Virginia Workers’ Compensation
What is the Virginia Workers’ Compensation Commission?
The Virginia Workers’ Compensation Commission is an agency of the Commonwealth of Virginia that oversees the resolution of work place injuries in accordance with the Virginia Workers' Compensation Act. Formerly called the Industrial Commission, the Virginia Worker’s Compensation system has existed since 1918. The Workers’ Compensation Act provides for medical, wage replacement, permanent disability, and death benefits for those workers who have suffered work place injuries that fall under the jurisdiction of the Workers’ Compensation Act.
A Workers’ Compensation case essentially takes the place of a traditional personal injury suit against an employer when a worker is hurt. One of the reasons in chief the VA Workers’ Compensation Act was most likely enacted was for a simple reason: economics.The reality is that if everyone who suffered a work place injury sued his or her employer eventually no employer would be able to hire anyone. The Workers’ Compensation system, therefore, takes the place of a traditional personal injury claim against an employer, and in most cases it is the sole remedy for an injured worker. It does not eliminate a 3rd party suit against another negligent party, but if it is a worker’ compensation injury a separate lawsuit against the employer for the same injury is prohibited by State law in the vast majority of cases.
For those interested in allowing Thomas & Thomas to represent them, we will either meet in person with an injured worker at their convenience or we will speak with them over the phone to gain an understanding of the injury and accident and how we are able to assist them. We will then go about filing the initial claim before the Workers’ Compensation Commission and working toward obtaining an injured worker the benefits they are entitled to receive. Filing of the initial claim is what initiates the beginning of having of that accident and injury recognized by the Workers’ Compensation Commission and prevents the statute of limitations from running. Once a claim has been filed, we also fight to protect the rights of an injured worker throughout the life of their claims before the Workers’ Compensation Commission.
One of the primary questions many injured workers have for us is, “how does Thomas & Thomas get paid?”
Many injured workers are concerned that they will not able to pay the legal expenses of their representation. The good news is that Workers’ Compensation is contingency work. This means that there are no legal fees to pay unless Thomas & Thomas prevails. Should Thomas & Thomas be successful in prevailing before the Workers’ Compensation Commission, the Commission itself will award an attorney’s fee based upon what is reasonable for the services provided. Normally, this attorney’s fee is paid out of past due benefits owed to the injured worker. If there are no past due benefits, however, it is the practice of Thomas & Thomas to give to the injured worker the option of either paying the awarded attorney’s fee out of pocket or to simply place it on a client’s “tab,” which can then be re-paid at such a time that their case settles.
If you are interested in discussing your work injury with an attorney, please fill out and the VA Workers’ Compensation Consultation Form. You will be contacted within 24 business hours.
Frequently Asked Questions
The short answer is, “yes.” In fact, J. Aaron Thomas has recovered several million dollars in combined settlement money for his clients over the course of his career. In the event an injured worker is interested in settling their case, Thomas & Thomas will conduct a settlement analysis of the case and will discuss with the injured worker what a settlement demand might look like. If the injured worker agrees with the proposed settlement demand, Thomas & Thomas will then work on obtaining the maximum settlement value for the injured worker. It is important to remember that being interested in settling a case does not obligate an injured worker to settle. It only means that if the insurance adjuster offers an amount that is pleasing to the injured worker the case can then settle. If the offered amount never arises to the level that satisfies the injured worker, the injured worker simply says, “no thank you,” and the case proceeds along its natural course. If Thomas & Thomas, however, is successful in settling the case, the Workers’ Compensation Commission provides 20% of the lump sum settlement to Thomas & Thomas. This is an excellent value, as personal injury attorneys routinely receive 33.3% of any settlement money they recover.
Emphatically, “yes.” Unless a claim is filed, and an award order entered, the insurance carrier's payment of wage loss and medical benefits is purely voluntary. The insurer can choose to approve benefits or not to do so. Legally nothing can be done to force them to take care of an injured worker and no penalties will be assessed if they fail to do so. This means if the insurance carrier decides not to approve benefits, the entire weight of not being able to work, or only being able to work in a reduced capacity, and the cost of all medical bills associated with treating that injury is shouldered by the injured worker.
Some workers are concerned that filing a workers’ compensation claim is somehow unethical or that they have concerns that filing a claim is the same as suing their employer. While this thought is understandable, it is arises from an incorrect assumption about the Workers’ Compensation system. It is important to understand that in most cases a Workers’ Compensation Claim is filed against insurance company representing the employer—not the employer themselves. Sometimes, the employer even wants to do the right thing and use the policy to take care of an injured worker, and the insurance adjuster will not comply.
While the filing of a claim may make an employer’s insurance premium increase, it is important for a injured worker to keep their focus upon how their injury has effected their ability to work and the cost of the medical care required to treat their injury. Remember, VA, in many cases, has removed the ability of an injured worker to sue their employer for a work place injury. Additionally, there is limited time to file a Workers’ Compensation claim before an injured worker is prevented from doing so. After the time has elapsed to file a claim, all the medical expenses and fall out of not being able to work solely becomes the responsibility of the injured worker. This could very well lead to bankruptcy and financial ruin of the injured work and his or her family. It is far better, therefore, to file a Workers’ Compensation claim to protect your rights and prevent financial ruin.
An Award Order is a judicial order—recognition by the VA Workers’ Compensation Commission—that an injury is protected under the Workers’ Compensation Act. An award order is critically important as it is what places the Workers’ Compensation insurance company on the hook for providing an injured worker with life time medical care and wage loss benefits during the period of complete or partial disability. If an award order is not in place, an insurance adjuster’s willingness to approve medical care and pay wage loss benefits is strictly voluntary. He or She can decide to take care of an injured worker or not, and choosing not to provide medicals and wage loss benefits is not illegal. Once an award order is in place, however, fines and penalties can be assessed against the insurance company for failure to provide medical care and wage loss benefits to an injured worker.
This is a question we very commonly receive. The simple answer is that an employer who fires an employee for filing a workers’ compensation claim, in good faith, opens the door to a serious employment law case for wrongful termination. It is illegal for an employer to fire an employee for exercising their statutory rights, and filing a Workers’ Compensation claim.
Now, all that being said, Virginia is a right to work state. This means an employer could theoretically fire someone if that employer does not like the color of an employee’s shoes. This also means an employer could legally dismiss an employee who was no longer able to do their job as a result of being injured on the job.
What this means is that filing a claim should legally have no effect upon your status with your employer. Either they can provide you a light duty job after your accident or dismiss you because there is no light duty. What they cannot do is terminate you for filing a claim.
Sometimes, an insurance adjuster will hire a private investigator to follow an injured worker and video them without their consent. Unfortunately, in many cases, there is nothing illegal about this practice. The purposes of such surveillance is for the insurance adjuster to try and obtain evidence that the injured worker is not injured to the extent that is claimed or to try and catch the injured worker engaging in activities beyond the light duty restrictions issued by the treating physician. Such video graphic evidence can be very damaging to a workers’ compensation case and can provide a solid basis to terminate the receipt of wage replacement benefits.
Therefore, if you suspect you are being followed, immediately do the following:
- Contact your workers’ compensation attorney for further advice;
- Do not approach the private investigator. It is far better that you know where they are and who is watching you. Alerting a private investigator to the fact you know they are watching will only guarantee a different investigator will be placed on the case, which will be more difficult to detect.
The most important way, however, to protect yourself from any evidence collected by a private investigator is to make sure you comply entirely with the light duty restrictions issued by your treating physician. The clients of Thomas & Thomas tend to be very hard working individuals who push themselves, wanting to return to their pre-injury status. While this work ethic is commendable, it does not help a workers’ compensation case. Rather, listening to your treating doctor and complying with their orders is the best way to ensure your wage replacement and medical benefits continue in an uninterrupted fashion while you are disabled.
This is the first error many injured workers make, simply accepting the doctor their employer or insurance adjuster wants them to see.
The unfortunate truth is that not are all doctors are equal; some are better for an injured worker than another, and some are more insurance company friendly. The Workers’ Compensation Commission recognizes this and as a result the prevailing law is that “an employer or insurance company” cannot medically manage an injured workers’ medical care.
The “rub,” however, is that once treatment from a physician is accepted—regardless of how an injured worker gets there—and a treating relationship has been established (in many cases this may occur in just a couple of visits) the Workers’ Compensation Commission then recognizes that physician as the authorized treating physician. The authorized treating physician enjoys a very special status with the Workers’ Compensation Commission. This becomes the sole doctor--and any referrals that doctor makes--whose medical treatment the insurance carrier must make payment. In most cases, the opinion of the authorized treating physician also is given the most amount of weight when the Commission decides a case. Often the outcome of a case hinges upon their opinion. While a change in treating physician is possible, it is in most cases very difficult without the insurance adjuster’s consent. For this reason, the choice of treating physician is a very important decision, and it should only be made after careful contemplation of which doctor is the best for an injured worker.
To combat being sent to a physician,“friendly” to the insurance company, the Workers’ Compensation Commission requires that if medical care is authorized by the employer or insurance company that an injured worker be provided with a panel of 3 doctors from which to choose. A valid panel must be comprised of doctors from different practices, who are specialists in the field of the injury, and are within a reasonable distance from the home of the injured worker. If medical care for your injury has been authorized, it is the responsibility of the injured worker to request a medical panel and not simply accept the doctor his or her employer wishes that worker to see. This also applies to any referrals an authorized treating physician makes. If a referral does not direct an injured worker to a specific provider, the insurance carrier must provide a valid panel to the injured worker from which to choose.
If, however, the claim has been denied or insurance company refuses to issue a panel of medical providers, the injured worker is free to choose any doctor as their authorized treating physician. If the insurer then refuses to pay for those medical visits, reimbursement of medical expenditures related to the work place accident and injury can be pursued before the Commission.
In the Commonwealth of VA, every employer who hires 3 or more employees, and those employees are in regular service in VA, must have workers’ compensation coverage. Significant fines and penalties are assessed against an employer who is required to have workers’ compensation insurance, fails to have the required coverage, and has an employee who is injured in a work related accident. It is essentially an insurance plan that covers employees in the event of an accident. This is why a workers’ compensation claim is not truly filed against the employer, but really against the insurance company the employer has contracted with.