation (in limited instances); and 3) injury related medical expense coverage. If a covered injury produces total wage loss, the employee is entitled to receive weekly compensation equal to 66 2/3% of his pre-injury Average Weekly Wage (AWW) during the period of such total wage loss, up to the State maximum in effect at the time the worker was hurt. There is a maximum weekly compensation rate in Virginia that is based upon the average weekly wage of workers in the Commonwealth, as determined by contribution reports from the Virginia Employment Commission. These benefits are referred to as temporary total disability benefits. There are two ways for an injured claimant to meet the definition of temporary total disability: 1) by being declared medically unfit for all work activity; or 2) by being declared medically unfit for his pre-injury job and being unemployed as a result thereof.
If an injured employee returns to work with doctor imposed physical restrictions that prevent him from performing all of the rigors of his pre- injury work, he is entitled to compensation if his restrictions cause post- injury wage loss when compared to his average weekly wage (aww) at the time of the injury. These benefits are known as temporary partial disability benefits. Temporary partial disability benefits are payable at the rate of 66 2/3% of the difference between the claimant's pre-injury average weekly wage (aww) and the average weekly wages he is able to earn after the injury ... again, subject to the maximum weekly compensation rate.
The Virginia General Assembly has made a policy decision that employers and insurance companies are not required to pay temporary partial disability benefits in the case of injured workers who are "not eligible for lawful employment" (e.g., illegal aliens). Furthermore, this forfeiture also applies to the cases of claimants who would otherwise be eligible in their claims for continued total disability payments under the second definition of total disability discussed above (partially disabled/totally unemployed). Thus, while illegal aliens are not barred outright from coverage under The Virginia Workers' Compensation Act, they are barred from claiming and receiving wage loss compensation once they have regained some work capacity following their industrial accidents.
While temporary total and temporary partial disability benefits require proof of earnings loss before they are due and payable, The Virginia Workers' Compensation Act provides for monetary compensation without regard to wage loss in certain cases for injuries that cause permanent partial disability (ppd) or impairment. The Virginia Workers' Compensation Act simply lists the body parts that may trigger an entitlement to permanent partial disability payments. If a claimant has an injury to a listed body part that is permanent, he is entitled in his case to some compensation for it. Total loss or loss of use of a listed body part entitles the injured worker to a set amount of weekly compensation payments at his temporary total disability compensation rate (66 2/3% of his average weekly wage or aww). Partial loss or loss of use of such body parts entitles the worker to the corresponding percentage for the whole body part.
Generally speaking, the right to weekly compensation for temporary total disability (TT or TTD), temporary partial disability (TP or TPD) and permanent partial disability (PPD) is capped at 500 weeks total. Thus, in the case of the injured worker who receives 500 weeks of disability payments but who can never return to the work force, even after the expiration of the 500 weeks, that worker is cut off from all forms of compensation and is left to fend for himself once he draws that 500th payment in his claim. Only claimants who qualify for permanent total disability benefits can avoid this harsh result, but because of the very narrow definition of the claimants who qualify for permanent total disability, claims in which permanent total disability may be awarded are few and far between. Essentially, an injured employee can only claim lifetime permanent total disability benefits if the accident or occupational disease causes him to: i) suffer a brain injury that renders him permanently unemployable in gainful employment; or if he ii) suffers a permanent loss or loss of use of both hands, both arms, both feet, both legs, both eyes or any two thereof in the same accident; or iii) suffers an injury which, for all practical purposes, results in total paralysis.
The 500 week maximum benefit period represents the most that a typical claimant can receive. It is not a guaranteed entitlement. If an injured worker is permanently disabled from his pre-injury job but capable of light duty work, the employer is free to attempt to place him in a light duty job either inside or outside the company. The claimant is entitled to continue receiving his disability check until a new job is found, so long as he cooperates with vocational rehabilitation or job placement efforts. If a new job is procured at a lower wage, the injured worker would be entitled to claim the temporary partial disability compensation discussed above.
If a claimant's benefits are terminated short of the 500 week cut off, his attorney may apply for additional benefits if he again becomes disabled. However, there is a two year time limit for filing such applications.
If an injured worker dies as a result of the accident, his statutory beneficiaries are entitled to file a claim for what are called death benefits, which include wage loss compensation (subject to the 500 week maximum) and funeral expenses.
Injured employees hurt on the job are entitled to medical attention free of charge for their injuries that are causally related to the accident. If their claim is denied by the employer or its insurance company, the employees are entitled to choose their own treating physician. If their claim is later ruled compensable by the Commission, the employer and carrier are stuck with that physician. On the other hand, if the employer and insurance company accept responsibility for the injury from the outset, they may force the claimant to choose a physician from a list of at least three physicians that they provide. This gives the employer and insurer some degree of indirect input into the nature and extent of the claimant's medical care. Unlike the cash benefits discussed above, a claimant's right to accident related medical care is unlimited in terms of amount and duration. Indeed, the right to medical expense coverage lasts a lifetime. So long as a claimant can demonstrate that the medical care he requests is reasonable in amount, causally related to his accident, medically necessary and rendered by an authorized physician, the employer or its insurer must pay for the medical treatment.
In addition to paying for medical treatment to improve or cure the employee's injuries, the employer and insurer are responsible for providing prosthetics (a prosthesis or prosthetic device is a replacement for an artificial body part) and the like when an injured limb cannot be saved. Furthermore, claimants are entitled to wheelchairs, walkers, canes and crutches (and training in the use of these items) as the nature of the injury may require. Finally, if the treating physician and the Commission determine that it is medically necessary, the employer or its carrier will be responsible for furnishing bed side lifts, adjustable beds, and modifications of the employee's home (ramps, handrails, doorway alterations or other appliances or equipment). This latter entitlement, however, has an aggregate limitation of $25,000.00 for the life of the claim. A claimant's mileage to and from his medical appointments is considered a medical expense under The Virginia Workers' Compensation Act for which the Claimant is entitled to reimbursement.
As stated above, attorney fees in Virginia workers' compensation cases are regulated by the Commission. Attorneys are simply not entitled to a fee for their services unless the Commission says so. Attorneys fees are awarded by the Commission on a claim by claim or case by case basis; there is no attorney fee schedule. As a general rule, the amount of the attorney fee is directly related to the amount of compensation the lawyer wins or otherwise obtains, whether by settlement or award, for his client. Thus, as previously stated, legal representation in workers' compensation cases is very affordable in Virginia. With regard to permanent partial disability (PPD), the Commission generally awards the attorney 15% of the total amount of the permanency award. If the Claimant's lawyer settles the case for a lump sum settlement, the lawyer's fee will usually not exceed 20% of the lump sum.
Do you need a lawyer to help you appeal the insurance company's denial of benefits? Has a dispute arisen in your claim? Ashcraft & Gerel and its lawyers have over 50 years of experience handling Virginia workers' compensation claims. Our lawyers have a reputation for being aggressive and for having a broad and comprehensive knowledge of the law. Often this can make a difference in the amount of benefits you receive, including the amount of any award or settlement. Our Virginia office is located in Alexandria. If you'd like to speak to an attorney about a Virginia Workers' Compensation claim please feel free to click here to submit an inquiry using our help form on this Web site, click here to email us , or telephone us in our Alexandria office at 703-931-5500. Here is a list of just some of the geographic areas we serve, and, depending on the nature of the injuries, we may be willing to accept claims from much farther away: Alexandria, Arlington, Fairfax, Falls Church, Manassas, Leesburg, Herndon, Dumfries, Purcellville, Vienna, McLean, Langley, Tysons Corner, Annandale, Fredericksburg, Front Royal, Winchester, Luray, Loudoun County, Prince William County, Stafford County."
