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”.
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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 wage.

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.         

MEDICAL BENEFITS

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 per claim.

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.

VOCATIONAL REHABILITATION

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 Court.

CONCLUSION

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.