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The Employee's Guide to Workers’ Compensation in Virginia

Corey R. Pollard, Esq.

Tel: 804-251-1620 Email: cpollardjba@gmail.com Website: http://cpollardlaw.com

2015 © Corey R. Pollard. All Rights Reserved

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Table of Contents Chapter 1 – Why Should You Read This Book? …………………………………….….. 4 Chapter 2 – Learn About Corey Pollard and Jenkins, Block & Associates …….….. 5 Chapter 3 – What is Workers’ Compensation? ………………………………………….. 6 Chapter 4 – Do I Have a Workers’ Compensation Claim in Virginia? ……………….. 9 Chapter 5 – What Do I Do after I’m Injured? ………………………………………….... 11 Chapter 6 – Dealing with the Insurance Company ……………………………………. 14 Chapter 7 – Obtaining Medical Care ……………………………………………………... 15 Chapter 8 – Receiving Replacement Income for Lost Wages ………………………. 17 Chapter 9 – Going Back to Work …………………………………………………………. 19 Chapter 10 – Vocational Rehabilitation Services – Friend or Foe? ………………... 20 Chapter 11 – Reaching Maximum Medical Improvement and Receiving Benefits for Your Permanent Impairment ………………… 22 Chapter 12 – Workers’ Compensation Settlements …………………………………... 25 Chapter 13 – Fatal Work Injuries …………………………………………………………. 27 Chapter 14 – What’s Next? Do I Need a Workers’ Compensation Attorney? ……. 28

CONTACT COREY POLLARD TODAY FOR ANSWERS TO YOUR VIRGINIA WORKERS’ COMPENSATION QUESTIONS

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Chapter 1: Why Should You Read This Book? The stakes are high in workers’ compensation claims. If you win, you and your family get financial security and you will receive the medical treatment you need to try to get back to work. If you lose, you and your family will face financial devastation and an uncertain future. Workers’ compensation claims are also complicated. At a minimum, each claim involves three different parties with three different goals - the employee, the employer, and the workers’ compensation insurance company. There are also nurse case managers, vocational rehabilitation counselors, and consulting physicians you will have to deal with to get the benefits you deserve. These are individuals who will not have your best interests in mind. The Virginia Workers’ Compensation Commission is in the middle, adjudicating each claim. This is a book for Virginia’s workers. I wrote it because I do not think the playing field is level when it comes to Virginia workers’ compensation. I used to represent some of Virginia’s largest employers and insurers, and I’ve seen the games they play with people’s lives. The insurance companies, armed with attorneys, plenty of cash, and nothing but time, have an unfair advantage when it comes to fighting your workers’ compensation claim. This book is your way to fight back. It will provide you with insight into the Virginia workers’ compensation system and will answer some of the questions you may have if you are injured at work because of a sudden accident or a diagnosis of disease caused by your workplace. The information inside will help you understand the workers’ compensation system in Virginia and give you some insider tips on building your case. This book is not meant to be considered legal advice. Every workers’ compensation claim is different and requires a thorough evaluation of the facts to determine the best outcome. If you have suffered serious injuries and have lost time from work, contact a workers’ compensation lawyer immediately.

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Chapter 2: Learn About Corey Pollard and Jenkins, Block & Associates I am an experienced workers’ compensation and Social Security disability attorney who manages the Richmond, Virginia office of Jenkins Block & Associates, a firm that has helped thousands of injured and disabled workers get approved for workers’ compensation and Social Security disability benefits. We obtain successful results by providing aggressive and bold legal representation based on strong communication and straight-forward advice. We work on getting you compensated while you work on recovering physically and emotionally. Based in Baltimore, Jenkins Block operates four offices across Virginia and Maryland. You can find us not only in Baltimore and Richmond, but also in Hagerstown, MD and Cambridge, MD. I grew up in Newport News, Virginia, in a small business family. I am a member of the Virginia State Bar, the Virginia Trial Lawyers’ Association (VTLA), the Workers’ Injury Law & Advocacy Group (WILG), and the National Organization of Social Security Claimants’ Representatives (NOSSCR). I am a graduate of the College of William & Mary, and earned my law degree from the University of Richmond School of Law. I enjoy hanging out with my wife, Leigh, and watching the Washington Redskins in my spare time.

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Chapter 3: What is Workers’ Compensation? Workers’ compensation is an insurance program created by the Virginia General Assembly in 1919. Virginia was the thirty-seventh state to enact such a program. This program is governed by the Virginia Workers’ Compensation Act (“the Act”), and covers on-the-job accidents, illnesses, and death. It provides wage replacement and medical benefits to employees who are injured in the course of employment. The Workers’ Compensation Commission (“the Commission”) is the state agency that oversees workers’ compensation in Virginia. The Commission enacts rules and regulations that must be followed by employees, employers, insurance carriers, health care providers, vocational rehabilitation counselors, and attorneys. These rules are designed to ensure fairness in the process. The Commission’s judicial department decides disputes between parties within the workers’ compensation system. At present, the Commission is led by three Commissioners and an Executive Director. The Commissioners, all of whom are former workers’ compensation attorneys, are appointed to six-year terms by the General Assembly. The three Commissioners now serving are Roger L. Williams, Wesley G. Marshall, and R. Ferrell Newman. Williams is a former workers’ compensation defense attorney, which means he represented employers and insurance companies in defending against claims filed by injured workers. On the other hand, Marshall is a former claimants’ attorney, which means he helped injured workers file claims for benefits and get approved. Newman is considered the neutral representative; he represented both employers and employees when he was in private practice. The Commission’s headquarters are located at 1000 DMV Drive, Richmond, VA 23220. It also has regional offices in Virginia Beach, Fairfax, Manassas, Harrisonburg, Roanoke, and Lebanon. Visit the Commission’s website at www.vwc.state.va.us for more information. Who is required to carry workers’ compensation insurance? Employees do not have to purchase their own workers’ compensation insurance. Employers with three or more employees regularly working in Virginia are, however, required to purchase workers’ compensation insurance from private insurance companies, or meet the state’s requirements to be self-insured.

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What types of accidents and injuries does workers’ compensation cover? Workers’ compensation insurance is designed to cover most workplace injuries, no matter who is at fault. That is why workers’ compensation is referred to as a “no fault” system. There are, however, some exceptions:

● Injuries caused by intoxication ● Injuries that happen while the employee is committing a crime ● Injuries caused by the employee’s willful misconduct ● Injuries caused by repetitive stress

I’ve seen a variety of workplace accidents lead to covered injuries. The accidents tend to run the gamut, from motor vehicle crashes to collapsing floors to toxic exposure to overexertion while moving or lifting a heavy item. In a later chapter, we’ll examine covered accidents in closer detail. Do not decide on your own that your injury is not covered by workers’ compensation. Virginia workers’ compensation is complex and you may be eligible for benefits. Contact an experienced workers’ compensation lawyer before making the decision to give up your legal rights. This sounds good so far. Why does workers’ compensation get a bad reputation? Workers’ compensation is often considered a compromise between employers and employees. This is because the employee gives up his right to sue his employer for negligence in circuit court in exchange for a “no fault” system where the employer gives up some, but not all, of its defenses to the claim. This concept is easier to understand with an example. Let’s say you work as a forklift operator in a manufacturing warehouse. One day you are walking through the warehouse to get to your forklift, when suddenly you slip and fall on a liquid. To recover damages in a personal-injury lawsuit, you would have to prove that the person or company that owns the property was negligent in not having a dry floor. The fact that you slipped and fell is not enough to win. In a workers’ compensation case, however, you would not have to prove that the property owner was at fault. The simple fact that you slipped and fell on a liquid at work is enough to get benefits. You do not have to prove that someone else did something wrong to prevail.

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In my opinion, workers’ compensation is not a fair compromise for employees. Under the workers’ compensation system, injured employees are supposed to receive wage-loss benefits and medical treatment in a quick and efficient manner following a work accident. But not all work accidents are covered under workers’ compensation. Insurance companies and employers have successfully lobbied the General Assembly over the years to carve out exceptions that do not help injured employees and that make it more difficult for injured employees to receive the benefits they deserve. Further, insurance companies and employers use their vast resources to fight valid claims. Though workers’ compensation is supposed to be a “no fault” system that leads to the quick payment of wage-loss benefits and medical care, most injured employees have to deal with insurers’ delay and denial tactics. These tactics come at a time when the injured employee and his or her family are most vulnerable financially, emotionally, and physically. So what are we left with? A workers’ compensation system where injured employees give up their right to receive compensation for pain and suffering and have to deal with a delay in the payment of the benefits they are owed or even with the possible denial of their claim.

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Chapter 4: Do I Have a Workers’ Compensation Claim in Virginia? The most common question I get from injured workers is, “Do I have a workers’ compensation claim?” This is a simple question that requires a complicated analysis to answer. Each and every workers’ compensation claim is different. A seemingly minor and insignificant fact may be the difference between receiving wage-loss benefits and medical treatment and struggling financially and physically because your claim is not covered under the Virginia Workers’ Compensation Act. Always consult a workers’ compensation attorney before making an important decision about your health and ability to provide for your family.

To receive workers’ compensation benefits in Virginia, you must answer “yes” to the following two questions:

1. Am I an “employee” as that term is defined in the Virginia Workers’ Compensation Act?

2. Did I suffer an injury by accident arising out of and in the course of my employment?

Am I an Employee? I’ve spoken to many injured employees who didn’t think they are were eligible for workers’ compensation benefits because they worked part-time or were paid on commission. I’ve also spoken to employers who argued that my client was not entitled to workers’ compensation benefits because they had only been on the job for a few days at the time they were injured. In each scenario, the injured worker was owed benefits. Most of the time, this analysis is straightforward. One notable exception is the construction industry. Many cases involving injured construction workers feature a dispute over whether the injured person was an employee or an independent contractor. An experienced workers’ compensation attorney can develop the case and try to show that you are entitled to benefits.

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Did I suffer an injury by accident arising out of and in the course of my employment? This is really three questions in one. The first factor is an “injury by accident.” You must show a specific trauma or event that led to your injuries. You cannot allege an injury caused by repetitive stress or a long-term exposure. There are no straightforward rules for what constitutes a concrete, specific event. For example, an exposure lasting 30 minutes may be compensable but an exposure lasting 35 minutes may not. The same is true of an injury caused by lifting four items vs. five items. These cases are nuanced and require the skill of an experienced workers’ compensation attorney. The second factor, “arising out of the employment,” examines whether your employment contributed to your injury. It is not enough for you to have been injured at work; your job must have contributed to the accident and injury, and it must have increased your chance of getting hurt when compared to the general public. Injuries caused by normal activities like walking and traversing stairs are usually denied because they do not arise out of a specific risk of the employment. The third factor, “in the course of the employment,” means that you must have been injured while performing your job or some activity that benefited your employer. Most injuries occur at work; however, your employer and its insurance company may argue that this factor is not met if you were injured on a business trip, at a business event, or while running an errand. You won’t necessarily lose, but it is a good idea to seek the advice of a workers’ compensation attorney. The bottom line is that if you are injured at work, you should always contact a workers’ compensation attorney to see if you have a claim for benefits. It doesn’t matter what type of work you do or where you work – nursing at a local hospital, clerical work in an office, roofing on a construction site, or lifting at a warehouse – your pain or disease may be the result of an on-the-job injury. Determining the exact cause may be difficult, but this shouldn’t keep you from pursuing your legal rights under workers’ compensation.

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Chapter 5: What Do I Do after I’m Injured? The following information summarizes the process for reporting your work accident: Step 1: Give Written Notice of Your Injury to Your Employer After you’ve been injured, you need to report your injury to your supervisor or manager immediately, and you need to do so in writing. The sooner you report your work injury, the better. Make sure you give your employer a detailed, written report that includes: what happened, when it happened, where it happened, who witnessed the accident, and what caused the accident. If you wait more than 30 days to report the accident, you may forfeit your right to workers’ compensation benefits. You should give written notice to your employer even if you think your injury is minor. Seemingly small injuries that you think will resolve with rest and time can turn into major injuries that permanently affect your ability to work and make money. Don’t give up your legal rights early in the process. And don’t worry about your employer getting upset. Workers’ compensation is a legal right, not a fringe benefit. Your employer likely has the legal obligation to carry workers’ compensation insurance and cannot fire you for filing a workers’ compensation claim. Step 2: Seek Medical Treatment You should seek treatment with a doctor right away. If your employer has an on-site doctor or nurse, visit that person immediately. If not, seek medical attention with the nearest healthcare facility. Make sure you tell the doctor or nurse treating you how you were injured and give a detailed summary of the work accident. If you don’t tell the healthcare provider that you were injured at work, this will raise a red flag with the workers’ compensation insurance company and may give it a reason to deny your claim and delay your receipt of benefits.

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Step 3: File a Workers’ Compensation Claim with the Commission Filing a claim with your employer and its insurance company is not the same as filing a claim with the Virginia Workers’ Compensation Commission. It doesn’t matter how much notice and discussion you have with the employer and its insurance company, the Virginia Workers’ Compensation Commission will not consider your claim as being filed until it receives a completed copy of the Claim for Benefits form. You can visit our web site at www.cpollardlaw.com to download these forms. There are four different ways to file your claim with the Virginia Workers’ Compensation Commission:

● In person: You can deliver the Claim for Benefits Form to any of the Commission’s office locations.

● By mail: You can complete the Claim for Benefits Form and mail it to the Commission’s headquarters.

● By fax: You can complete the Claim for Benefits Form and fax it to 1-804-367-6124.

● By WebFile: You can use the JCN and PIN number issued to you by the Commission and create a WebFile account. You can then file a Claim for Benefits online.

Time is important in your workers’ compensation claim. You must file a claim with the Virginia Workers’ Compensation Commission within two years of the date of your accident. The same is generally true if you are diagnosed with a work-related disease. Step 4: Get a Workers’ Compensation Lawyer The insurance company is not on your side. No matter how friendly the adjuster may seem, he or she is looking out for the employer’s interest, not yours. That’s why you should contact a workers’ compensation lawyer to make sure you are getting all of the benefits you are entitled to. An experienced workers’ compensation lawyer will also evaluate your injuries and accident and analyze how much money your case is worth. A workers’ compensation lawyer could be the difference between financial security for you and your family and accepting a low offer from the insurer and struggling with the aftermath of your work injury.

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Step 5: Follow Your Doctor’s and Lawyer’s Advice Make sure you follow your doctor’s advice and comply with prescribed medical treatment. Remember, the goal is to restore your health and get you back to work. You should also follow your lawyer’s advice. He or she is trying to maximize the value of your workers’ compensation claim. Sounds Easy. What’s the Catch? Though the workers’ compensation process seems straightforward, it is anything but in most cases. There are numerous traps that can cost you the benefits you deserve. It is also important to remember that the injured employee has the burden of proving that he or she is entitled to workers’ compensation benefits. You must exercise your rights and build your case to receive your benefits. This is why it is a good idea to contact a workers’ compensation lawyer. You don’t want to miss out on financial security and health coverage because you didn’t know a procedural rule or didn’t understand what was required of you.

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Chapter 6: Dealing with the Insurance Company A representative from the employer or insurer will contact you within a few days of your work accident. You may even receive a call on the same day you are injured. This is because the insurance company wants to get to you before you retain a workers’ compensation attorney. Usually a claims adjuster is on the other end of the line. The adjuster is the person who will review, investigate, and manage your workers’ compensation claim for the insurance company. The adjuster is not affiliated with the Virginia Workers’ Compensation Commission and you never know how they will act. Most adjusters are pleasant and easy to work with, while others are aggressive and rude. No matter their demeanor, remember that the adjuster is there to protect the insurance company’s interest, not yours. Unfortunately, the best result for the insurance company is usually a bad result for you. The Recorded Statement When you get that call from the adjuster, he or she will want to hear how you were injured and record everything you say. Do not continue this conversation until you have spoken with an experienced workers’ compensation attorney. I speak to several injured workers each year who have already given a recorded statement and left out a key fact when speaking with the adjuster. The absence of this key fact was the reason why their claim was denied by the insurance company. Contrary to popular belief, you are not obligated to give a recorded statement to the insurance company. If you decide that you want to, make sure you contact a workers’ comp attorney so that you will know what to say and how to say it. A strong showing during the recorded statement can prevent months of delays and denials.

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Chapter 7: Obtaining Medical Care One of the main goals of the Virginia Workers’ Compensation Act is to provide you, the injured worker, with quality medical treatment so that you can one day return to work. If you sustain a covered work injury, your employer and its insurance company must pay for medical treatment as long as the treatment is related to your work injury and your treating physician considers it reasonable and necessary care. Unfortunately, the rules governing medical treatment often lead to disputes because insurance companies do not want to pay for costly medical care. If your employer has an on-site nurse or physician, you will be directed to that person. That person will become your treating physician unless he or she refers you to another doctor, which is what usually happens with severe injuries. If your employer does not have an on-site nurse or physician, the employer should provide you with a panel of at least three physicians from which to choose. The one you select becomes your treating physician. It is a good idea to consult with a workers’ compensation attorney before selecting your panel physician because most experienced workers’ comp attorneys will know which physicians are more sympathetic toward the injured worker and his or her pain and which tend to favor the employer and see the injured worker as just another patient to get rid of. If your employer does not provide you with a panel of physicians within a reasonable amount of time post-accident, or if the employer denies that your work injury is compensable, you are allowed to choose your own treating physician. This is also a good time to consult a workers’ compensation attorney who is familiar with the reputations of local physicians. It is common for the treating physician to refer his or her patient to a specialist. If your physician refers you to a specific specialist, that specialist will become your treating physician. If your physician says you need a referral to a specialist, but does not provide a specific name, the employer must provide a panel of at least three specialists from which to choose. Do not let the fact that the insurance company has paid for your first few visits to a general practitioner and specialist lull you into a false sense of security. Employers often pay for the first month of medical treatment, then turn around and cut off medical care because their “investigation” concluded that the claim is not covered or that the medical

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treatment is not reasonable, necessary, or related to the work injury. The most common reason given for cutting off treatment is that the injured employee had a pre-existing condition. This, however, is a weak excuse that will usually not hold up in court. You are entitled to medical coverage under workers’ compensation if your work accident aggravated or accelerated your pre-existing condition. This section would not be complete without defining medical care. Besides treatment, surgery, medication, diagnostic tests, and therapy, medical treatment also includes reimbursement for co-pays, mileage to and from appointments, and other medical equipment. In fact, if you need modifications made to your home or vehicle because of your work injury, your employer may have to pay for the modifications. Cooperating with the Nurse Case Manager Your employer or its insurance company will likely assign a nurse case manager to your claim. In theory, the nurse case manager’s job is to make sure your medical treatment is progressing and that you are on the path to recovery. In practice, however, the nurse case manager is paid by your employer or its insurance company, and, as such, has your employer’s best interest in mind. Most nurse case managers will attend your doctor’s appointments and make suggestions to your physician on treatment and work restriction issues. Though nurse case managers are allowed to do this, you are allowed to have a private examination with your doctor without the nurse case manager present. You should request privacy at each examination and tell your doctor about any concerns you may have regarding the nurse case manager’s tactics. An experienced workers’ compensation attorney can provide an extra layer of defense against the nurse case manager’s attempts to reduce your claim’s value.

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Chapter 8: Receiving Replacement Income for Lost Wages If you reported your injury in a timely manner, filed a Claim for Benefits with the Virginia Workers’ Compensation Commission, and had your claim approved, either because the insurance company accepted your claim or because the Commission found in your favor, you may be entitled to weekly temporary total disability benefits under two different scenarios. First, if you are taken totally out of work by your treating physician because of the work injury, you will receive temporary total disability benefits. Temporary total disability benefits are paid weekly and equal two-thirds of your pre-injury average weekly wage. Your pre-injury average weekly wage is based on your earnings during the 52-week period prior to your work injury. It includes any bonuses, overtime pay, or other benefits you may have received. If you had been with the employer for less than 52 weeks at the time you were injured, your total earnings will be divided by the amount of time you had been there to come up with your average weekly wage. A word of warning: the insurance company may try to convince you that you can return to work even though your treating physician has totally disabled you. Don’t listen to the insurance company! Your treating physician’s opinion is the one that counts. Second, you may also receive temporary total disability benefits if your treating physician restricts you to light-duty work, but you are unable to earn a living because your employer does not have any light-duty work available or has terminated you. As long as you market your residual work capacity adequately per the Commission’s light duty guidelines, you may receive temporary total disability benefits while restricted to light duty. This means that you must apply to a certain number of jobs each week and reasonably believe that you can perform these jobs given your restrictions. Employers and their insurance companies will often try to pick apart your job search efforts and show that you did not apply in good faith. An experienced workers’ compensation attorney can help you through this process and advise you on how to market your residual capacity. There is a seven-day waiting period in all workers’ compensation cases. This means you are eligible to receive temporary total disability benefits once you miss seven days of work. If you miss more than twenty-one days of work, you will get paid for the first seven day of work you missed.

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Can I receive temporary total disability benefits for the rest of my life? In most cases, no. Unless you are eligible for permanent total disability benefits, which are discussed later on, you can receive a maximum of 500 weeks of temporary total disability benefits. You will not receive 500 weeks of disability benefits automatically. Your benefits can be terminated for any number of reasons: a full-duty release to work; going back to work; etc. If, however, you suffer a serious injury, you may receive permanent total disability benefits for life. The threshold to receive these benefits is high. You must meet one of the these three scenarios: a) you lost the use of both hands, both feet, both arms, both legs, both eyes, or a combination of the above in the same work accident; (2) you sustained an injury that resulted in total paralysis; or (3) you suffered a brain injury that prevents you from finding gainful employment. These cases are often complex and require creativity, so contact a workers’ compensation lawyer to evaluate your options. I have light-duty restrictions and returned to work, but am making less. Do I have any options? Yes. If you are making less money because of your light-duty restrictions (i.e., a lower wage or fewer hours), you are eligible for temporary partial disability benefits. This benefit is paid at a rate equal to two-thirds of the difference between the amount you are making post-injury and your pre-injury average weekly wage. It is important to note that you can’t take just any light-duty job and expect to receive temporary partial disability benefits. You must make a good-faith effort to replace your pre-injury hours and wages.

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Chapter 9: Going Back to Work One of the most difficult aspects of workers’ compensation to understand is how to protect your benefits if you return to work or if you have to go back out of work because your symptoms increase. With severe injuries requiring surgical treatment, it is common to have periods of total disability interrupted by your attempts to go back to work. You need to know the procedural rules to protect your benefits at all times. If your workers’ compensation claim is accepted and you start receiving temporary total disability benefits, these benefits will end if you return to work and start earning a paycheck. The key is to make sure you do not return to work at the wrong time and harm your ability to receive benefits that you may need in the future. There are two possible scenarios where you may return to work following an on-the-job injury. The first scenario is when your injury has healed completely, leaving you with no restrictions and allowing you to return to your pre-injury job. The second scenario is when you are released to work with light-duty restrictions because of your on-the-job injury. In other words, you can work, but you will never get back to the level where you were before the injury. Even if you have no restrictions following your work injury, you should keep in close contact with a workers’ compensation attorney to protect your future benefits. It is possible that your condition will worsen or become aggravated once you return to work, and this change in condition may require medical treatment. If your condition worsens to the point that you are taken out of work or given restrictions that cannot be accommodated, you may be entitled to additional temporary total disability or temporary partial disability benefits. If you have restrictions because of your injury, knowing whether you should return to work can be confusing. Employers often offer injured employees jobs that are not suitable given the employee’s restrictions. If you return and get injured, you may forfeit your right to additional workers’ compensation benefits because you were performing work outside of your restrictions. There are a number of factors that must be considered when determining if you should return to work with restrictions. An experienced workers’ compensation lawyer can help analyze these factors and provide you with advice designed to maximize your claim’s value.

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Chapter 10: Vocational Rehabilitation Services-Friend or Foe? The workers’ compensation laws in Virginia allow the employer and its insurance company to provide vocational rehabilitation services to you if your treating physician releases you to work with restrictions that do not allow you to perform your pre-injury job. According to the Virginia Workers’ Compensation Commission, vocational rehabilitation has two goals. The first goal is to restore the employee’s ability to work. The second goal is to decrease the employer’s liability with regard to future disability compensation. I used the word “allow” above because, though vocational assistance sounds good in theory, it is often used as a weapon against injured workers. Most, if not all, of my clients want to go back to work. But if you are paying close attention, you will have noticed that the goal is not to find you a job that you want. Nor is it an opportunity for you to pick a new career and ask the employer to train you in that industry, though that does happen from time to time.

In practice, insurance companies use vocational rehabilitation to pressure the injured employee into a low settlement or to give up. Many vocational rehabilitation counselors push the boundaries and violate the rules. Check out the Virginia Workers’ Compensation Commission’s Vocational Guidelines, which are available at www.cpollardlaw.com, and see if your vocational counselor is violating the guidelines. If so, contact a workers’ compensation attorney immediately.

Why do so many vocational counselors push the limits? Because the insurance companies want them to. Indeed, the main goal of vocational rehabilitation seems to be trying to find a way to get the injured employee to make a mistake. All the insurance company has to do is allege that the injured employee made a mistake and the Commission will allow the insurance company to stop paying benefits. Though the injured employee may be able to get benefits restarted, it will usually take a hearing to do so. This means the injured employee has to go several months without income. Because of these underlying intentions, I always ask to attend the first meeting between my client and the vocational professional. I want to make the vocational professional aware of the Commission’s Vocational Rehabilitation Guidelines and make it clear that I will be monitoring their actions toward my client. If the vocational counselor steps out of line, I will file a motion to terminate services with the Virginia Workers’ Compensation Commission.

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After the first meeting, the vocational professional will conduct an interview with you. He or she will take inventory of your past work experience, your educational background, the nature of your work injuries, and your current light-duty restrictions. He or she is then supposed to come up with a game plan to try to find you a job that you are physically and mentally capable of performing. Dealing with vocational professionals in the workers’ compensation setting takes experience and knowledge of the laws. Do not make any rash decisions on your own. Consult an attorney who can guide you through this tough time.

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Chapter 11: Reaching Maximum Medical Improvement and Receiving Benefits for Your Permanent Impairment If you injured a “scheduled” body part, you may receive permanent partial disability benefits in Virginia. To determine your eligibility, you need to know the following:

1. If you’ve reached maximum medical improvement (MMI). 2. The exact body part injured. 3. Your permanent impairment rating as determined by your physician. 4. Your pre-injury average weekly.

Maximum Medical Improvement (MMI) You will not receive permanent partial disability benefits until you’ve reached MMI. MMI simply means that you’ve healed as much as you’re going to heal, and additional medical treatment outside of pain management won’t improve your functioning. Your treating physician will have the final say on whether you’ve reached MMI. The Exact Body Part Injured This factor seems straightforward, but trust me, it can be anything but simple in some cases. Cases involving the leg, hand, and arm require an in-depth analysis of which aspect of the body part was injured and how it impacted you. Some doctors even have a hard time deciphering which body part they should rate for permanent impairment. Virginia is unusual, and, in my opinion, unfair, in that it has decided that the back and neck are not “scheduled” body parts. This means you cannot receive permanent partial disability benefits for your back or neck injury unless your attorney can prove that your injury causes problems with your legs, arms, hands, or feet. The Permanent Impairment Rating as a Percentage Once you’ve reached MMI, your treating physician should give you an impairment rating or refer you to another physician who specializes in these types of evaluations. If your treating physician doesn’t take either of these actions, you should contact a workers’ compensation attorney immediately so that you can receive a referral to a claimant-friendly physician who does impairment ratings.

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A word of warning: your treating physician may underestimate your permanent impairment. Remember, in most cases your treating physician will have come from the panel of physicians offered by the insurance company. Doctors typically do not get on the panel by favoring injured workers over employers. When you receive your permanent impairment rating, you should take the report to your attorney for evaluation. If the impairment rating does not accurately reflect the severity of your injuries and functional limitations, your attorney will refer you for a second opinion with an appropriate specialist. Calculating the Amount of Permanent Partial Disability Benefits You Will Receive In most workers’ compensation cases, your check for permanent partial disability benefits is calculated by multiplying the number of weeks allotted to the body part injured by the General Assembly by the percentage impairment you receive multiplied by two-thirds of your pre-injury average weekly wage. Let’s take a look at how this works in practice. Let’s say you tore your right rotator cuff while lifting a heavy item at work in 2013. You earned $800 per week at the time you were injured. After surgery and twenty sessions of physical therapy, your treating physician stats that you have reached maximum medical improvement (MMI), but that you have permanent restrictions of no lifting greater than 10 lbs. Your treating physician also gives you a permanent impairment rating of 35% to the right arm. How much is this worth? You will receive $37,335.52 in permanent partial disability benefits. We arrive at this figure by multiplying your pre-injury average weekly wage of $800 by two-thirds. This gives us a compensation rate of $533.36 per week. Next, we multiply your compensation rate by the number of weeks the General Assembly has allotted to arm injuries, which is 200 weeks. This gives us a figure of $106,672. Finally, we multiply $106,672 by .35, which is the permanent impairment rating you were given as a percentage. This gives us $37,335.20, which is how much you will receive in permanent partial disability benefits. If you have received impairment ratings from two different doctors, the calculation is more complicated. The Commission will schedule a hearing where it will elicit testimony from you and review the conflicting impairment reports. After the hearing, you will receive a written decision with the Commission’s decision. Do not try to handle this hearing on your own. Talk to an experienced Virginia workers’ compensation attorney who can present your case in the strongest manner possible.

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Other Facts about Permanent Partial Disability Benefits in Virginia Permanent partial disability benefits do not take your pain and suffering into account. The focus of the examination will be on your functional limitations. If you are receiving temporary total disability benefits, you cannot receive permanent partial disability benefits concurrently. Most injured workers receive permanent partial disability benefits after they return to full duty or go back to work in a light-duty position with restrictions. Finally, you may receive your permanent partial disability benefits in a lump sum payment. But, if you choose to go this route, the insurance company is entitled to a discount. This is why I do not recommend taking the lump sum. You are giving up money if you do so.

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Chapter 12: Workers’ Compensation Settlements It is sometimes in your best interest to settle your workers’ compensation claim. There are a number of reasons why you may want to settle: to avoid the risk of losing before the Virginia Workers’ Compensation Commission or appeal; to get rid of having to deal with an insurance carrier who consistently delays approval of reasonable medical care; the need to receive a lump sum because of outstanding bills; or, the desire to see your own physicians and treat with whomever you want. No matter the reason, it is important to consider the below items when thinking about settlement. First, no one can force the insurance company to settle your claim. Nor can anyone force you to accept a settlement offer. The decision to resolve a claim must be mutual. Second, the Virginia Workers’ Compensation must approve the settlement. The settlement process, like most other parts of the workers’ compensation system, requires patience. It usually takes 4 to 6 weeks from the date your claim settles to receive your lump sum check. Third, you must consider Medicare, child support, and the Social Security Administration’s (the SSA) interests when settling your claim. This topic is beyond the scope of this book, but an experienced workers’ compensation attorney will be able to handle this issue and prorate your lump sum settlement in a manner that takes Medicare and the SSA’s interests into account. Fourth, in my experience injured employees receive more money when they hire an attorney to help settle their claim. It is a good idea to contact an attorney so that he or she can evaluate your claim and handle the settlement negotiations. Now that you know the important factors, let’s take a look at two more questions you may have:

1. When should I settle? 2. How much is my case worth?

Most injured employees should think about settling their workers’ compensation when they reach MMI. Your attorney will have the information he or she needs to determine your future medical care, predicted wage loss benefits, and permanent partial disability.

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Some cases should settle sooner. If you have private health insurance or have a weak claim, you should consult an attorney to see if settling your claim on a disputed basis is your best option. Likewise, you should consider settling your workers’ compensation claim if you are approved for Social Security disability benefits. I’ve spoken with many potential clients who have heard from others that they will get more money if they go to a hearing rather than settle. This is not true in workers’ compensation cases. The Virginia Workers’ Compensation Commission does not have the authority to award a lump sum settlement and benefits are paid out on a pay-as-you-go basis. This is very different from personal injury claims, which usually settle for much larger dollar figures. The increased value of personal injury claims is due in large part to the fact that personal injury victims can be compensated for pain and suffering. Do not attempt to settle your claim on your own. The value of your case is based on your future medical treatment; the likelihood that you will win your case; the amount of permanent partial disability benefits you will receive; your pre-injury earnings; and, the amount of time it will take you to rejoin the workforce. An experienced workers’ compensation attorney will have the knowledge to produce a settlement demand package that increases the value of your claim.

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Chapter 13: Fatal Work Injuries Even with improved safety procedures and equipment, there are still deaths in Virginia each year because of work-related accidents. These deaths are difficult and bring financial uncertainty to the deceased’s dependents. Workers’ compensation benefits may be available to these dependents. In claims where the death was caused by a compensable work-related accident, the deceased employee’s dependents may receive a stipend toward funeral costs and temporary total disability benefits. Depending on how many dependents there are and their relationship with the deceased, these claims can become confusing and heavily disputed. Because of their nature, it is a good idea to contact a workers’ compensation lawyer who can try to figure out a resolution that provides closure and financial security. Fatal work injuries are difficult for everyone involved. The deceased worker’s family not only has to worry about how they will survive financially but also how they will move forward emotionally. Chances are good that the deceased employee’s co-workers are also left shaken up because of the on-the-job death and that they will need counseling and support from the employer. Do not try to go through this time alone. Contact a workers’ compensation attorney who will fight for your benefits while you try to move forward with your life.

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Chapter 14: What’s Next? Do I Need a Workers’ Compensation Attorney? Choosing the right lawyer for your workers’ compensation claim is stressful. You know how important it is that you receive all of the benefits you are entitled to, and you don’t want to make the wrong decision. You also don’t want to hire a lawyer who fails to add value to your claim and instead takes money out of your pocket. Below are a few things to think about before making the decision to hire a workers’ compensation attorney and deciding which one to choose. The Cost I represent injured workers on a “contingency fee” basis. This means that the amount of my fee depends on how successful I am in resolving your case. If we are not successful, then I don’t get a fee. If we are successful, then I will receive a percentage of whatever you are awarded by the Virginia Workers’ Compensation Commission. This fee is usually 20 percent of the gross value of your claim. I like this arrangement because it means that you and I have the same interest – maximizing the value of your claim. It also allows you to pursue your legal rights without having to pay a bunch of money up front, money that you probably don’t have because you are out of a job and your medical bills are piling up. Because I don’t charge an hourly rate, I have no interest in delaying the process so that I can charge you more. My goal is to maximize the value of your claim and to do so efficiently. There are usually some expenses involved in pursuing your workers’ compensation claim. These expenses include: obtaining medical records, deposing physicians and expert witnesses, and obtaining supportive treating source statements, just to name a few. We do our best to keep expenses down. You are responsible for these expenses, though your workers’ compensation attorney will usually front them for you and ask you to pay them back after your claim is resolved successfully. Choosing the Right Attorney Remember, you are fighting to replace your lost income and to get the medical treatment you need to recover. You can’t afford to make a mistake, because doing so will be too

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costly for you and your family. That is why you should hire an attorney to protect your rights. Here’s what to look for:

x An attorney who focuses on workers’ compensation cases. Many attorneys say they are workers’ compensation attorneys, even though they handle only five to ten workers’ comp claims per year. The law is always evolving and it is impossible to keep up-to-date unless you frequently handle workers’ comp claims. You want an attorney who handles at least fifty workers’ compensation claims per year and who regularly battles the insurance companies. I’ve represented insurance companies in the past and know what types of workers’ compensation attorneys scare them. I use this knowledge to maximize the value of injured workers’ claims.

x An attorney who stays informed. Check to see if the attorney is a member of organizations that focus on keeping informed with workers’ compensation laws and changes. For example, I am an active member of the Virginia Trial Lawyers’ Association – Workers’ Comp Division and the Workers’ Injury Law and Advocacy Group.

x An attorney who provides information. Check out the attorney’s website to see if workers’ compensation is a major part of his or her practice and if he or she seems to know what they are talking about.

x An attorney who provides a free consultation. The best way to get to know someone is to talk to him or her. Give my office a call about your workers’ compensation claim and you’ll get a free consultation.

What Will Corey Pollard and Jenkins Block & Associates Do For You? We believe in providing a personal touch and straightforward legal advice. Below are just a few of the things we do in workers’ compensation claims:

x Interview the potential client and provide a free consultation. x Provide educational material and an overview of the workers’ compensation

system so that the client knows what to expect as his or her claim evolves. x Obtain the client’s medical records, educational records, wage records, and

personnel file. x Work with the client’s doctors to obtain supportive medical opinions. x Depose the necessary physicians and witnesses. x Prepare the client for and defend the client in his or her deposition. x Obtain questionnaires and treating source statements from the client’s health care

providers. x Handle all paperwork required by the Commission.

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x Monitor the client’s case and provide status reports. x Answer all of the client’s questions about workers’ compensation. x Deal with the claims adjuster assigned to the client’s case. x Deal with the attorneys hired by the insurance company and the employer. x Keep track of unpaid medical bills while the client’s case is pending and advise

debt collectors of the client’s rights under the Virginia Workers’ Compensation Act. x Prepare the client for and represent the client in all evidentiary hearings before the

Virginia Workers’ Compensation Commission. x Prepare a settlement demand package on the client’s behalf and negotiate a high-

dollar settlement. Contact Us Today for a Free Consultation Corey Pollard is here to help Virginia’s injured workers. Contact us at 804-251-1620 or cpollardjba@gmail.com for a free consultation.

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