Virginia Workers’ Compensation Articles

Can an Illegal Alien get Work Comp in Virginia?
Ten Mistakes to Avoid in a Claim
Why is a Work Comp lawyer necessary?
Appeal after a Claim Denial
How to put a Value on Your Claim
Six Mistakes to Avoid in a Deposition
Top Six Hearing Mistakes by Claimants without Lawyers
Fifteen Social Security Tips for Work Comp Lawyers
Ten Work Injuries Resulting in Work Comp Claims
Five Tips if You are Fired after a Work Injury
Click to read more of Gerald’s Virginia workers’ compensation articles on Ezine.


The state of Virginia has decided to provide partial benefits to illegal aliens when they get injured.

The illegal alien has a problem when he is injured: his employment contract is illegal.

A few years ago the Virginia Supreme Court said an illegal alien could not receive any workers compensation benefits when he was injured. This court ruling created a different problem:

if illegal aliens could not recover workers compensation benefits, then they could sue their employers for their injuries.

The business interests in Virginia decided they would rather provide partial workers compensation then be open to lawsuits from aliens. The state of Virginia decided in light of this problem to provide partial workers compensation benefits to illegal aliens.

An illegal alien in injured on the job in Virginia can obtain medical benefits but only obtain compensation if TOTALLY disabled. The illegal alien cannot receive any compensation once released to any form of light duty work. The rationale is that the illegal alien cannot work legally in Virginia, so no light duty work can be offered to the alien. By providing partial compensation remedies to aliens, employers in Virginia are protected from job injury lawsuits by illegal aliens.

In summary, yes, the alien can receive some benefits in Virginia but does not receive the full range of compensation benefits available to a citizen.
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I have been practicing Virginia Workers’ Compensation law for over 35 yearsand these are the mistakes I see claimants repeat again and again, often resulting in a denial of their claim.

  1. Failing to report an injury right away. Many claimants think the injury is minor, they will get better, or they don’t want to be fired. However, many employers have a policy that requires the employee to report an injury to a superior within 24 hours. If a claimant violates this policy, the employer will usually deny the claim. Also, the Virginia Workers’ Compensation Law requires reporting an accident to the employer within 30 days of the accident.
  2. Delaying going to a doctor. This can be a big mistake because most employers only acknowledge an injury if the claimant goes to a doctor. Moreover, the longer one waits to go to a doctor, the more difficult it can be for the doctor to link the impairment to the accident.
  3. Giving a recorded statement about the accident to the adjuster without legal advice. If there is a problem with the claim, the adjuster will use the recorded statement to pin down the claimant’s version of the story without the claimant knowing he or she even has a problem.
  4. Switching doctors. The law requires the employer or its insurer to provide a panel of three doctors to the claimant. Once the claimant chooses one, this is the authorized treating doctor for the claim. It is then very difficult to switch doctors. Also, if a claimant moves out of Virginia, it may be hard to find a doctor who will accept patients with out-of-state Workers’ Compensation insurance.
  5. Settling without knowing the real value of the claim. Every claim has the potential for lifetime medical coverage and 500 weeks of compensation in Virginia. The claimant needs to speak to a knowledgeable Virginia Workers’ Compensation attorney before settling any claim.
  6. Going to a hearing without an attorney.  The insurance company will always be represented by an attorney. Technicalities may cause them to lose their claim. Many think if they lose, they can always appeal and then obtain an attorney, but this violates the old saying, “he who represents himself has a fool for an attorney.” Mistakes made at the hearing can rarely be corrected on appeal because no new evidence is allowed on appeal.
  7. Thinking the insurance claims adjuster, vocational rehabilitation specialist, or nurse case manager is working for the claimant. These people are hired by the insurance company, and any confidences a claimant volunteers can be used against them.
  8. Even if the insurance adjuster accepts the claim, the claimant has to be careful. The adjuster may send the claimant an Agreement to Pay Benefits Form. The claimant has to check to make sure the Average Weekly Wage is calculated correctly, and ALL the injuries suffered in the accident are recorded on the agreement form. For example, often an arm or shoulder injury masks an underlying neck injury. If the neck injury is not added to the claim within two years of the accident, then it can be lost even if the doctor is treating the neck injury.
  9. The insurer may continue to investigate a claim even after the claim has been accepted.  Especially if the claimant is on compensation for “chronic pain,” the insurer will often hire a private investigator to secretly videotape the claimant violating the doctor’s restrictions, hoping to show the claimant doing activities demonstrating s/he is not disabled.
  10. Once released to light duty work, the insurer will attempt to place the claimant in a light duty job. The insurer will first try to place the claimant back with the original employer. If the original employer cannot provide a light duty job within the doctor’s restrictions, the insurer will hire a vocational rehabilitation specialist to place the claimant in alternative light duty work. Many claimants do not realize they have to be available from 9am to 5pm five days per week to do job searches with the vocational specialist. Missed appointments or any failure to cooperate may result in a suspension of compensation.In Summary, many of the mistakes listed above can be avoided if the claimant immediately consults a Virginia Workers’ Compensation attorney. If an attorney has been rated “AV” by Martindale-Hubbell, you can feel confident you have a representative who has been rated best in his field.

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A Virginia Workers Compensation case may often require you to seek legal advice.

In my 35 years of experience as a lawyer, the following is some of those reasons.

  1. Accident:  A good lawyer can tell you if what happened to you constitutes a compensable accident under Virginia law. For example, repetitive lifting is NOT a compensable accident under Virginia law.
  2. Disease:  If you have an occupational disease, the lawyer can tell you prove it is compensable under Virginia law. For example, Carpal Tunnel Syndrome MAY be compensable under Virginia law, but you have to overcome a number of evidentiary hurdles.
  3. Doctor:The insurer wants you to go to see its doctor. The lawyer will advise you about this and the THREE doctor panel rule in Virginia.
  4. Recorded Statement:  The adjuster will want to take your recorded statement of the accident. The lawyer can advise you on this.
  5. Denied:  It is essential that you obtain a lawyer as soon as possible. Waiting is a big mistake.  The lawyer may have to do discovery to find out why the claim was denied and what evidence is necessary for a winning case.
  6. Hearing:  There is a dispute and now the Commission has scheduled your case for a hearing.  There are timelines for discovery as indicated in #5. Waiting until a few days before the hearing to hire an attorney is not a good idea.
  7. Retainer Fee:  Instead of charging a retainer fee, the lawyer may be willing to take your case on a contingency fee basis, meaning a certain percentage of any benefits recovered.
  8. Personal Injury:  If your Workers’ Comp case also involves a personal injury case, a lawyer is necessary to sort this out and obtain the maximum benefit for you under both claims.
  9. Appeal:  You failed to get an attorney and you lost your case.  Immediately have an attorney review the decision.  You may be able to retrieve something in the appeal.
  10. Settlement: I just want to settle my case and I don’t want to pay an attorney.  Why should I get one?  The biggest problems are:
  • You don’t know the value of your claim.
  • You don’t know if there are serious issues with your claim.
  • You don’t know if the insurance company can defeat your claim.
  • You may want a million dollars for your injury, but is this achievable?
  • You may be able to negotiate a reasonable fee with the lawyer.

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For over 30 years I have been representing claimants before the Virginia Workers Compensation Commission. Often, I have been asked to review adverse decisions by the Commission for a possible appeal. More likely than not, I have to decline representation. These are the reasons why:

  1. The Claim for Benefits:  When there is an injury at work, the claimant is required to file a Claim for Benefits with the Commission.  The Commission will issue a 20 day Order to the insurance company requesting a response.  If the claim is denied, it will be scheduled for a hearing before a deputy commissioner.
  2. Evidence:  The Commission issues an instruction requesting the claimant to file all of his/her evidence that supports the claim with the Commission. This usually means ALL medical evidence has to be filed with the Commission prior to the hearing.
  3. Discovery: Prior to the hearing, each side is allowed, under the Commission Rules, to discover everything that party wants to know about the other side’s case.  This is usually done by written questions called interrogatories and by depositions.  A deposition is testimony under oath in front of a court reporter prior to the actual hearing about the case.  The deposition allows either side to know exactly what a witness will be testifying to before trial.
  4. Medical Evidence:  Most of the time doctors do not go to the hearing.  The Commission allows medical evidence to be filed by written reports.  If there still is a question about the medical evidence, either party can take a doctor’s deposition and file that deposition as the doctor’s evidence in the case.  The main reason doctors do not go to the hearing is the expense.
  5. Hearing: At the hearing, no argument is allowed.  The hearing is just for the purpose of submitting evidence.  As indicated above, the medical evidence is submitted by written reports.  The claimant and his witnesses testify under oath and the insurance company will have its witnesses testify under oath.
  6. The Decision:  The hearing commissioner will issue his/her decision in writing some time after the hearing based on the medical records and the testimony at the hearing.
  7. Appeal:  If either side disagrees with the decision, there is a right of appeal to have the hearing commissioner’s decision reviewed by three (3) commissioners.  But on the appeal, no NEW evidence is allowed.  The appeal only considers the evidence that was submitted to the hearing commissioner.
  8. Standard for Review of Appeals:  On appeal, there are some standards the Commission has adopted over the years.  One critical standard is that the three (3) commissioners will almost never second-guess the hearing commissioner on credibility decisions.  This is so because the hearing commissioner is the only one who actually hears live testimony and is able to consider the demeanor of the witnesses.  Another critical standard is that the claimant has the burden of proof.  This means the claimant has to prove at least by a preponderance of the evidence (at least 51%) that he/she should win.  If the evidence is not there or incomplete, the claimant loses.
  9. My Review:  Thus, if the claimant comes to me with an adverse decision based on credibility, I have to tell the claimant I decline representation due to the above Standard of Review.  Also, if the claimant loses because the evidence is incomplete, I also have to decline representation because evidence cannot be added to the case on appeal.
  10. Representation:  The biggest mistake claimants make is to do the hearing themselves without experienced representation hoping to correct any errors by an appeal.  As Abraham Lincoln once said, “he who represents himself has a fool for an attorney.”  There is just no substitute for not obtaining representation when your claim has been denied and a hearing is necessary.  This is my advice: after an insurance company denies the claim, you should call an experienced Workers’ Compensation Lawyer right away.

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You are hurt at work and you are unable to return to that job due to the injury.  The insurance company contacts you and wants to “settle” your claim.  Wonder what a reasonable value is for your claim?  These are some of the factors you need to consider in Virginia.  Other states will differ since each state has a slightly different compensation system.

If your claim has been accepted by the insurance company, you should be receiving weekly compensation benefits and medical coverage.  In Virginia the maximum compensation you can receive as of July 1, 2011 is $905.00 per week.  Your individual compensation rate would be two-thirds of your average weekly salary not to exceed $905.00 per week.  Thus, if you are making only $1,000.00 a week, your compensation rate would only be $666.67 per week.  VWC Chronological Compensation Benefits Chart

In Virginia if you are under an open Award and you are unable to return to work, then in you could receive weekly compensation for up to 500 weeks.  In certain rare instances such as a brain injury or the loss of two extremities, you can receive lifetime compensation benefits.

However, if you are unable to return to your pre-injury job but can do light duty work, the insurance company will make a strenuous effort to place you in some form of light duty employment.  If the placement is successful, then the insurance company can reduce the compensation it is paying you due to the fact you are receiving a light duty salary.  Of course, if the light duty salary equals or exceeds your pre-injury salary, then the insurance company no longer has to pay weekly compensation.

Virginia will provide compensation for a permanent injury to an extremity or hearing or vision.  However, you cannot receive this type of compensation if you are still out completely on weekly compensation benefits.  Very importantly there may be a need for future prescriptions, doctor’s visits, additional medical operations, etc.  Since a Virginia award means you have lifetime coverage for this injury, the costs of future medical care may well exceed the costs of weekly compensation payments.

With the above in mind, then the value of the claim is determined by:

  • The salary and compensation rate
  • The number of weeks of potential compensation remaining
  • The inability to return to any form of work
  • The ability to return to some form of light duty work and the availability of such work
  • If there is a return to light duty work, the payment rate of such light duty work
  • Permanent injuries to any extremity or hearing or vision
  • The projection of future medical bills

The valuation can be complex and it is advisable that a claimant seek the advice of an experienced Workers’ Compensation attorney regarding a proper valuation before you reach that final settlement with the insurance company.

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The insurance company lawyer is taking your deposition because you filed a Virginia Workers’ Compensation claim.

You claim you were injured on the job and you wish compensation and medical coverage.

The insurance company lawyer hopes to trap you in a mistake that will cost you your case.

  1. Don’t lie; you must tell the truth.  It is mistake to think you can get away with lying in your deposition.  You need to be truthful about what happened to you.  Remember, your testimony in a deposition is under oath.  Anything you say can and will be used against you at the hearing by the other side.
  2. Don’t guess.  If you do not know an answer, then just say you do not know the answer to the question.  This is especially true about distances and measurements of any kind.
  3. Don’t fail to prepare.  You need to review your medical history.  You need to review what you have said on medical reports about your injury, accident reports about your injury, and recorded statements about your injury given to the claims adjuster.  If a doctor did not take down a history of your injury, you will have to explain this omission.
  4. Don’t fail to listen to the question.  You are only required to answer the question.  It is not a time to be making speeches.  If you don’t understand the question ask for it to be repeated.  Try to give truthful concise answers to every question.
  5. Don’t fail to review Interrogatory Answers.  If Interrogatory Answers have been already prepared and filed, you need to review them with your lawyer before the deposition.  To the extent you can, you need to be consistent with any prior answers you have given.
  6. Don’t volunteer information.  You have been injured and you want to tell your story.  You want to tell how this has harmed you and your family.  You want to tell about all the problems you are having.  Unfortunately, the defense attorney is not going to care about your problems.  You may say something that will harm your case, so just answer the question that is being asked.

In summary, if you listen to these pointers you will not make any of the mistakes listed above and hopefully your claim will be approved.

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I have practiced Workers’ Compensation law for over 35 years in Virginia.

Often, claimants call me after they have been denied Workers’ Compensation by a Deputy Commissioner.

They want me to assist them on an appeal, but I cannot because they have made fatal mistakes at the hearing.

  1. Assuming an mistake at the hearing can be corrected by retaining an attorney and appealing the denial.
    This is wrong because “new evidence” cannot be added on an appeal of the denial.  This is a rule of the Virginia Workers’ Compensation Commission.  All that an appeal, which is called a “Review of the Decision” in Virginia, does is it asks three Commissioners who handle appeals to review what the Deputy Commissioner did.  The three Commissioners only review the record; they cannot admit new evidence.
  2. Assuming medical records have been submitted that will prove causation between the accident and the condition.
    For example, the treating Doctor says John Doe injured his right shoulder on January 1, 2012 and this may have been due to lifting a 50-pound widget in Richmond.  This does not prove causation because the term “may” is considered too speculative.  The Virginia Court of Appeals has rejected this “may” language in the past.
  3. Assuming because you cannot do your pre-injury job, you will be awarded compensation for being out of work.
    This is wrong. A medical report that says you cannot do your prior occupation as an electrician, carpenter, construction worker, etc., only proves partial disability in Virginia.  In order to get compensation before the Virginia Commission, the injured worker has to also show s/he diligently looked for light duty work within his/her remaining work capacity.  This has been established by prior case law in our state.
  4. Assuming the employer’s witnesses will support your claim.
    The only reason the employer’s witnesses will be called would be to present evidence in support of denying your claim.  If they have not been deposed, then often the unrepresented claimant will have no clue as to what the witnesses will say.  The Virginia rules of the Commission allow the claimant to take depositions of opposing witnesses.
  5. Assuming the Deputy Commissioner will assure that all evidence is presented in the case.
    The insurance company will be represented by an attorney who will defend them at the hearing.  The Deputy Commissioner will be sitting as a neutral arbiter of the case.  The Deputy Commission is not allowed to take sides.  Thus, the Deputy Commissioner may ask some questions at the hearing but s/he is limited regarding developing your case.  Ultimately, the claimant has the burden of proof to develop his/her case.  Virginia case law limits the role of the Deputy Commissioner.
  6. Assuming the case is simple.
    It can be very complicated.  One has to prove: an accident, causation between the accident and the medical condition, and that the medical condition caused disability.  If the medical condition only caused partial disability, then the claimant has to prove a Job Search within the rules of the Virginia Workers’ Compensation Commission.

In summary, these are some of the mistakes unrepresented claimants make at Virginia Workers’ Compensation hearings.  There are many more.  The solution is to talk to an experienced Virginia Workers’ Compensation attorney before the hearing.  As Abraham Lincoln once said, “He who represents himself has a fool for an attorney.”

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  1. The Date Last Insured (DLI) Problem 
    Why is the Date Last Insured (DLI) an important Date? 

    Answer: In order to receive Social Security Disability, the claimant has to prove his/her disability occurred before the expiration of the Date Last Insured (DLI).  Therefore, if the DLI is too far in the past, it is difficult to prove disability occurred in the past since Social Security will normally rely more on contemporaneous medical records near the DLI than medical reports that attempt to retroactively state disability occurred in the past.
    Example: John Doe comes in with a DLI of 2009. John Doe had no medical treatment from 2007 to 2009. So, even though John Doe might be totally disabled now, it is going to be nearly impossible to prove disability in 2009.
    Practice Pointer: I have learned through the School of Hard Knocks that Social Security will not allow retroactive proof of disability in most instances.  So, file that Social Security Disability case before the DLI expires!
    Why not wait to settle the Workers’ Compensation claim before filing for Social Security?

    Answer:  This is okay as long as you are familiar with the claimant’s DLI for Social Security.
    Rule of Thumb: For the worker who has been steadily working, the DLI is five (5) years after the date last worked.
    Practice Pointer: If the claimant is a sporadic worker, then the DLI is going to be less than five (5) years from the date last worked. For this type of claimant, have him/her call the local Social Security Office and check the DLI.
  2. Social Security’s Definition of Disability 
    In a workers’ compensation case, often it suffices for the treating physician to say the claimant is “disabled” for work; does this suffice for Social Security? 

    Answer: No, the rules specifically do not allow the physician to be the final arbiter of the disability decision. Moreover, Social Security has a specific definition of disability. “Disability” under Social Security is based on your inability to work.
    You are considered disabled under Social Security rules if:
    1) You cannot do work that you did before;
    2) You cannot adjust to other work because of your medical condition(s); and
    3) Your disability has lasted or is expected to last at least one (1) year or result in death.
    Exhibit 2A: “What We Mean By Disability”
    Rule of Thumb:  The claimant may say, “my doctor says I am disabled,” but the practitioner will know that is not going to be enough to satisfy Social Security.
  3. The Five-Step Disability Evaluation Process 
    How does the Administrative Law Judge (ALJ) evaluate a claimant for disability?

     AnswerThe Judge uses a five step process:
    1) Is the claimant engaged in Substantial Gainful Activity (SGA)?
    2) Does the claimant have any severe impairments?
    3) Does the claimant meet or equal a listing?
    4) Can the claimant perform his/her Past Relevant Work (PRW)?
    5)  Can the claimant perform other lighter work in the national economy?
    Exhibit 3A:  “How We Decide If You Are Disabled”
  4. Equaling or Meeting an Impairment Listing 
    How does a claimant equal or meet an Impairment Listing? 

    Answer: You can send the Impairment Listing for the claimant’s particular impairment to the treating doctor and inquire from the doctor if the impairment equals or meets an impairment listing. However, remember that the final decision rests with the ALJ.
    Exhibit 4A: Full Impairment Listing
    Rule of Thumb:  It is rare but not impossible to meet or equal an Impairment Listing because most cases are decided at Step Four—can the claimant perform Past Relevant Work (PRW), and Step Five—can the claimant perform other lighter work.
  5. The Grid is Your Friend; Use It 
    How do I win using the Grid? 

    Answer: The Grid is a very useful tool. Social Security, unlike Workers’ Compensation, factors in one’s age, skills, and education in deciding whether one is disabled.
    Exhibit 5A: Maximum RFC Possible for Disability Finding
    Rule of Thumb: One always wants to show the claimant’s Past Relevant Work (PRW), or work done in the last 15 years, was at least medium or heavy. If you can show this, then you can try to prove disability using the Sedentary or Light Duty Work Grid Rules.
    What are the ideal characteristics for the Grid?
    Answer: A quick look at the Grid Rules for Light Duty Work will show that Rule 202.01 will dictate a finding of disability for a worker with these characteristics assuming the worker cannot perform PRW:
    1) Over age 55
    2) Uneducated (less than high school);
    3) Unskilled; and
    4) PRW was medium/heavy work, but impairment limits claimant to light duty work.
    Rule of Thumb:  The Grid does not help if the claimant is 49 or younger.
  6. The Department of Disability Services (DDS) Disability Determination Explanation 
    Prior to a hearing before the Administrative Law Judge (ALJ), how can I find out why the claimant was denied? 

    Answer: Fortunately, in Section A of the Social Security folder, Disability Determination Services (DDS) summarizes what has been done so far in the case. In the Disability Determination Explanation, you will find:
    1) Date Last Insured (DLI);
    2) Alleged impairments;
    3) Medical History DDS has reviewed;
    4) Vocational Limitations DDS has found;
    5) Prior determinations by DDS;
    6) DDS’s suggestions for other light duty work the claimant can perform; and
    7) Names and signatures of DDS’s non-examining physicians.
    Rule of Thumb: As early as you can in the process, obtain access to the Social Security folder so you can review the DDS determination as found in Section A.
    Practice Pointer: Once Social Security schedules a hearing, attorneys enrolled for SSA’s electronic folder may access the claimant’s file at www.ssa.gov/ar. Social Security sends an encrypted CD with the same information to unrepresented claimants and attorneys not enrolled in Social Security’s electronic folder.
  7. The Vocational Expert
    Why does Social Security have a Vocational Expert (VE) at the hearing? 
    Answer: If the claimant is at Step Five in the disability evaluation process, then Social Security has the burden of proof to show the claimant can do “other work” in the national economy. Social Security very often meets this burden by having a Vocational Expert (VE) at the hearing. The ALJ will ask the VE hypotheticals based on the claimant’s age, skills, and RFCs to determine whether or not the claimant can do “other work” in the national economy. One hypothetical will probably be based on the DDS determination.
    Rule of Thumb: The jobs suggested by the VE may be the same jobs already suggested by DDS in its Disability Determination Explanation.
    Practice Pointer: Always have your own set of hypotheticals ready based on your client’s testimony and your favorable medical evidence.
    What are some possible hypothetical questions the ALJ might ask the VE?
    Answer: 1) Assume a person with the claimant’s age, education, and work history and further assume the DDS restrictions, can the claimant perform PRW or any other work?
    2) Assume instead of the DDS restrictions, I accept the claimant’s testimony as credible; can the claimant perform PRW or any other work?
    3) Assume instead of the DDS restrictions, I accept the work restrictions as stated by the treating physician; can the claimant perform PRW or any other employment?
  8. The Residual Functional Capacity (RFC) Determination by the Administrative Law Judge (ALJ) 
    Does the treating physician determine the claimant’s Residual Functional Capacity (RFC)?
    Answer: No, this is determined by the ALJ based on his/her review of all of the evidence.
    How will I know the ALJ’s RFC determination?
    Answer: If you have reviewed the DDS determination in Tip #6 of this presentation and your favorable medical evidence, you will have some idea of the ALJ’s RFC determination. This is important because at least one of the ALJ’s hypothetical questions to the VE will be based on the ALJ’s RFC.
    Rule of Thumb: Make sure you get in your favorable medical reports at least two (2) weeks before the hearing so the ALJ will consider these in forming his/her hypotheticals.
  9. The Residual Functional Capacity (RFC) Evaluation by the Treating Physician
    How do I influence the ALJ’s RFC determination?

     Obtain RFC evaluations from the treating physicians. If the treating physician’s RFC reports are consistent with the claimant’s treatment records and other medical evidence, then the reports can be granted controlling weight by the ALJ in his/her RFC determination.
    For More Information: Social Security Rulings (SSRs) 96-5p & 96-2p.
  10. Social Security Rulings (SSRs) 
    In Social Security practice, are Social Security Rulings (SSRs) more important than case-law?
    Answer: Yes. In fact, these are some of the ones a practitioner should know:
    1)  SSR 82-41:  Transferability of Skills
    2)  SSR 82-62:  Past Relevant Work over Last 15 Years
    3)  SSR 83-10:  Light and Medium Work
    4)  SSR 83-20:  Onset Date Determination
    5)  SSR 96-2p:  Giving Controlling Weight to Treating Source Medical Opinions
    6)  SSR 95-5p:  Medical Source Opinions on Issues Reserved to the Commissioner
    7)  SSR 96-7p:  Evaluation of Subjective Symptoms
    8)  SSR 96-8p:  Assessing RFC in Initial Claims
    9)  SSR 96-9p:  Sedentary Work and the Sit/Stand Option
    10)  SSR 00-4p:  VE Testimony must comply with Dictionary of Occupational Titles (DOT)
    11)  SSR 06-03p:  Medical Evidence from Non-Doctors (nurses, chiropractors, etc.)
    Exhibit 10A:  Full Social Security Rulings
    For More Information:  Social Security Disability Practice by Thomas E. Bush
  11. Average Current Earnings (ACE) versus the Average Weekly Wage (AWW)
    Does Social Security use the workers’ compensation Average Weekly Wage (AWW) of the claimant in its computation of benefits and any Workers’ Compensation offset?

    Answer: No, Social Security uses Average Current Earnings (ACE) to compute benefits and any offset. The simple explanation of the ACE is that Social Security will use the best year the claimant had in the last five (5) years before becoming disabled to determine the offset.
    Exhibit 11A: POMS §DI 52150.010 – Average Current Earnings (ACE)
  12. The Trial Work Period (TWP)
    Does the workers’ compensation claimant lose his/her Social Security Disability benefits when the workers’ compensation vocational consultant finds him/her a light duty job?
    Answer: Not right away. Social Security wishes to encourage people to return to work, so it has a Trial Work Period (TWP). Basically, it will disregard the first six (6) months of income upon a return to work before the claimant will be disqualified. This is so even if the TWP salary exceeds the Substantial Gainful Activity (SGA) as explained in Tip #13 of this presentation during this initial six-month period.
    Rule of Thumb: Continued work after the sixth month will result in an “overpayment” of Social Security benefits.
  13. Substantial Gainful Activity (SGA) & Disability
    What amount of income indicates you are not disabled?
    Answer: Social Security has a gross income trigger that indicates you are not disabled. For 2016, that trigger is $1,130.00 per month for non-blind individuals. Therefore, after a claimant is found disabled by SSA, the claimant can work part-time as long as he/she is under the gross income trigger.
    Exhibit 13A: SGA Chart
    Rule of Thumb: Some claimants violate SGA because they fail to realize the minimum is based on GROSS earnings and not net earnings, while others violate SGA by having five (5) part-time pay periods in one month. Also, Social Security can review a case to decide if there is “medical improvement” regardless of the claimant’s salary. Generally, a review occurs three (3) years after a finding of disability unless the ALJ specifies a shorter review period in the decision.
  14. No Workers’ Compensation Offset for Social Security Retirement Benefits
    Would Workers’ Compensation benefits be reduced if the claimant is on Social Security Retirement?
    Answer: No.
    Practice Pointer: If you have a 62-year-old claimant, sometimes he/she may want to claim Early Retirement benefits at age 62 rather than Social Security Disability, that way his/her benefits are not reduced. Later, if the claimant is not on Workers’ Compensation, the claimant can file for Social Security Disability and convert the Early Retirement to Social Security Disability provided the claimant has not reached Full Retirement Age and can show his/her DLI has not expired.
    Rule of Thumb: At the claimant’s full retirement age, Social Security Disability “converts” to Social Security Retirement.
  15. Lump Sum Proration to Avoid Workers’ Compensation Offset
    Where do I find the rule Social Security uses to determine this?
    Answer: SSA’s Program Operations Manual System (POMS). POMS DI 52150.065 (B)(2)(b) says, “If the award involves an LS, use all three proration methods described in DI 52150.060 to compute offset and select the most advantageous method [to the claimant].” POMS DI 52150.060 (D)(3)(a) says, the first priority for establishing weekly rates is, “the rate specified in the LS award.”
    Exhibit 15A: POMS DI 52150.065 – Complex Lump Sum (LS) Awards and Settlements
    Exhibit 15B: POMS DI 52150.060 – Prorating a Workers’ Compensation / Public Disability Benefit Lump Sum Settlement
    Rule of Thumb:  Make sure the prorated compensation rate is in the final order and not just in the petition.

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  1. Over-exertion:  The #1 cause of Workers’ Compensation injuries occur after excessive lifting, pulling, carrying, throwing, or pushing.
  2. Slipping or Tripping:  Trip over something or slip on a wet floor.
  3. Falls from a Height:  Slip and fall from a ladder or scaffold.
  4. Reaction:  Jumping out of the way of a falling object or pulling back when startled, often resulting in trauma or muscle injuries.
  5. Falling Object:  Something in the workplace falls and strikes the body, often resulting in head injuries.
  6. Walking into Something:  Often resulting in head, knee, neck and foot injuries.
  7. Auto Accidents:  Workers who wreck while driving a company vehicle, sometimes resulting in death.
  8. Machine-caused:  Workers using and working around moving equipment and machinery can get their clothing, shoes, fingers, or hair caught or compressed by the device, sometimes resulting in crush injuries or amputation.
  9. Repetitive Trauma:  Virginia ONLY recognizes Carpal Tunnel Syndrome and hearing loss.
  10. Fights or Assaults:  Often occurs when employees get angry at management or each other, breaking up a fight between patients, or armed robbery at the job site.

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It happens. You have an accident on the job which results in an injury. It gets worse when your employer fires you. What can you do?

  1. You have a right to sue your employer under Virginia Code §65.2-308 if you are fired as a retaliation for filing a work injury or occupational disease claim. You can recover actual damages and attorney’s fees. However, I do not handle these types of lawsuits, so you may want to contact an Employment Attorney who specializes in Wrongful Discharge.
  2. If you were fired due to a positive drug test, you may still be eligible for work comp benefits if the drugs or alcohol did not cause the accident.  The employer may have a right to fire you for a violation of its anti-drug policy, but if you contact an experienced workers’ compensation attorney, he may be able to show by a pathologist your drug or alcohol level was not the cause of the accident.
  3. If you return to work Light Duty at the same employer, they may look for an excuse to fire you.  In order to cutoff your compensation, the employer would have to show you were fired for “misconduct.” So be aware and be extra careful!
  4. If you return to work Light Duty at the same employer and get fired for misconduct, you may lose your work comp benefits.  Misconduct includes a violation of drug policy, absenteeism, insubordination, fighting, etc.
  5. If you return to work Light Duty at the same employer and get fired, you may file to go back on compensation provided that 1) the termination was not due to misconduct and 2) you are within two years of the date you last received compensation. For instance, if you get let go simply because the employer cannot accommodate your restrictions, you must market your residual work capacity by keeping a regular job search log until you have an Award Order for Compensation issued by the Virginia Workers’ Compensation Commission.

In Summary, it is bad enough to get injured on the job. It can add “insult to injury” if you are fired as a result of your accident. If this happens to you, first consult an experience workers’ compensation attorney (and then perhaps a wrongful termination attorney).

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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 2016. LexisNexis listed him in the Bar Register of Preeminent Attorneys from 2005 to 2009.
You may call the GGL Law Firm at (804) 335-0268 for more information.

Having MS for a long time, working was becoming very difficult for me so I applied for disability benefits. I was denied any benefits and heard that I would need to hire a lawyer. A long time friend of mine, who is a lawyer, said to call Gerald Lutkenhaus. Jerry and his staff were very knowledgeable about the entire process and the firm handled my case as true professionals. Thank you.

Update: I just got the decision letter in the mail from the ALJ, I was awarded disability benefits!! Thanks again.
Todd B., 5.0 Review ★★★★★

Gerald was very thorough during the time I spent with him in the office discussing my claim and my concerns. He and his staff were polite and welcoming which was nice. I could definitely see myself referring others to him. Thank you for all that you have done for me.
Monaiya G., 5.0 Review ★★★★★

I needed a workers comp lawyer for my totally incapacitated husband. I contacted Jerry. He and Rose did a great job on his case and got him a settlement for $300,000 plus lifetime medical care and a home health aide at $600 per week.
Wanda S., 5.0 Review ★★★★★

I was hurt multiple times on the job. The last injuries I sustained was torn labrum, left bicep, and had messed up the current fusion that was done to my neck. My company only wanted to pay to have my shoulder and left bicep reattached. Now I have a chance to get the surgery to correct all the pain. Everyone was very helpful – Anne, Rose, and Mr. Lutkenhaus.
Justin V., 5.0 Review ★★★★★

Worked for me on a case. I acquired PTSD after getting a shock finding a suicide at my apartment complex. Their lawyer tried to show I could work at the complex. Fear kept me from doing this. He helped stop their attempt to cut off my compensation.
Crystal S., 5.0 Review ★★★★★


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