Virginia Workers Compensation Law
How to Maximize Recovery
for your Injuries
BENEFITS UNDER THE VIRGINIA WORKERS COMPENSATION ACT
A. WAGE BENEFITS
There are seven types of benefits that a claimant may obtain under the
terms of the Virginia Workers’ Compensation Act. Depending on the
nature of your claim, you may be eligible for all seven, but we will first
address the most common of these benefits.
There are two types of wage replacement benefits, Temporary Total Disability
benefits, (hereinafter referred to as TTD benefits, and Temporary Partial
Disability benefits (hereinafter refereed to as TPD benefits).
When and employee has been rendered completely unable to work as a result
of his or her industrial accident (an on the job injury is referred to
as an industrial accident), that claimant may be eligible to receive two
thirds (66.66%) of his gross (before taxes and other deductions) average
weekly wage for a period no longer than 500 weeks.
For example, say that the claimant has been injured and was completely
unable to work for a period of 2 months before returning to his or her
employment. Assuming that the gross average weekly wage for the claimant
was $600.00, the claimant would be eligible to receive $400 per week (2/3
x $600= $400) for that two month period. (It should be noted that
an employer is not required to pay for the first seven days of disability
unless the claimant was disabled for more than three weeks, then the first
seven days must be paid also. In this case, the claimant was out
for more than three weeks. Therefore, the first seven days of disability
will also be paid.)
Assume further that the claimant is released back to work on restricted
duty, and the only job available through the employer, or through another
employer pays less than the claimant’s old job. In the example noted
above, assume the claimant returns to a job that only pays a gross average
weekly wage of $450.00. The claimant would then be eligible for Temporary
Partial Disability, or TPD, benefits in the amount of two thirds of the
difference between the pre-injury wage of $600.00 and the current pay rate
of $450.00, or $100.00 ($600.00-$450.00=$150 x 2/3 = $100.00) for
up to a maximum of 500 weeks.
A (1) Permanent and Total Disability
Although in almost every case, wage loss benefits are limited to a maximum
of 500 weeks, in certain rather severe circumstances, a claimant may be
eligible for two thirds of his or her gross average weekly wage for life.
Said benefits are referred to as Permanent Total Disability, or PTD, benefits.
Such circumstances encompass the loss of both hands, arms, feet, legs or
eyes, or any two in the same accident, or if the claimant is paralyzed,
or if they are disabled from a severe brain injury.
A(2). Death Benefits
The surviving spouse of a claimant, or their surviving child under 18
years old, or under 23 years old if enrolled in an accredited educational
institute may be entitled to all or a portion of the 500 weeks of wage benefits
in the unhappy event that you die either as the result of the industrial accident,
or if you pass away prior to the expiration of your benefits. These
benefits may also be available to destitute parents and other dependents.
In addition, death benefits include up to $10,000.00 in funeral expenses
and up to $1,000 in funeral related travel expenses.
A(3). Cost of Living Increases
Any claimant receiving TTD, PTD, or Death benefits shall be entitled
to a cost of living increase effective on October 1st of that year, if the
date of the accident predates July 1st of that year. In addition, the
combination of VWC wage benefits and any Social Security benefits the claimant
may be receiving must not exceed 80% of the claimant’s pre injury wage.
It should be noted that cost of living increases must be specifically requested
by the claimant to the Commission. They will not be granted automatically.
If you do not ask for the increase, you will not get the increase.
A(4). Permanent Partial Impairment
In addition to the wage benefits noted above, separate benefits, known
as Permanent Partial Disability benefits, or PPD, may also be available
to a claimant who suffers the permanent loss of the use of a body part,
such as an arm, leg, foot, hand, finger, or eyes and ears. In addition,
the loss of hearing and vision is compensable. The loss does not
have to be as severe as that which would make a claimant eligible for Permanent
Total Disability, and can even be the partial loss of the use of a covered
body part. It should be noted that the statute does not provide benefits
for permanent injury to the back, to the neck, or to the “whole body”.
The statute is somewhat archaic in this regard, originating back in the
day when workers routinely lost arms and hands to dangerous machinery, and
does not cover more modern ailments such as carpal tunnel syndrome, or the
disability that can arise from a ruptured spinal disk.
Benefits for the loss of those parts of the body that are covered by
the statute are based upon a schedule that is contained in the statute,
and are for a specific number of weeks per body part, and further divided
by the percentage of loss. The treating physician of the claimant must
indicate that the claimant has reached the point where no further medical
care will improve the claimant’s condition. This status is referred
to as “Maximum Medical Improvement, or “MMI”.
If we go back to our original example of the employee who averages $600
per week in average weekly wages, and further indicate that said employee
has lost his big toe, his Permanent Partial Disability benefits would be
determined in the following manner. The claimant would have the foot
examined by his treating physician. The treating physician would prepare
a medical report indicating three things, that the toe was lost as the direct
result of the industrial accident in question, that no amount of medical care
is going to restore the toe, so that the claimant has reached Maximum Medical
Improvement, and that the claimant has suffered a 100% loss of the toe.
A review of the statute shows that the compensation for the loss of a
big toe is 30 weeks of VWC average weekly wages. As we noted before,
two thirds of $600 is $400, and that is the VWC average weekly wage amount.
Therefore, the claimant shall receive 30 weeks of wages at $400 per week,
for a total of $12,000.00 (30 x $400=$12,000) in PPD benefits for the loss
of his big toe. These benefits are paid in addition to any other
benefits noted above, and may be collected even after the claimant has
returned to work which pays him equal to or greater than his pre injury
It should be noted that the sample noted above is simpler than most case.
In most cases, the claimant suffers a percentage of loss to the covered
body part, and there are often disagreements between the claimant’s treating
physician and a doctor hired by the review the claim about the actual percentage
of disability. For example, let us assume our claimant suffered damage
to the ligaments of the foot. After a full course of treatment, the
claimant’s use of the foot is still limited to 50% of pre-injury use, and
the doctor determines that it will not improve with further medical care.
The loss of a foot is worth 125 weeks of wages, which at 50% disability
would translate to 62.5 weeks of compensation, or $25,000.00 (62.5 x$400=$25,000.00).
Now the doctor hired by the company reviews the medical notes and examines
the claimant, and makes a competing diagnosis that the claimant has only
suffered a 20% loss of the use of the foot. Twenty percent of 125
weeks is 25 weeks. Therefore, the company doctor argues that the claimant
is only eligible for $10,000.00 in PPD benefits. (25 x $400=$10,000).
This disagreement may be resolved in one of two ways. The claim
may go to full hearing, and the hearing officer, known as a Deputy Commissioner
of the Virginia Workers’ Compensation Commission, will make a determination
in favor of one or the other parties, or may reach a third conclusion somewhere
between the two figures. The dispute may also be resolved between
the parties as part of a settlement of the case. In either circumstance,
you need the skill of the Bose Law Firm to maximize the amount of benefits
you can receive in this type of case.
Unlike wage benefits, which are limited to a maximum of 500 weeks in
all cases with the exception of Permanent Total Disability Recipients,
as noted above, medical payments for conditions caused by an accident or
occupational disease will be paid for as long as necessary, so long as
the claim is submitted within the two year statue of limitations for Workers’
Compensation claims. (Occupational diseases, for the purposes of the Statute,
include Pneumoconiosis, Asbestosis, Silicosis, and Byssinosis. In
lay terms, these diseases are what is commonly referred to as “Black Lung”,
suffered by coal miners, and diseases caused by the inhalation of asbestos,
cotton fibers or industrial chemicals. The statute does not recognize
“carpal tunnel disease. Other occupational diseases are the subject
of constant litigation. Occupational diseases are subject to the
extended statute of limitations for the filing of a claim as noted previously
in this essay.)
The employee will be provided with a “Panel of Physicians” by the employer,
and the employee must choose and go to one of these doctors. The
panel must have at least three doctors listed to be a legitimate panel
for the purposes of the Act. This requirement was added to curtail
the practice of companies referring all injured workers to a particular
“company” doctor, who would then, not surprisingly, find little or nothing
wrong with the claimant. If the claimant is not provided
with a “Panel of Physicians” by the employer, the claimant may seek treatment
on his or her own initiative. In either circumstance, the doctor
chosen by the claimant is designated as the “treating physician”, and the
treating physician may legitimately refer the claimant to other doctors
or specialists, and the bills for those doctors or providers of service
shall also be paid by the employer. Please note that, once a
doctor has been designated as the treating physician, that treating physician
cannot be changed by the claimant without the approval of the employer/carrier,
or from the Commission itself after a hearing.
It is very important that your treating physician actually write out
a referral to another provider of medical service, and that that referral
be provided to the employer or the employers’ insurance carrier. In
addition, I would warn and advise any claimant that for all periods for
which a doctor advises you to not go to work, it is extremely important
that the doctor write out a work excuse specifying the dates to which it
applies, and that said excuse is provided to your employer, the insurance
carrier, and your own attorney. The wage disability benefits noted
above are based entirely on medically excused leaves of absence from work,
and such notes are vital to proving that the time you missed from work was
legitimately missed and excused by your treating physician. You must
remind your doctor of this, and be sure to obtain the work excuse notes.
The employer may also be held responsible for payment for medical
equipment that will aid in the treatment or care of the claimant’ s injuries,
such as prosthetics (false limbs), wheel chairs, walkers, canes; bed side
lifts, adjustable beds and home modifications such as ramps, handrails and
the like, depending upon the nature of the claimant’s injuries.
However, the total lifetime benefit for this type of item is limited to $25,000.00
Finally, the claimant’s mileage to and from medical care is considered
a medical expense and may be reimbursed under the terms of the statute.
An employee who has been released to light duty work is obliged to seek
and accept such work, even if they plan to ultimately return to their old
job. You have to accept the position offered, or you may risk losing
your benefits. Claimants are obliged to “mitigate” (reduce) their damages
to the extent that is possible. Therefore, if your employer offers
you light duty work, you must take it, even if it pays less then your old
salary. If it does pay less, you would still be eligible for Temporary
Partial Disability benefits, as noted above. However, if you turn
down the light duty work, you can be found to have failed to mitigate your
wage loss damages, and benefits can be cut off.
In addition, you will need to register with the Virginia Employment Commission
and maintain a record of the dates and places of employers with whom you
have applied for work. You cannot just sit back and wait for a job
to come to you.
The employer may be obliged to offer you a “Vocational Rehabilitation”
program, and you must participate in said program if you want to remain
eligible for benefits. Such a program may take two forms.
One form is directed solely at the rehabilitation of your body so that you
are strong enough to return to your old job. The second form is Vocational
training, wherein a determination has been made that you cannot return to
your old job, and training for a new career is necessary. These programs
can be very helpful, and the claimant will benefit in many ways by participating
in them. Moreover, you must participate, or risk losing benefits.
RESOLUTION OF CLAIMS
Many, if not most, Workers’ Compensation claims are resolved and settled
by the claimant and the employer prior to a hearing. This is done
by a Memorandum of Agreement in cases involving ongoing benefits, or by
lump sum settlements which resolve all issues in a claim in other cases,
depending on the status of the claimant’s care, treatment and recovery.
In these cases, the terms are fully explained and accepted by all parties,
settlement related documents are signed by all parties and forwarded to
the Commission for approval, and once settlement is approved by the Commission,
the benefits are distributed. Your attorney will submit a request
for attorneys’ fees, but may only accept that amount approved by the Commission.
Please note that attorney’s fees will be deducted from your benefits, or
you will be directed to pay a specific amount directly to the attorney.
Attorney’s fees are rarely ever imposed upon the other party in VWC cases,
so do not count on the employer being obliged to pay your attorneys’ fees.
If no settlement or other resolution is reached, the claim must go to
a hearing before a Deputy Commissioner. These proceeding are less formal
that a trial in a court, but you will be obliged to testify on your behalf,
will be subject to questioning by the opposing attorney, and you will be
under oath. At the hearing, the claimant must prove, through testimony,
witnesses, and medical reports, that the injury, disease or disability was
caused by their work. If the claimant has been released to light duty
or full time work, they must show that they have actively sought new employment
in the manner noted in the “Vocational Rehabilitation” section noted above.
The claimant is strongly urged to have an attorney throughout this process,
but it is vital to have one on your side at a hearing. Here at Bose
Law Firm, we have handled hundreds of such hearings and are fully prepared
to successfully advocate for you before the Deputy Commissioner.
Should your claim be denied at the Deputy Commissioner level, your claim
is not over. You have every right to appeal this decision to the
full Commission within 20 days of the date that your claim was formally
denied (the date of the decision denying benefits), and may do so by sending
them a request for a review of the decision with the 20 days.
An adverse decision at this full Commission level may be further appealed
to the Court of Appeals of Virginia, and from there to the Virginia Supreme
We at the Bose Law Firm sincerely hope that this synopsis of the law
has been helpful to you in understanding your rights under the Virginia
Workers’ Compensation Act, and has illuminated the method by which you
may pursue those rights. We stand ready to assist you with the highest
level of service and look forward to meeting with you at our offices.
Law Firm, PLLC
Virginia Worker's Compensation Lawyers
8180 Greensboro Drive, Suite 775
Mclean, VA 22102
6354 Rolling Mill Place, Suite 102
Springfield, VA 22152
703-926-3900 ext. 6
Toll Free: 877-372-2827 ext. 6
All rights reserved. Bose Law Firm, PLLC.