Although it is called the Workers’ Compensation Act, in Virginia it is heavily weighted to protect the interests of the employer and the insurance company. In the 1950 Virginia consciously decided, in order to attract business and industry into the Commonwealth, it would make its workers compensation laws, rules and process more favorable for the employer. It has worked. Today Virginia’s Workers’ Compensation Act is used by the insurance industry as a model to which all states should aspire.
If you are injured on the job you should contact an attorney who is knowledgeable and experienced in workers’ compensation law. It is a highly specialized area of the law and very few lawyers are qualified to represent injured workers. The attorneys at HammondTownsend are so qualified.
Injury
In Virginia you must be injured doing a specific act such as lifting, falling or being hit. Injuries which occur from working over a period of time are usually not covered. These are often referred to as gradual, cumulative or repetitive injuries. Virginia is one of only a handful of states which do not allow these types of injuries.
The act which causes your injury must arise out of and in the course of your employment. That means that not only must it occur on the job, but the job must contribute to the act. Simply bending over and hurting your back is usually not compensable. People bend over all the time outside of work; so it is not an act which is a risk of the employment. However, if you have something in your hands when you bend or twist, it usually is compensable.
Notice
You are required to give notice of your injury/accident within thirty days unless there is a justified reason for not doing so. The most common such reason is a belief that the injury was minor and would simply go away.
Medical treatment
When you report your injury to your employer, they should give you a panel of three or more physicians with whom you may treat. If your employer does not offer you this panel, you may treat with whomever you desire. If your employer denies your claim, you may treat with whomever you desire. Once you have established a course of treatment with a physician, that physician is the treating physician regardless of whether a panel is subsequently offered. If you are offered a panel, but choose to treat with a physician not on the panel, your employer will not responsible for payment of that treatment. However, that physician’s opinion as to whether you can work is still valid. Once an authorized treating physician is established all reasonable and necessary treatment related to your work accident from that physician, and all referrals, will be the responsibility of your employer.
Filing a claim
You must file a claim for your workers’ compensation benefits with the Virginia Workers’ Compensation Commission within two years of your accident. This is required even if you are being paid lost wage benefits and your medical treatment is being paid. Many injured workers have lost their benefits because they failed to do so. You may file in electronically on line at the Virginia Workers’ Compensation Commission’s web site, Virginia Workers’ Compensation Commission or by mailing a claim form to its office at 1000 DMV Drive Richmond, Virginia 23220.
You may use a pre-printed claim form or simply write a letter asking for the benefits for which you are seeking. The date of filing is the date it is received at the Commission or the date it is mailed certified.
Lost wages
If your physician removes you from work because of your work accident, you may be entitled to lost wage benefits. You do not get paid for the first seven days of disability until you have missed twenty-one days. You should start to receive lost wage benefits on the eighth day. Every day, weekends, off days and holidays, all count during this period.
The amount you receive each week is determined by your pre-injury average weekly wage. If you have been employed with your employer for more than a year, the most recent fifty-two weeks are averaged. If you have been employed for less than one year, your total earnings are averaged using the number of weeks worked. If you have worked for your employer for a really short period, the wages of similar employees may be used to determine your pre-injury average weekly wage. While the cost of health benefits paid by your employer is not included in your pre-injury average weekly wage, other benefits maybe. If your employer provides housing to you, the cost of such can be included.
Your compensation rate is two-thirds or .6667% of your pre-injury average weekly wage. There are minimum and maximum compensation rates which change every year.
Light duty
If your physician releases you to return to work with restrictions and your employer is able to accommodate the restrictions, you must return or lose your benefits. Usually your physician must sign off on the light duty job description. It is wise to always have a copy of your work restrictions with you in case someone asks or directs you to perform a task which violates your restrictions. If during this light duty employment you are earning less on a weekly basis, you are entitled to partial wage loss benefits. Your employer must pay two thirds of the difference between your pre-injury and post-injury average weekly wages.