Giving a Voice to the Injured

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.

  • Where can I get a workers' compensation claim form so I can file it with the Virginia Workers' Compensation Commission?
    Send us an e-mail, and we would be happy to send you the claim form. You can also download claim forms from the Virginia Workers' Compensation Commission website.
  • 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.
  • 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 treatment?

    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.
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