The workers compensation doctor has released me to light duty work, but I am still in a lot of pain, and I am not sure I will be able to do my job. Am I still entitled to my workers compensation checks if I refuse to go to work?

Answer: The answer to this question really depends on several things.


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In Virginia, the main thing that depends on is whether or not you have obtained an Open Award from the Commission for your injuries. That being said, if your doctor has approved a job for you to return to, you cannot refuse to perform your job without expecting the employer to move to cut off your benefits.

The Open Award is a very important component of the achievement of a successful workers compensation claim in Virginia. It is usually accomplished by your filing of a Claim for Benefits.

An Open Award is an Order issued by the Virginia Workers Compensation Commission that recites that you are entitled to ongoing workers compensation benefits at a certain dollar amount each weak, unless and until you return to work. In addition, it will recite that you are entitled to lifetime medical benefits for the part or parts of the body that you claimed were injured in the accident.

Once the Claim for benefits is filed with the Commission, along with the Medical Records proving that you cannot work, the Commission will typically issue an Order giving the employer 20 days to either agree to provide you with benefits or fight your claim. If they agree, they will typically send you an Award Agreement, requesting that you sign and return it to the comp carrier.

You must review this Agreement very carefully.

Once that Agreement is returned to the Commission (and do not assume the Comp insurance company will do that) an Award will have been entered by the Commission, usually setting forth an entitlement to lifetime medicals for the body parts injured, as well as workers compensation, at the rate of 2/3rds of your average weekly wage, for as long as you are unable to work.

It is imperative that you know whether or not you are under an Open Award. It can make all the difference in the way that your case moves forward.

If you are under an Open Award for more than 30 days, and you have been released with restrictions, your benefits should continue; however, depending on your age and severity of your injuries, the employer may then get you into a program of Vocational Rehabilitation to get you back to work. This program presents other dangers to your case, which we will discuss in connection with other questions.

If you are NOT under an Open Award, then as soon as you are released to some kind of work with restrictions, your benefits will likely be cut off.

At that point, unless you file a Claim for benefits, and can prove to the Commission that you are marketing your residual capacity very hard, you will be unable to obtain any further compensation benefits. This means that you must look for a minimum of FIVE jobs per week that are within your physical restrictions, and document all of the details for each job attempt. The Commission will look for many excuses to discount each entry or job that you claim to have inquired about, so it is better to actually look for more.

Obviously, this is not a favored approach to getting your comp benefits in Virginia. The better approach is to do everything possible to obtain an Open Award while you are being held completely out of work by your doctors. Then, once that Award is entered, the burden is on the employer, not you, to prove that you can get a job in order to get your benefits stopped. If you are under an Open Award, the burden will not fall on you to show that you can’t get a job.

If you are released to light duty before you get an Award, it will be much harder to continue your benefits.

Even if you are receiving benefits, do not be ‘lulled o sleep’ by that fact. If you are not under an Open Award, you are wide open to having your benefits cut off at any time.

NOTE: Even if you have signed an Award Agreement, this is NOT the same as an Open Award and means absolutely nothing unless it is converted into an Open Award that is entered by the Workers Compensation Commission.