Virginia Workers' Compensation
About half my law practice is handling workers' compensation cases.
I began taking on such cases in 1989 when I was working for a local firm, and I would be happy to put my broad experience and deep knowledge of workers' compensation law to work for you.
I began taking on such cases in 1989 when I was working for a local firm, and I would be happy to put my broad experience and deep knowledge of workers' compensation law to work for you.
Personalized Attention and Broad Trial Experience
Not only do I know workers' comp law and the workers' comp administrative law judges in the area after decades of workers' comp work, but through the other (non-workers' comp) half of my practice I’ve honed my litigation skills and evidentiary knowledge in front of juries and a wide variety of state and federal court judges.
I’m often in court multiple times a week, sharpening my trial skills, cross-examining witnesses, presenting evidence, and arguing cases to the court.
It has been an important part of my practice to maintain direct personal contact with my clients. Rather than delegating work on your case to other staff, as is done at many law firms, I handle every aspect of your case so that you benefit fully from my 30 years of trial experience.
No secretaries or paralegals will work on your file or learn your personal confidential information. All your communications will go directly to me -– not filtered through a staff member. Because I insist on direct communication, I will not always be available to answer the phone, but I generally am able to return calls by the end of the day.
Appointments are set at a time and place of YOUR convenience.
(See Footer or Contact Page)
I’m often in court multiple times a week, sharpening my trial skills, cross-examining witnesses, presenting evidence, and arguing cases to the court.
It has been an important part of my practice to maintain direct personal contact with my clients. Rather than delegating work on your case to other staff, as is done at many law firms, I handle every aspect of your case so that you benefit fully from my 30 years of trial experience.
No secretaries or paralegals will work on your file or learn your personal confidential information. All your communications will go directly to me -– not filtered through a staff member. Because I insist on direct communication, I will not always be available to answer the phone, but I generally am able to return calls by the end of the day.
Appointments are set at a time and place of YOUR convenience.
(See Footer or Contact Page)
Lawyers who “specialize” in workers' comp and/or disability law
There are a number of firms that "specialize" in workers' comp or disability law. They often have multiple offices in different parts of the state, and sometimes the lawyers staff several offices on different days of the week. The lawyers in such firms end up practicing only in front of a few administrative law judges and use and know only the more relaxed evidentiary rules applicable in Comp hearings.
Moreover, "specialized" workers' comp lawyers usually have hearings only a couple of times a month (or less), particularly if the law firm is essentially a “settlement mill.”
Also be aware that firms that "specialize" in workers' comp generally have a large number of paralegals and administrative assistants who do a lot of the work-up of a case.
There are a number of firms that "specialize" in workers' comp or disability law. They often have multiple offices in different parts of the state, and sometimes the lawyers staff several offices on different days of the week. The lawyers in such firms end up practicing only in front of a few administrative law judges and use and know only the more relaxed evidentiary rules applicable in Comp hearings.
Moreover, "specialized" workers' comp lawyers usually have hearings only a couple of times a month (or less), particularly if the law firm is essentially a “settlement mill.”
Also be aware that firms that "specialize" in workers' comp generally have a large number of paralegals and administrative assistants who do a lot of the work-up of a case.
Injured workers generally only get one chance to present a winning case.
The Workers' Compensation Act is administered by the Virginia Workers' Compensation Commission (VWC). The Commission sends administrative law judges (Deputy Dommissioners) out to various localities around the state to hold hearings and decide the cases/issues that are presented to the judge. Decisions by these judges are usually the way the case/issue will ultimately be decided, so it is critical to make a strong presentation at the hearing.
Parties do have a right to appeal such decisions to the three Full Commissioners in Richmond, and appeals can then potentially be taken from the Full Commission into the regular Court of Appeals and the Virginia Supreme Court. It is exceedingly rare, however, that a party ever gets another chance to present more or new evidence beyond the first hearing with the Deputy Commissioner. Appeals are almost always limited to re-examining the evidence presented at the original hearing and assessing whether the law was correctly applied to those facts.
Parties do have a right to appeal such decisions to the three Full Commissioners in Richmond, and appeals can then potentially be taken from the Full Commission into the regular Court of Appeals and the Virginia Supreme Court. It is exceedingly rare, however, that a party ever gets another chance to present more or new evidence beyond the first hearing with the Deputy Commissioner. Appeals are almost always limited to re-examining the evidence presented at the original hearing and assessing whether the law was correctly applied to those facts.
The Workers' Comp Act is Designed to Help Injured Workers, But It Is Not Simple.
Both the Commission and the Courts have long recognized that:
“The purpose of the Workers' Compensation Act is to protect the employee. It should be liberally construed in harmony with the humane purpose of the Act. The Commission procedures are not required to be held in strict conformity with civil courts.” Leeson v. Washington County School Board, 76 Va. WC 193, 195 (1997)
Despite this recognition -- and despite the fact that the hearings are more informal that in regular courts, with
simpler evidentiary rules -- employees nevertheless can and do lose
cases and issues that could have been won with proper legal representation.
The Workers' Compensation Act is complex.
Below is the Commission's "injured Workers' Guide." It is a solid basic description but doesn't begin to explain the complexities that can arise around the law and the facts of each case. The Commission's website also has many other documents and resources for injured workers, but exploration will likely do more to indicate the steep challenges involved in self-representation than anything else. See, e.g., the 20-page "Rules of the Commission" and the 16-page "Claims Service Quick Reference Guide."
The insurance companies agents know the law much better than an injured worker.
Moreover, they will involve an experienced workers' comp defense lawyer in any case that goes
to a hearing and in any case where a settlement is reached.
Shouldn't you have a lawyer too?
“The purpose of the Workers' Compensation Act is to protect the employee. It should be liberally construed in harmony with the humane purpose of the Act. The Commission procedures are not required to be held in strict conformity with civil courts.” Leeson v. Washington County School Board, 76 Va. WC 193, 195 (1997)
Despite this recognition -- and despite the fact that the hearings are more informal that in regular courts, with
simpler evidentiary rules -- employees nevertheless can and do lose
cases and issues that could have been won with proper legal representation.
The Workers' Compensation Act is complex.
Below is the Commission's "injured Workers' Guide." It is a solid basic description but doesn't begin to explain the complexities that can arise around the law and the facts of each case. The Commission's website also has many other documents and resources for injured workers, but exploration will likely do more to indicate the steep challenges involved in self-representation than anything else. See, e.g., the 20-page "Rules of the Commission" and the 16-page "Claims Service Quick Reference Guide."
The insurance companies agents know the law much better than an injured worker.
Moreover, they will involve an experienced workers' comp defense lawyer in any case that goes
to a hearing and in any case where a settlement is reached.
Shouldn't you have a lawyer too?
Workers' Comp Essentials
Below is the Commission's "Injured Workers' Guide."
VWC "Injured Workers' Guide" - 2017
INFORMATION FOR EMPLOYEES
If you have been injured at work, you should file a claim immediately.
TYPES OF INJURIES UNDER THE ACT:
Employees are entitled to receive compensation for an "injury by accident" or an "occupational disease."
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 are covered.)
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.
MINOR INJURIES:
If you suffered a minor injury at work, you should file a claim with the Commission within the time limits stated below if your injury requires additional medical treatment or results in time loss from work.
TIME LIMITS FOR FILING A CLAIM:
An employee must file a claim with the Workers' Compensation Commission within two years from the date of the accident or any right to benefits may be lost. Claims for an occupational disease must be filed within two years from the date the doctor tells the employee the disease is work related, or five years from the date the employee was last exposed to the work condition causing the disease, whichever is sooner. (Certain diseases, such
as asbestosis, byssinosis, silicosis and coal workers' pneumoconiosis have different limitation periods.)
If after returning to work, you are again disabled, you must file a claim within two years of the date for which you were last paid compensation under an award. (This is called a "change in condition.") Payment only goes back 90 days from the date of filing with the Commission. Even if the employer has paid lost wages or provided medical care, it is still the employee's responsibility to file a claim with the Commission. If no claim is filed with the Commission or no award entered, the employer may stop paying medical expenses or wage loss at any time.
The employer or carrier may get information from the employee to send to the Commission, but this is not the filing of the employee's claim. The employee must file a claim even if the employer filed reports with the Commission.
BENEFITS UNDER THE ACT:
The employer must pay the following benefits under the Act:
1. Wage Replacement (Temporary total or partial)
While temporarily unable to perform any work, an employee is entitled to 2/3 of his or her gross average weekly wage up to a set maximum weekly limit. There must be seven (7) days of disability before benefits are payable. However, if disabled for more than three weeks, the employee receives payment for the first seven days. Benefits cannot exceed 500 weeks unless the person is totally and permanently disabled.
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 temporary partial 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 employee must select a doctor from a panel of three physicians provided by the employer/carrier. If a panel is not offered after notice of the accident, the employee may seek treatment from any physician. 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.
3. Permanent Partial Impairment
Separate benefits are payable for the permanent loss of use of a body part such as an arm, leg, finger, or eye. Vision and hearing loss, as well as disfigurement may also be compensated. This does not include the back, neck or body as a whole. Benefits are for a specific number of weeks depending on the percentage of loss. The employee can receive these benefits while working if maximum medical improvement has been reached.
4. Permanent and Total Disability
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.
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.
Death benefits include funeral expenses not to exceed $10,000 and transportation cost of $1,000.
6. Cost of Living Increase
A person receiving temporary total, permanent total or death benefits is entitled to cost of living increases effective October 1 of each year if the date of the accident is prior to July 1 of that year and if the combination of compensation and Social Security benefits are less than 80% of the pre-injury earnings. Cost of living increases must be specifically requested by the employee.
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. You must accept all suitable positions offered, or risk suspension of benefits.
Where appropriate, an employee may be entitled to retraining.
PROCEDURE IF CLAIM IS DENIED BY EMPLOYER:
The Workers' Compensation Commission makes the final decision whether the employer must pay for the injury or disease.
If the employer/carrier denies the claim or refuses to make certain payments, this does not mean you are not entitled to benefits. It only means that the benefits will not be voluntarily paid. The employee should then send a written request for a hearing to the Commission.
At the hearing, the employee must prove through testimony, witnesses and medical reports, that the injury or disease and disability were caused by the work. If the employee was released to light work, then the employee must submit evidence that he/she has actively sought work. This includes seeking employment at the pre-injury employer, registering with the Virginia Employment Commission and listing dates and places where applications for work were made.
The employee is entitled to have a lawyer at the hearing at his/her own expense. All attorneys' fees are subject to approval by the commission.
REQUEST FOR REVIEW
If you disagree with the written hearing opinion, you must notify the Commission in writing within 20 days after receipt of notice of such award that you are requesting a review of the decision.
RESPONSIBILITIES OF AN INJURED EMPLOYEE:
1. Give notice to the employer as soon as possible.
2. File a claim with the Workers' Compensation Commission within two years from 1) the date of the accident or 2) the date the doctor diagnoses an occupational disease.
3. Select a doctor from a panel of three provided by the employer/carrier. Do not change doctors without employer/carrier permission or after a hearing by the Commission.
4. Seek and accept employment if released to light duty, and cooperate with "rehabilitation counselors."
End VWC Guide
INFORMATION FOR EMPLOYEES
If you have been injured at work, you should file a claim immediately.
TYPES OF INJURIES UNDER THE ACT:
Employees are entitled to receive compensation for an "injury by accident" or an "occupational disease."
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 are covered.)
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.
MINOR INJURIES:
If you suffered a minor injury at work, you should file a claim with the Commission within the time limits stated below if your injury requires additional medical treatment or results in time loss from work.
TIME LIMITS FOR FILING A CLAIM:
An employee must file a claim with the Workers' Compensation Commission within two years from the date of the accident or any right to benefits may be lost. Claims for an occupational disease must be filed within two years from the date the doctor tells the employee the disease is work related, or five years from the date the employee was last exposed to the work condition causing the disease, whichever is sooner. (Certain diseases, such
as asbestosis, byssinosis, silicosis and coal workers' pneumoconiosis have different limitation periods.)
If after returning to work, you are again disabled, you must file a claim within two years of the date for which you were last paid compensation under an award. (This is called a "change in condition.") Payment only goes back 90 days from the date of filing with the Commission. Even if the employer has paid lost wages or provided medical care, it is still the employee's responsibility to file a claim with the Commission. If no claim is filed with the Commission or no award entered, the employer may stop paying medical expenses or wage loss at any time.
The employer or carrier may get information from the employee to send to the Commission, but this is not the filing of the employee's claim. The employee must file a claim even if the employer filed reports with the Commission.
BENEFITS UNDER THE ACT:
The employer must pay the following benefits under the Act:
1. Wage Replacement (Temporary total or partial)
While temporarily unable to perform any work, an employee is entitled to 2/3 of his or her gross average weekly wage up to a set maximum weekly limit. There must be seven (7) days of disability before benefits are payable. However, if disabled for more than three weeks, the employee receives payment for the first seven days. Benefits cannot exceed 500 weeks unless the person is totally and permanently disabled.
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 temporary partial 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 employee must select a doctor from a panel of three physicians provided by the employer/carrier. If a panel is not offered after notice of the accident, the employee may seek treatment from any physician. 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.
3. Permanent Partial Impairment
Separate benefits are payable for the permanent loss of use of a body part such as an arm, leg, finger, or eye. Vision and hearing loss, as well as disfigurement may also be compensated. This does not include the back, neck or body as a whole. Benefits are for a specific number of weeks depending on the percentage of loss. The employee can receive these benefits while working if maximum medical improvement has been reached.
4. Permanent and Total Disability
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.
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.
Death benefits include funeral expenses not to exceed $10,000 and transportation cost of $1,000.
6. Cost of Living Increase
A person receiving temporary total, permanent total or death benefits is entitled to cost of living increases effective October 1 of each year if the date of the accident is prior to July 1 of that year and if the combination of compensation and Social Security benefits are less than 80% of the pre-injury earnings. Cost of living increases must be specifically requested by the employee.
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. You must accept all suitable positions offered, or risk suspension of benefits.
Where appropriate, an employee may be entitled to retraining.
PROCEDURE IF CLAIM IS DENIED BY EMPLOYER:
The Workers' Compensation Commission makes the final decision whether the employer must pay for the injury or disease.
If the employer/carrier denies the claim or refuses to make certain payments, this does not mean you are not entitled to benefits. It only means that the benefits will not be voluntarily paid. The employee should then send a written request for a hearing to the Commission.
At the hearing, the employee must prove through testimony, witnesses and medical reports, that the injury or disease and disability were caused by the work. If the employee was released to light work, then the employee must submit evidence that he/she has actively sought work. This includes seeking employment at the pre-injury employer, registering with the Virginia Employment Commission and listing dates and places where applications for work were made.
The employee is entitled to have a lawyer at the hearing at his/her own expense. All attorneys' fees are subject to approval by the commission.
REQUEST FOR REVIEW
If you disagree with the written hearing opinion, you must notify the Commission in writing within 20 days after receipt of notice of such award that you are requesting a review of the decision.
RESPONSIBILITIES OF AN INJURED EMPLOYEE:
1. Give notice to the employer as soon as possible.
2. File a claim with the Workers' Compensation Commission within two years from 1) the date of the accident or 2) the date the doctor diagnoses an occupational disease.
3. Select a doctor from a panel of three provided by the employer/carrier. Do not change doctors without employer/carrier permission or after a hearing by the Commission.
4. Seek and accept employment if released to light duty, and cooperate with "rehabilitation counselors."
End VWC Guide
Why Are Workers' Comp Benefits Limited?
Prior to the enactment of workers’ compensation laws by the states, around the turn of the 20th century, an injured worker had to prove his or her injury was caused by the employer having an unsafe work environment. In addition, the injured worker had to prove in Virginia that he or she had essentially no fault at all in the accident in order to get any recovery. If the injured worker could prove these things, then he or she could get a full recovery of “damages,” just as in any personal injury case. Unfortunately, many workers were not able to be successful in recovering any “damages” despite the fact that there was no question that they were injured at work doing the job the employer instructed them to do. Lawmakers ultimately realized the unfairness of the system and wanted to shift the essential financial responsibility for work injuries onto employers -- thereby making injuries a cost of doing business.
Workers' Compensation laws have attempted to ensure that workers injured on the job get a basic set of benefits regardless of who was at fault generally. Indeed, the accident can be entirely the employee’s fault or simply nobody's fault, but the employee will still normally be entitled to the same set of benefits as if the employer were entirely at fault. In exchange for this largely “no fault” system, the law protects the employer from being sued over injuries caused by the employers’ negligence. (Normally, the only remedy is through the workers' compensation laws). Moreover, the benefits are more limited than in a traditional personal injury case – most notably, an injured worker gets No Recovery For Pain and Suffering.
There are a few specific types of employers that are still not required to have workers’ compensation insurance, and no employer is required to have it if the business is run with fewer than three or more “regular” employees. If an employer is not required to have workers' compensation insurance, then an injured worker will need to pursue a traditional personal injury case through the regular court system in order to recover any damages. If an employer who was required to have insurance fails to get insurance, then the workers’ compensation benefits for an injured worker will still be awarded by the Commission, but they will be paid out of an uninsured fund (reimbursement to the fund will then be sought from the uninsured employer).
Workers' Compensation laws have attempted to ensure that workers injured on the job get a basic set of benefits regardless of who was at fault generally. Indeed, the accident can be entirely the employee’s fault or simply nobody's fault, but the employee will still normally be entitled to the same set of benefits as if the employer were entirely at fault. In exchange for this largely “no fault” system, the law protects the employer from being sued over injuries caused by the employers’ negligence. (Normally, the only remedy is through the workers' compensation laws). Moreover, the benefits are more limited than in a traditional personal injury case – most notably, an injured worker gets No Recovery For Pain and Suffering.
There are a few specific types of employers that are still not required to have workers’ compensation insurance, and no employer is required to have it if the business is run with fewer than three or more “regular” employees. If an employer is not required to have workers' compensation insurance, then an injured worker will need to pursue a traditional personal injury case through the regular court system in order to recover any damages. If an employer who was required to have insurance fails to get insurance, then the workers’ compensation benefits for an injured worker will still be awarded by the Commission, but they will be paid out of an uninsured fund (reimbursement to the fund will then be sought from the uninsured employer).