What Benefits Are Available To Me Under Virginia Compensation Law?

The benefits available to injured worker with a covered claim come under the following broad categories:

• Medical
• Payments while you are unable to work and your condition is improving
• Vocational rehabilitation
• Permanent Disability

Most injuries do not involve each of the above categories. However, an employee can never be sure of the extent of their injury for days, weeks or even years. Therefore, it is vitally important to file your claim with the Workers' Compensation Commisison in order to protect your right to obtain the benefits that may be necessary to allow you to recover both physically and financially!

Medical

If your claim is covered under Virginia law and you have properly filed it, your employer and their insurer are responsible to pay for the rest of your life any treatment that is:

• Caused by your injury; and
• Is reasonably necessary.

A significant limitation to injured employees right to medical benfits is that the employer or insurer has the right to choose the doctor. After the employer receives notice of the injury the employer has the option of providing the employee with a panel of three physicians. If a panel is provided the empoyee must treat with one of the panel physicians in order to guarantee payment under the Workers' Compensation Act. Once treatment has begun, the employee may not change physicians without the approval of the employer/insurer or after a hearing before the Commision. However, if a panel is not offered then the employee may chose his doctor.

This provision of the law makes it crucial that an injured worker sek the advice of an attorney at the beginning of their claim. Even though the employee's choice is limited, an attorneys' input into making the choice can be crucial to the future of the case. This is because in the event of a dispute, the Deputy Commisisoner will give great weight to the opinion of the treating physician. Such disputes can involve:

• Ability to work
• Vocational Rehabilitation
• Extent of permanent disability
• Appropriate medical treatment
• Relation of the condition to the job injury

Medical treatment includes:

• Physician charges, tests, and hospitalizations;
• Prescriptions (100%); and
• Parking and mileage reimbursements (the rates change each year) for travel to and from your medical provider

Your attorney should submit your bills and reimbursements for payments so that a record will be created as to when and what was submitted should the insurer fail to fulfill its responsibilities (as often happens) and a hearing is required.

Insurers usually will not object to the initial treatment required by the employee if they have accepted the claim. However, if surgery is suggested or treatment extends over more than a few weeks, the insurance company, in a misguided attempt to control the costs of the case, will often exercise their right to have you examined by a physician of their choosing. This is called an IME (although the letters are supposed to stand for "Independent Medical Exam" they really mean "Insurance Medical Exam"). It is important to emphasize that this physician may not treat you, he can only examine you and render an opinion. Frequently, they will render an opinion that the treatment you are requesting is not necessary and/or related to your injury. This will then result in a delay in obtaining the medical care until a hearing is held to resolve the matter. Since we win most of those issues, it is difficult to reconcile why, except in the most extreme cases, insurers present these roadblocks and delays. Unfortunately, the delays cause unnecessary anguish and hardship to the injured worker. Yet the insurers persist in doing so!

Another tactic insurers use is to assign a nurse to monitor your medical care. Often times they attempt to intrude on your privacy by coming to your home and speaking directly to your doctor. We generally do not allow them the direct access they request unless your medical condition is extremely serious and not likely to be contested. The reason we are careful is that the nurse often interferes with the private trust between you and your doctor, records your comments in written reports that become evidence in your case, and otherwise obtain information that may be used against you by the insurance company!

Your right to quality medical care is clear and absolute. However, you must realize that the worker's compensation insurer is not your insurer. They are the insurer for your employer! They are in the business of limiting the cost of your claim. They are not your friend! They are happy if you recover quickly or if they successfully limit the treatment you receive. Either way they have reduced their costs and increased their profits! Our job is to assist you in receiving the appropriate quality medical care required to maximize your recovery. To do this we draw on our vast experience in compensation related medicine and a large group of medical experts from which we can obtain advice as well as our combined experience in representing thousands of clients in over ten thousand hearings!

Payments While You Are Unable To Work And Your Condition Is Improving

The law provides that compensation during the "healing period" must be paid by the employer or its insurer, at the rate of two-thirds of the injured worker's average weekly wage. This is called "temporary total disability benefits" or "TT". The employee's average weekly wage is usually calculated by totaling the employee's earnings, including overtime, over the fifty-two (52) weeks immediately prior to the injury and then dividing by 52. Since there are some exceptions to the rule that could result in a higher average weekly wage, it is very important to discuss the issue of your wages with your attorney. Otherwise, you may loose the right to thousands of dollars of benefits over the life of your claim!

The amount paid is subject to a maximum rate which is based on the average State wage established by the Virginia legislature of all employees in Virginia for the year that you were injured. The payments are tax free!

Some employers will pay full salary benefits instead of TT. This is fine as long as:

• You are not using your sick leave;
• You are not lulled into forgetting to file a Workers' Compensation claim form;
• ; You have not worked a lot of overtime in the three months before you were injured.

Other employers will pay two thirds of your benefits as TT and the remaining one third of your normal salary in some form of disability pay. Vigilance is required to make sure that your employer's payroll department does not inappropriately withhold taxes in these instances.

There are times that an employee has not yet reached maximum medical improvement but can return to a lighter duty job or to the same job for a reduced amount of hours per week. In these instances, the employee is entitled to temporary partial benefits (TP). The employee may receive 2/3 of the difference between the employee's average weekly wage before the injury and what it is while on restricted duty. Many times claimants fail to make a claim for TP benefits when they return to a light duty full time job, but are not eligible for overtime.

As you can imagine, insurance companies attempt to reduced the amount of temporary benefits they pay on a claim. Their tactics may include the following:

• Use of investigators and videotape to try to prove that employees are able to do more than they tell their physicians;
• Use of medical exams by doctors pre-selected by insurers to provide opinions that may support stopping TT benefits;
• Use of nurses or vocational counselors to intrude on your relationship with your doctor and to gain information from you directly which can be used against you; and
• Arbitrary refusal to pay benefits (perhaps to coerce settlements on terms favorable to the insurance company).

We are familiar with all of the tactics used by the insurers. There are certain patterns of behavior and history of prior conduct which often provide us advance knowledge of when these tactics will be used and give us an opportunity to defend against them before any damage is done!

Vocational Rehabilitation

The law provides that if your injury deprives you of the physical ability to continue with your employment then you are entitled to vocational rehabilitation as long as you are actively marketing your residual functional capacity (looking for work). The employer/insurer have the responsibility to do whatever is "reasonable to provide suitable employment". While vocational rehabilitation is continuing, the employee will receive benefits at the temporary total disability rate. What this means is the source of much argument and litigation!

It is devastating to an employee when he or she looses the physical ability to continue to do their job. Although it may be impossible to return an employee to their pre-injury wage immediately, the focus of rehabilitation should be to provide a job with dignity and the potential for future growth. This may require schooling, on the job training and counseling in addition to job placement activities.

Unfortunately, all too often, insurance companies and their hired vocational counselors view the process as "us vs. them"! They attempt to shortcut the process by only providing short periods of job placement assistance in jobs with low wages and no hope of future advancement. From the insurance company's perspective, they may be just as happy if the injured employee becomes angry or un-cooperative. Then they will attempt to obtain a cheap settlement or will seek to portray the employee as lazy or dishonest at a hearing!

We, at BS&G, believe that this is one of the most significant aspects of a Workers' Compensation claim! Through the use of:

• The rules to influence the selection of rehabilitation counselors;
• Ground rules for the counselors which includes no visits to the employee's home or his doctor (except in certain limited circumstances);
• Extensive experience and knowledge of the history of conduct by the various vocational companies and the counselors; and
• A thorough knowledge of the law;

We often achieve tremendous results for our clients. Since the potential benefits available include tuition plus two thirds of your average weekly wage paid while you are in school, many of our clients have been able to progress to careers with opportunities much greater than they had before the injury! At a minimum we insist that our clients are treated with respect and are not railroaded into jobs that are not appropriate for their age, education, talents, transferable skills and physical restrictions.

Permanent Disability Benefits

If an injury results in any permanent physical problems, no matter how slight, the employee may be eligible for permanent disability benefits. If the injury involves any part of an arm,leg, hearing or vision, it is called a scheduled loss injury and the injured worker can receive benefits based on the percentage disablity he sustained to that body part.. Other injuries, primarily neck, back and head injuries, require permanent wage loss to obtain extra benefits.

Scheduled Loss Injuries

Virginia law has assigned a number of weeks of payments for each body part other than the neck, back, shoulders, internal organs, head and psychological injuries. Payment is made to the claimant based upon the phsician's impairment rating which is based on the American Medical Association Guidelines. Virginia Deputy Commissioners place great weight on the opinion of the treating physician. Once again, this highlights the importance of selecting the best available treating physician on the panel prided by ypour employer at the beginning of your claim. Either side may also obtain an opinion for another physician of their choice as to the extent of permanent disabilty, but these opinions generally carry far less wight than that of the treating phhysician.

The number of weekly payments made for a scheduled loss is calculated by multiplying the percentage disabilty found by the amount of weeks the injured body part is worth. Then injured worker will then receive that many weeks of compensation i addition to his/her salary after returning to work. The amount per week will be equivalent to the temporary total diability rate (2/3 of average weekly wage.

Wage Loss Cases

If the injury involves the back, neck, head, shoulder, or more than body part, then Virginia law considers the wage loss the employee has sustained in order to determine payments. The claimant will receive 2/3 of his/her ongoing wage loass.

As you can see, the initial determination of average weekly wage may have a large effect on what you ultimately receive for permanent disability! The award will be paid to you weekly beginning the day you stopped receiving benefits for being out of work in the case of a scheduled loss. A wage loss payment that contues after you ahve reached maximum medical improvement.

It is vitally important for you to claim permanent disability benefits if you are eligible for them. Not only will you potentially receive many thousands of dollars of tax free money for your injury, but you also will then have the added protection of a legally binding finding that you have sustained permanent injuries from the accident. This is extremely important if you need medical treatment in the future. Without a finding of permanent disability, the employer will surely object to any future medical care if there has been a gap in treatment of several months or years.

Scarring and Disfigurement

If you are not feeling any physical pain, but your injury has left you with a scar you are entitled to an award for that disfigurement. Injuries such as cuts and dog bites often result in such claims. What may seem to be a small inconsequential scar can often result in a thousand dollars or more of benefits.