Workers' Comp FAQ
A Virginia Workers' Compensation Attorney Answers Common Questions
If you were injured while working, you are probably feeling overwhelmed
about your situation. At The Barrera Law Firm, PLLC, we strive to make
the workers' compensation process as easy as possible. To help you
make smart decisions regarding your case, our Virginia workers' compensation
lawyer has collected some of the most commonly asked questions about workers'
compensation. You don't have to face this stressful situation alone.
Do you have further questions? Get more information by requesting a
free case evaluation.
How long do I have to file a Virginia workers' compensation claim?
Generally, you have two years to file a claim. There are circumstances
where the statute of limitations might be extended, in which case, you
had better speak with an experienced workers' compensation lawyer.
Where can I get a workers' compensation claim form so I can file it with
the Virginia Workers' Compensation Commission?
My doctor has stated that I will be out of work for two months. How am
I supposed to makes ends meet?
Should your doctor state that you cannot work as a result of injuries suffered
in a work accident, you should be able to apply for, and receive wage
benefits for your "temporary total disability." Virginia's workers' compensation
laws allow for a payment of 66 2/3% of you average weekly wage based on
your earnings for the 52 weeks before the work accident. If you think
that you are not being paid at the correct compensation rate, it is highly
recommended that you speak with our firm as soon as possible.
Now that I'm disabled, how am I supposed to be able to afford hiring a lawyer?
In workers' compensation cases, all attorney fees are authorized by a Commissioner,
and are paid from your benefits. The maximum percentage a lawyer can receive
in a case of this type is 20%. The Virginia Workers' Compensation Commission
can and does order the payment of legal fees at lesser rates depending
on the case and circumstances. Generally, the payment of legal fees is
made directly to the lawyer from the workers' compensation insurance carrier.
I am afraid that if I file a workers' comp claim that I will be fired.
Must I file for workers' comp benefits?
You and your witnesses cannot be fired because you filed a workers' compensation
claim. If you feel that you might be fired, it is likely best that you
seek the assistance of a qualified workers' compensation lawyer before
you actually file the claim. If you have already been fired for filing
a claim, then you already need a lawyer.
Do I really need to hire a lawyer for my workers' compensation claim?
Here's what the Virginia Workers' Compensation Commission has to say about that:
You are not required to have a lawyer and can represent yourself. The employer
/ carrier must be represented by a lawyer. It is your decision whether
to hire an attorney. However,
you will be at a disadvantage without legal representation. Why anyone would want to enter a legal proceeding at a disadvantage does
not make a lot of sense. You are much better off hiring someone who knows
what he or she is doing. Protect your rights so you're not losing your
case just because you were unaware of a deadline or legal intricacy.
My workers' compensation case has been accepted. What should I do now?
If you haven't yet filed a claim, make sure you get a formal claim filed.
Make sure you follow your doctor's advice 100% and make sure your employer
knows what's happening. You have an affirmative obligation to let your
employer know of your injury immediately. Make sure you keep receipts
for all your out-of-pocket expenses, and keep records of your mileage
for submission to the insurance company. If the insurance company is asking
for recorded statement, you should consider hiring a lawyer.
When should I settle my workers' compensation claim?
There are a number of considerations which play a part in knowing when
to settle a workers' compensation claim. It is one of the best reasons
I know for hiring a lawyer. I usually suggest settling a claim as soon
as you have reached MMI (maximum medical improvement). MMI means there
will be no further recovery from your injuries. Once you have reached
MMI, and are at an end point in your treatment, you should be able to
obtain a rating of your permanent partial disability (PPD), and try to
settle your claim based on your rating. If your injury is such that there
is a high likelihood of serious future medical care, then you might very
well want to engage the services of professionals to evaluate the cost
of future care.
I was injured in an auto accident while I was a passenger in my supervisor's
car. My supervisor admits that the accident was 100% his fault. Can I
file a claim against him for his admitted negligence?
No. Workers' compensation is the sole remedy in this situation. Virginia's
workers' compensation laws prevent workers from suing their employers,
and also prevent injured workers from suing their fellow employees. They
also prevent injured workers from suing other businesses and their employees
who are in the same business, trade, or occupation as the injured worker.
I filed a claim on my own and now I have received a referral to the hearing
docket. What does this mean?
Simply put, it means you are going to court. The employer or the insurance
company has advised the Virginia Workers Compensation Commission that
some part of your claim has NOT been accepted. As a result, a Deputy Commissioner
of the Virginia Workers' Compensation Commission will be assigned to handle
the hearing. Your case will be set for a hearing in the near future. You
are at a terrible disadvantage should you try to handle the hearing on
your own. While the Deputy Commissioners will likely give you some leeway,
just because you are unrepresented, you will still be at a disadvantage
going forward. I strongly recommend that you hire a qualified lawyer to
represent you at the hearing.
I fractured my ankle at work and my employer knows I can't work. When can
I expect workers' compensation benefits to start?
There is no easy answer to this question because various problems could
arise while you are waiting for your benefits to start. Normally, it take
about two weeks for the wage benefit checks to get started. Under Virginia
workers' compensation law, you must be disabled for 7 days before you
qualify for any wage replacement benefits whatsoever. Wage benefits start
on the 8th day. If you are disabled for longer than 21 days, then the
workers' compensation insurance carrier is responsible for paying the
7 days of compensation.
Should I give the workers' compensation insurance company a recorded statement?
You should expect that everything you say in your recorded statement can
and will be used against you in a court of law. The reasons that cause
the workers' compensation insurance company to want to take your recorded
statement are that they either are thinking of denying your claim altogether,
or that they are investigating some defense to your claim. Do not think
for a minute that they are taking your recorded statement just because
they are "trying to help." You can expect for the adjuster to ask questions
regarding how the accident happened, your background information, work
history, and the status of your medical treatment. There is no good reason
for them to ask about anything else if they are really trying to help.
You can always terminate the recorded statement, and state that you're
going to hire a lawyer before you answer any more of their questions.
That would be a smart choice.
How long will my workers' compensation case take?
This is one of the most common questions asked by someone starting a workers
compensation case. I usually answer the question with a series of questions.
When are you going to finish your medical treatment? When will your doctor
say you've reached MMI? When are you going to return to work? How long
will you be receiving physical therapy or vocational rehabilitation? The
answer to any of these questions might give you some idea of how long
your case will take. Some cases are over in six months, others take years.
The major factor which will determine how long your case will take is
the severity of your injury. Generally the more serious the injury, the
longer the time needed to bring it to conclusion.
I notified my employer of my accident and injury. How do I get my medical
As an injured worker, you have certain responsibilities under the Virginia
Workers' Compensation Act. The same is true of your employer. After your
employer receives notice that you have been injured on the job, your employer
should give you a list of three doctors. You are required to select one
doctor from the list as your treating physician. If your employer fails
to provide you with a list of three physicians, you can select your own
doctor. Many times, employers will try to take the injured worker to a
clinic, or worse "the company doctor." If you need emergency care, go
to an emergency room.
Assuming that your workers' comp claim is accepted, or held compensable,
your employer will be obligated to pay 100% of the cost of your reasonable
and necessary medical treatment. It is your responsibility under the Virginia
Workers' Compensation Act to fully cooperate with your medical treatment,
which includes attending doctor visits and following your treating physician's
advice. Your workers' compensation benefits can be suspended should you
fail to fully cooperate with your medical treatment.
What benefits are available to an injured worker in Virginia?
As an injured worker, you are entitled to the following:
Medical benefits - You are entitled to payment of all your medical expenses including mileage,
translation, home health care, transportation, and durable medical supplies.
This may also include reasonable and necessary modifications to your home
to accommodate your disability subject to the statutory maximums. You
are entitled to a lifetime award of all reasonable and necessary medical
expenses caused by your work injury.
Temporary total disability - You may receive 66 2/3% of your average weekly wage calculated by averaging
your wages over the 52 weeks before your work accident. There are statutory
maximum limits to this benefit.
Temporary partial disability - In the event you return to work earning less or working fewer hours,
you are entitled to 66 2/3% of the difference between your pre-accident
and post-accident wages.
Permanent partial disability - Once your treating physician is able to state that you have reached
maximum medical improvement, your doctor may be able to provide you with
a disability rating to your affected body part. Depending on which part
of your body was injured in the accident, you can calculate the value
of your disability under the Virginia Workers' Compensation Act.
Permanent total disability - The Virginia Workers' Compensation Act provides for a maximum of 500
weeks of compensation. Should you be completely disabled, you may qualify
for permanent total disability which provides compensation for life.
Vocational rehabilitation - In the event that you cannot return to your pre-injury employment, your
employer is responsible to provide you with vocational rehabilitation
so you can be re-trained or assisted in finding a job within your limitations.
Am I entitled to an award of my pain and suffering in my workers' comp claim?
There is no provision for pain and suffering under the Virginia Workers'
Compensation Statute. There is a right to an award of your permanent partial
disability should you be permanently disabled as a result of your work
accident. If lingering pain is a large component of your permanent complaints,
you should consult our experienced Virginia workers compensation lawyer.
What is an independent medical exam?
An independent medical exam is an examination by an insurance company doctor.
It should be called a defense medical exam as there is nothing independent
about it. An exam is requested so that the "independent" doctor can state
that you were not hurt, or that you are completely healed, or that you
can return to work without restrictions, or that your condition or impairment
has no relationship to your work injury. The insurance company's idea
is to either deny your claim, or to try to pay the least possible. The
Virginia Workers' Compensation Act provides a right for the insurance
company to obtain one independent medical exam per year per specialty.
Should the insurance company be requesting that you attend such an examination,
you should contact our firm as soon as possible.
What should I do now that the insurance company has hired a nurse case manager?
Nurse case managers are brought into Virginia workers' compensation claims
in order to provide eyes and ears for the insurance company at the injured
worker's medical appointments. The key points to keep in mind is that
the nurse case manager has no right to be present during your appointment
with the doctor. If you ask the nurse case manager to leave the examination
room, they are obligated to leave. If the nurse case manager wants to
speak with the doctor, then that can be done at some other time, but not
during your time with your doctor. Your doctor should conduct all conversations
with the nurse case manager in your presence and you have the right to
ask that this happens. If there are problems with the nurse case manager
it is best to exclude them from the examination room and advise your doctor,
and lawyer about the problems you are having. By having a nurse case manager
involved in the case, the insurance company feels that it can advance
the return to work date, and thereby save money. Aside from any money
savings, it is imperative that you get sufficient time to heal, and your
doctor can provide you with the necessary disability slips in that regard.
When should I consider hiring a workers' compensation attorney?
Many people decide to hire a lawyer only when they can't handle it anymore.
They seek the help of a lawyer when they are up against some deadline,
hearing date, or when events spin out of control. Unfortunately, many
lawyers won't handle these cases as they are too time consuming and usually
filled with problems. When the question arises as to when someone should
hire a lawyer, in my opinion, a lawyer should be hired as soon as possible.
There is no good reason to wait to hire a lawyer.
What documents should I assemble before meeting with a lawyer?
You should try to put together anything and everything relating to your
employment, and your work injury. This includes information such as your
salary, when the accident happened, names of co-workers, health insurance
information, hospital discharge papers, medication receipts, and any correspondence
from the insurance carrier or your employer. Present all these documents
to your lawyer and let him or her sort through what you have and determine
what is, and what is not relevant.
Can I get a second opinion?
There are times when getting a second opinion is a good idea. Should you
doctor recommend a surgery, and you have doubts about whether it is a
good idea, it might be good time to see another doctor. Generally, you
can get a second opinion if an invasive treatment is offered, or if your
doctor is not wholeheartedly recommending the treatment. Under the Virginia
Workers' Compensation Act, any second opinion would have to be authorized
by the workers' compensation insurance carrier. A second opinion can be
obtained by having your doctor recommend a specific doctor, or by having
the insurance carrier provide a panel of three physicians.
I am not happy with my present doctor. Can I change my treating physician?
Under Virginia law, once you have established a doctor-patient relationship,
you cannot change physicians. You might be able to get a second opinion,
but you will not be able to change physicians without the consent of the
workers' compensation insurance carrier.
Can I sue my employer while collecting workers' comp in Virginia?
If you are hurt at work, workers' compensation is generally your sole action
to recover compensation for injuries from your employer. If your employer
doesn't carry workers' comp insurance and / or if your employer is self-insured
but cannot satisfy an award, you can still file for benefits through the
Virginia Uninsured Employer's Fund. The Workers' Compensation Commission
may then refer the claim to the Attorney General to collect funds from
the employer. Meanwhile, the Virginia Supreme Court recently found that
a worker who is receiving workers' comp cannot file a suit against an
employer even if the employer didn't carry workers' compensation insurance.
The bottom line is that if you are receiving workers' comp, then you cannot
sue your employer. But there are circumstances under which workers may seek legal recourse
against a negligent third party in addition to receiving workers' compensation
benefits. To learn more about these kinds of circumstances, please do
not hesitate to turn to our firm for more information.
Have questions? Call The Barrera Law Firm, PLLC at (571) 290-2390.
If you would like to discuss a question or concern that was not addressed
call our firm
at your earliest convenience. We would be happy to provide you with the reliable information you need during a
complimentary consultation. Our ultimate goal is to help you receive the workers' comp benefits
you need in order to recover from your injuries.