Virginia’s Best Workers’ Compensation Guide
- I handle most Virginia Workers’ Comp cases on a contingency basis with NO RETAINER FEE.
- For a FREE EVALUATION of your case, call Gerald now at 804-335-0268 or submit the email form on the right.
- Reading this brochure is not a substitute for contacting an experienced Virginia Workers’ Compensation Attorney.
Frequently Asked Questions
What Should I Do when I Suffer an Injury at Work in Virginia?
What is a Workers’ Compensation Accident?
What is an Occupational Disease?
What Benefits am I Entitled to when I Am Injured?
What is a Claim and When must it be Filed?
What if I can do Light Duty Work?
What if I Refused/Was Fired from a Light Duty Job?
What if I Have a Dispute with the Insurer and it Is Set for a Hearing?
What if the Insurer Wants to Settle my Claim?
What Is the Role of the Nurse Case Manager and/or Vocational Rehab Worker?
Why Should I Choose the Law Firm of Gerald G. Lutkenhaus?
- Notify your employer of the injury and fill out any forms.
Insurance companies often deny claims if accidents are not reported right away.
- Request a panel of three (3) doctors.
Virginia law requires the employer to furnish you a panel of three (3) doctors but if you don’t ask for this within 30 days, you can lose this right. You should call an attorney before you make a choice because some doctors are more “claimant-friendly” than others.
- Talk to an attorney before giving a recorded statement.
The reason why the insurer is taking a recorded statement is because they are looking for any possible reason to deny your claim. The adjuster will try to trap you, so talk to an experienced Workers’ Compensation attorney first or it may be too late. Anything you say on the recorded statement can and will be used against you if the insurer decides to contest your case.
- A workers’ compensation accident is an injury at work caused by a “specific incident.” A common defense to a workers’ compensation claim is that the worker cannot identify the accident. For example, a worker lifts 100 boxes and has a back injury, but does not know which box caused his injury.
- An injury that occurs while the worker is violating a safety rule may not be compensable. The insurer will take a recorded statement to find out if any safety rules were violated.
- An injury that arises out of drunkenness or drugs may not be compensable.
This is why employers will require alcohol and drug tests after an injury.
- Injuries when the worker has a preexisting condition may not be compensable.
This is another reason why the claims adjuster I will take a recorded statement.
- A disease arising out of and in the course of employment.
It cannot be an ordinary disease of life to which the general public is exposed to outside of the employment.
- Factors that make a disease an occupational disease:
a) a direct causal connection to the employment
b) it is a natural consequence of the employment
c) it is proximately caused by the employment
d) it was not caused by exposure outside the employment and is not a condition of the neck or back
e) it is not independent of the employer-employee relationship
f) it has its origin in a risk of the employment
- An “ordinary disease of life” to which the general public is exposed to outside of the employment can be treated as an occupational disease if:
a) All of the “factors” listed above for an occupational disease are established by “clear and convincing evidence” and not a mere probability, AND
b) The ordinary disease of life does not result from causes outside of the employment, AND
c) ONE of the following exists:
– It follows from an occupational disease, OR
– It is an infectious or contagious disease contracted in the course of one’s employment in a hospital, sanitarium, laboratory or nursing home,
or while directly delivering medical care, or in the course of one’s employment as an emergency rescue personnel, OR
– It was characteristic of the employment and was caused by risks peculiar to the employment.
- What about Hearing Loss and Carpal Tunnel Syndrome?
Hearing Loss and Carpal Tunnel Syndrome are NOT occupational diseases in Virginia, but can be compensable “ordinary diseases of life” if the above criteria are met.
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- Compensation at two-thirds of your average gross wages for up to 500 weeks.
Insurance companies often make mistakes on this such as failing to include overtime, etc.
- Lifetime Medical Benefits.
Insurance companies will refuse to pay if the treatment is not medically necessary and is not with an authorized doctor.
- Compensation for the permanent loss of use of an arm, leg, hand, finger, etc.
Insurance companies will often try to send you to doctors who give low ratings.
- Annual Cost of Living Adjustment (COLA) if not receiving Social Security benefits.
COLA is cumulative and must be requested. For claimants with injuries before July 1, 2011, the COLA rate is 0.55% effective October 1, 2015.
More Annual COLA rates: /wp-content/uploads/sites/3136/2016/04/Min-Max-Benefits_11.pdf.
- Mileage to/from doctors and for job search trips.
You must request this from the Insurer. Mileage is reimbursed at the rate of 55.5 cents per mile effective October 1, 2011.
Prior to this date, the reimbursement rate was 50.5 cents per mile.
- Vocational Rehabilitation.
Whereas most workers hope this means retraining, most insurers look on it as simple job placement at dead end jobs.
- The worker is required to file a claim for the injury with the Virginia Workers’ Compensation (VWC) Commission.
This may not be necessary if the work comp insurance adjuster sends the injured worker a correct Award Agreement, the injured worker signs and returns it to the adjuster, the adjuster signs and files it with the VWC Commission, and the Commission enters an Award Order. However, if an Award is not entered, it is still the WORKER’S RESPONSIBILITY to file the claim usually within the 2-year statute of limitations. When you file a claim, list ALL body parts that were injured in the work accident and ask for all the relief you are requesting including Lifetime Medical Benefits and Compensation under Part B. You can file a Claim with the VWC Commission in-person, by mail, or online:
Virginia Workers’ Compensation Commission
1000 DMV Drive, Richmond, VA 23230
- In the case of a WORK INJURY, the claim must be filed with the Virginia Workers’ Compensation Commission within two (2) years of the date of the accident.
Even if the claim has been accepted by the insurer, the worker should still check to make sure the forms have been filed with the Commission and the worker must be careful all injuries are listed.
- In the case of an OCCUPATIONAL DISEASE, the claim must be filed within two (2) years of the date of diagnosis.
This is an area that can be confusing and an experienced Workers’ Compensation attorney needs to be consulted.
- If your treating doctor releases you for light duty work, you may still be eligible for compensation if your employer does not provide light duty work.
You may have to look for light duty work on your own. You should consult an attorney about this.
- If the light duty work pays less, then you may be eligible for compensation for two-thirds of the difference between the 2 salaries.
You may need to talk to a lawyer about this.
- Refusal of a light duty job can result in a suspension of benefits.
A worker only has six (6) months to cure a refusal of a light duty job.
- If the worker is fired for misconduct from a light duty job, then this can mean a permanent loss of compensation.
It is essential for a worker to consult an attorney about this type of situation.
- The insurance company will be represented by an attorney, so you will be at a great disadvantage if you try to represent yourself. The hearing will be before a Deputy Commissioner, and he will have to follow Rules of Evidence, which can be technical.
- The hearing is your only chance to present evidence.
The injured worker can usually appeal an adverse hearing decision to the Full Commission within 30 days, but the hearing is your only chance to present evidence to win your case.
- You should never take the risk of going to the hearing without an experienced Workers’ Compensation attorney.
You cannot present evidence in the appeal proceeding, so you must make sure you gather all your evidence before the hearing.
- A settlement of a workers’ compensation claim usually means a LOSS OF ALL FUTURE RIGHTS. Workers rarely know the true value of their claim and therefore they should never settle a claim without seeing an experienced Workers’ Compensation attorney. Sometimes the employer requires a resignation agreement, meaning the claimant can never work for that employer again.
- Settlement of a workers’ compensation claim can have an adverse effect on other benefit claims such as Social Security.
Gerald G. Lutkenhaus is experienced in both Workers’ Compensation and Social Security Disability. He can properly advise you about this matter.
- Even though you have a financial emergency, you should not settle without knowing the real value of your claim.
Do you have other means of medical care coverage after a work comp settlement? Contact Gerald G. Lutkenhaus for a free initial consultation before taking such a step.
- The insurer will often assign a nurse case manager to ensure the worker receives his/her medical care and returns to work quickly.
- The insurer will assign a vocational rehabilitation worker to ensure the worker quickly returns to some form of light duty work.
- If the worker has not been released to any form of light duty work, the vocational rehab worker will often attempt to obtain a light duty release from the doctor in order to start job placement.
You do have the right to have private treatment from your doctor. You need not allow the rehab worker to be present, but you should demand to be present when the rehab worker talks to your doctor.
- Your failure to cooperate with the nurse case manager or the vocational rehab worker can result in a suspension of compensation.
If this happens, call an experienced Workers’ Compensation attorney.
- If the vocational rehab worker finds a light duty job for you, the general rule is you must accept the light duty job.
If you do not like the job (due to the hours, type of job, commuting distance, etc.), call an experienced Workers’ Compensation attorney.
- You need to be careful about signing authorizations for the nurse case or the vocational rehab worker.
If you sign these authorizations, the nurse or worker may go behind your back and talk to your doctor without your knowledge.
- Gerald G. Lutkenhaus has over 35 years experience representing injured workers
He received the highest lawyer rating of “AV” by Martindale-Hubbell from 2005 to 2016. He has litigated Virginia Workers Compensation claims in the Commission, the Court of Appeals, and the Virginia Supreme Court.
- Gerald G. Lutkenhaus was recognized as one of the Best Attorneys Doing Workers’ Compensation in Virginia
in a survey of 2,000 attorneys in the July 1999 issue of Richmond Magazine.
- The Bar Register of Preeminent Attorneys invited Gerald G. Lutkenhaus to be in their publication from 2005 to 2009.
He is also a member of the Virginia Trial Lawyers Committee on Workers’ Compensation and has lectured on workers’ compensation topics before many groups.
This may be considered an ADVERTISEMENT or advertising material under the Rules of Professional Conduct governing lawyers in Virginia. The information presented is designed for general information only. It should not be construed as formal legal advice nor a formation of a lawyer-client relationship.
Gerald G. Lutkenhaus has been a practitioner of Virginia Workers’ Compensation law in the Richmond area for over 35 years. He has Martindale-Hubbell’s highest rating from 2003 to 2014. LexisNexis listed him in the Bar Register of Preeminent Attorneys in 2005, 2007, and 2009. You may call the GGL Law Firm at (804) 335-0268 for more information.