Virginia Workers’ Compensation – FAQs

Posted on Friday, December 2nd, 2016 at 2:00 pm    

Who is covered under the Virginia Workers’ Compensation Act?

The Virginia worker’s compensation law covers every person who works in the service of another for hire or as an apprentice. This includes aliens and minors. It includes people whether the contract or apprenticeship is in writing or employed and even whether the contact is legal or not. The only exception is for workers who are not employed in the usual course of the trade, business, occupation or profession of the employer. The employer must generally have more than 3 employees regularly employed to run the business. If not, then the employer is not covered under the Act or required to have workers compensation insurance.

What kinds of injuries are covered under the law?

Injuries that can be identified by a single occurrence. Workplace injuries are generally covered in Virginia if:

  • They were caused by an accident
  • They were work related
  • The occurred during work as opposed to away from work and
  • The injuries must have been caused by the accident. The injury normally be due to physical change in the body.

Virginia also covers occupational diseases such as respiratory problems or exposure to toxic chemicals. The disease must be due to work though there is no need to show that specific accident caused the disease. Medical doctors usually are called in to show that the diseases were proximately caused by workplace conditions.

Ordinary diseases generally are not covered unless it can be shown with reasonable medical certainty that the disease resulted from work and not caused outside of work, and that one of the following applies:

  • The disease was a natural consequence of an actual occupational disease or
  • The disease was “an infectious or contagious disease contracted during ones’ employment in a hospital, sanitarium, laboratory or nursing home, or while otherwise engaged in the direct delivery of health care, or during employment as emergency rescue personnel” or
  • is characteristic of the employment and was caused by conditions peculiar to the employment.

Carpal tunnel syndrome is compensable in Virginia while other types of repetitive stress injuries are not. Hearing loss is also compensable.

Common types of occupational illnesses include asthma, mesothelioma, bronchitis, chronic encephalopathy, black lung disease and pneumoconiosis.

What workplace injuries are not compensable under Virginia workers’ compensation law?

Except for carpal tunnel syndrome, repetitive stress injuries are not compesable. Aside from diseases that do not qualify as occupational diseases; back pain, neck pain, and spinal pain are not compensable unless they relate to a specific identifiable accident. In other words, if you’ve been working in a difficult job for many years and you develop a bad back due to that, you do not have a case unless you can pin the pain and problems to one, specific injury and that injury meets the other criteria for a workers comp injury.

Are emotional claims compensable?

As with other workplace injuries, if a worker suffers psychiatric or emotional problems due to a specific physical injury, employees may be treated by a psychiatrist or psychologist – and have the bills paid for. Many workers do suffer emotionally if they, for example, suffer an amputation. They are understandably distraught over the loss of the limb, the stigma that they perceive comes with being an amputee, and of course they ponder all the things they may never be able to do again. Depression and anxiety may result, and as long as there is a proper referral by the treating physician, the treatment for such issues is completely compensable. In fact, in some cases, the proper psychiatric treatment can mean the difference between a person’s return to the workforce or complete disability. In addition, sometimes, a good psychiatrist can provide protection against overzealous nurse case managers who try to force injured workers back to work before they are ready.

In some instances, even if there is not a traceable, physical accident, psychiatric damages might be compensable if they were a direct natural consequence of some work experience – such as seeing a shooting or other violent incident. What is key in those cases is the traumatic event must be outside the normal experience one would expect for such an occupation.

When must Virginia Workers’ Compensation claims be brought.

  • For accidents, generally two years from the date of the accident.
  • For occupational diseases, generally two years from the time the worker learns of the illness or five years from the date of the last workplace exposure – whichever date is earlier.

Some exceptions do apply. It is best to consult with an experienced Virginia workers’ compensation lawyer as soon as possible.

Does the employer have any defenses?

Not every workplace injury is compensable. Some employee misconduct can negate the right to benefits. Common defenses include:

Injuries that are self-inflicted such as suicide are not compensable. Other workplace injuries that are not paid in Virginia are:

  • Willful misconduct such as intentionally ignoring safety law if it’s clear that:
    • The safety rule was proper
    • The employee knew of the rule
    • The rule was meant to protect the employee
    • The employee intentionally ignored the rule
  • Injuries due to the employee’s use of drugs or alcohol if the employer can show the intoxication or inebriation cause the worker’s injuries.

Employers do have to give formal notice of any defense in compliance with the law. Attorney Joe Miller Esq. can explain if employers failed to give a proper deadline.

Can employees be punished for fraud or knowingly making false statements or failing to make necessary disclosures

Employees who knowingly make a false statement may be found guilty of a felony. They may also lose their right to benefits. Claimants who are getting benefits have a duty to notify their employer of any significant changes that might affect his/her right to benefits. Examples include returning to another job, remarriage, being sentenced to jail, or other consequences. Employees who obtained workers’ compensation funds through fraud may be liable for any overpayments.

Can an employer fire me if a file a workers’ compensation claim?

No. Employees have a direct right to file a work injury claim in Virginia. If a worker is fired or an employer threatens an employee, the worker should immediately meet with a Virginia worker’s compensation attorney to understand his/her rights.

What if I’m an independent contractor?

Workers who are not employees cannot generally request workers’ compensation insurance. Whether a worker is an independent contractor or an employee is not always clear. A Virginia work injury attorney can explain whether you might qualify as an employee. Even if the employer says you are an independent contractor, you may be legally an employee and have work injury rights.

We see this issue litigated many times as many employers think that they can reduce their business expenses by claiming that all of their employees are in fact independent contractors. They may even attempt to have the employee sign some kind of contract that says the employee agrees that he or she is an independent contractor. These “contracts” are not effective. An employer cannot “contract away” it’s obligations under the Virginia Workers’ Compensation Act. The Virginia Workers Compensation Commission is going to look at the “facts on the ground.” Some of the factors that can persuade a Commissioner that an employee is really an employee are:

  • Does the employer have the right to control when, where, and how the worker does his/her job?
  • How is the worker paid, how are expenses paid, who supplies the work tools?
  • The general work relationship. Is there a written contract? Did the worker get benefits such as insurance, vacation, or pensions?
  • Can the employee be fired for misconduct?
  • Does the employee have to follow a set of rules set forth by the employer
  • Does the employee have to report to work at a specific time each day?

 

Speak with an Experienced Virginia Work Injury Lawyer Today

Virginia workers’ compensation attorney Joe Miller Esq. can answer all of your work injury questions. He has successfully represented thousands of injured workers during his twenty-five plus years of experience. For a free consultation, please call me at (888) 694-1671 or complete my contact form.

Where Workplace Accidents Happen Most Often

Posted on Monday, October 31st, 2016 at 2:00 pm    

Accidents at work happen for many reasons. Employers should be aware of the various causes and take steps to try to avoid these types of workplace accidents or, at least, take preventive steps to try to reduce them.  A common misconception is that the employer has to be negligent or “at fault” for the accident at work. This is false. Workers in North Carolina and Virginia do not have to prove that the  employer was responsible for a workplace accident in order to have a valid workers compensation case. The worker just needs to prove a workplace accident did occur at some specific moment in time, and the injuries were caused by the workplace accident. Still, the best way employers can help their workers is to take safety precautions to prevent the accident from occurring.

Attorney Joe Miller is an experienced North Carolina and Virginia Workers’ Compensation attorney. When a common or uncommon workplace injury occurs, he has the skills and tenacity to file, negotiate, and litigate your work injury claim. He also understands that often times the type of accident is an indicator of the types of injuries that occur and the typical time frame for how long the worker will likely be out of work.

The Most Common Types of Workplace Accidents

·       Workplace violence. Many injuries are caused when workers get into arguments with other workers or when a worker has mental health issues and that instability leads him/her to lash out at other workers. In Virginia, if the employee was an unwitting victim of horseplay or violence, he or she still has a valid claim. On the other hand, if the worker was a willing participant, this may invalidate the claim, especially if the argument had nothing to do with the work at hand.

·       Repetitive Stress or noise exposure. Many workers suffer injures due to repetitive motions such as working with computers or performing the same tasks over and over and over again in an assembly line or using hand tools. These are known as occupational disease injuries. Employees who suffer this type of stress often get injuries such as carpal tunnel syndrome, or hearing loss.  Better equipment and better training, and rule enforcement can help reduce these types of injuries. Employees who suffer repetitive motion injuries, hearing loss, or some other injury they believe was caused by conditions at work need to speak to an experienced Workers’ Compensation lawyer because there are very specific things that need to be proven in order to qualify for a valid occupational disease case.

·       Getting clothes or body parts entangled in machinery. Clothing, hair, fingers, shoelaces, and other items can get caught in the machinery which can then cause severe injuries including loss of a body part. Employers should make sure workers are educated about the risks of working with some types of equipment and take necessary preventative steps. Examples of safety measures include better equipment and educating the employee about proper work techniques. We often see some of the most severe injuries where employers cut corners by failing to properly maintain equipment, failing to utilize machine safety guards, deliberately disengaging safety devices, or failing to have any written, enforced rules or procedures for hazardous work duties.

·       Car and truck accidents. Many workers such as construction workers or delivery drivers use vehicles for their job.  Vehicle accidents can be deadly or cause serious injuries.  Workers should be advised on the local driving rules and on how to properly operate the vehicles – especially trucks. Employers should have clearly defined and enforced safety rules which require the use of seatbelts at all times.

·       Lack of industry standard simple safety measures. Many workers get injured because they are concentrating so hard on immediate physical tasks that they fail to see objects that can hurt them. For example, a worker may not see a door, table, while carrying a heavy load, or not see a person while driving a forklift around a corner.  Also Employers should create a work environment that minimizes these types of accidents. For instance, the installation of wide-view mirrors at strategic points in a plant or factory can increase visibility of oncoming vehicles and people. Creating ergonomic environments where employees with restricted vision will have a path clear of obstacles is also helpful.

·       Falling Objects. Employers should make sure that shelves aren’t overstocked and that items hanging from the roof or other high places are secure. Workers should be advised to wear helmets in certain work areas. Injuries can include brain damage, head trauma, and pain in the area where the object strikes the worker.

·       Slips and Falls. This type of workplace accident is very common. Workers can slip or trip when there are loose objects lying around, the floors are slippery, there are tears in carpets, or for a variety of other reasons. Injuries can include broken bones, soft tissue injuries, bruises, concussions, and lacerations. In severe cases, a worker may suffer death or permanent injury.

·       Falls from High Places. Workers who use ladders, work on roofs, or work on stairwells can slip and fall. While protective gear can help, anyone who falls from a high height is likely to suffer a long-term injury. Proper spotting and use of safety harnesses as required by OSHA is essential. We have seen too many workers get injured in this fashion when again, employers are willing to cut corners and not create or enforce strict rules in relation to working at heights.

·       Overexertion. Many workplace accidents happen simply because the worker is being pushed too hard, and we often see this occur in the heat. When workers are tired, they are much more likely to trip, fall, fail to see other objects, or fail to use proper techniques, not to mention suffer heat stroke or a heart attack. Fatigue is a major cause of workplace accidents and is one of the most preventable – making sure the employee gets enough rest, and is provided with appropriate opportunities for cool-down and hydration.

Additional causes of workplace accidents

The US Department of Labor, through the Occupational Safety and Health Administration (OSHA), keeps regular records of why workplace accidents occur.  In addition to the causes listed above, some other causes of workplace accidents, according to OSHA, include:

·       Poor communication – especially about safety issues

·       Failure to provide respiratory protection

·       Faulty equipment including up-to-code scaffolding equipment, bad ladders, and machines without safety guards

·       Forklift malfunctions and misuse

·       Electrical failures such as improper wiring

The list or reasons workplace accidents occur is virtually never-ending.  Still, trying to categorize them makes it easier to work to prevent them. Some additional causes, that are human related, include:

·       Taking shortcuts.  Workers should never place speed over safety. Failing to take proper precautions can cause injury and death. Unfortunately, employers often encourage this behavior in the name of higher profits.

·       Failure to clean up. Workplace supervisors should inspect the workplace before work starts each day to make sure the place is free of debris, that equipment functions properly, and that all loose elements such as overheard storage are secure.

·       Poor training and preparation. Workers should be trained on how to use each piece of machinery or equipment. They should also be trained on everyday workplace safety issues to avoid injuries and to respond to them quickly when they do happen. There should also be written enforceable rules, and daily safety meetings prior to work beginning to address specific concerns of employee and management.

·       Failure to address mental and emotional issues. Many workers have personal concerns that should be addressed. Workers who are thinking about their family members or other aspects of their personal lives are not focusing on safety. Employers should make some effort to help workers have the time to address personal issues so the worker can be safe and more productive.

Speak with a trusted Workers’ Compensation Today

If you were hurt in any type of workplace accident, do not delay. Even though the employee does not have to prove the employer was negligent, it does help a great deal to be able to show how the accident occurred. You may be leaving out a critical detail that could mean the difference between your employer covering or denying your case.  For our free, quick, elite, 7-step case evaluation,  phone Joe Miller Esq.  at (888) 694-1671 or fill out his contact form. Attorney Miller represents injured workers in both Virginia and in North Carolina.

Calculating Your Basic Compensation Benefit if You Are Hurt on the Job in Virginia

Posted on Monday, June 27th, 2016 at 2:00 pm    

The Virginia Worker’s’ Compensation website includes an online calculator to help you determine the basic amount of lost income you are due. The best course of action is to have your attorney determine the amount. An injured work lawyer knows what information is needed and how all the calculations are done. Some of the key factors in deterring basic compensation are:

  • The date of the injury
  • Your average weekly wage
  • Your partial weekly wage
  • Your compensation rate
  • The start date of compensation
  • The end date of compensation
  • The total amount of weeks you are due compensation
  • The total amount of compensation due
  • The total amount of compensation paid

Get help with your work injury case today.

Getting the right result in you work injury case requires an experienced Virginia work injury lawyer. Someone who knows the broad arguments but who also pays attention to the details. Joe Miller Esq. has helped thousands of clients get a just recovery for work injuries and illnesses in Virginia. Call Joe Miller at the Work Injury Center today for a consultation at 888-694-1671. You can also complete his contact form.

Types of Disability in Worker’s Compensation Brain Injury Cases

Posted on Friday, November 27th, 2015 at 2:00 pm    

Does the patient have a disability due to a brain injury? Generally, workers get paid 2/3rds of their average weekly wage for as long as they cannot work, for up to 500 weeks. In addition, workers determined to be a permanently disabled are entitled to lifetime pay. Once MMI is achieved the worker will be evaluated to determine the exact nature of the disability.

  • Temporary Total Disability. (TTD) In this case, the worker does have a disability but eventually may be able to return to work. The worker will be evaluated by the treating doctor who will typically refer the employee for a functional capacity exam of some kind, when the doctor determines the employee has reached maximum medical improvement. (MMI). In the case of a brain injury, the examination may include a neuro-psychological evaluation and other tests to determine brain function and cognitive impairment.

 

  • Temporary Partial Disability (TPD) If the injured worker returns to work his pay rate may be much lower. For example, before the injury a worker may have earned $800 a week. After MMI, the worker may only earn $500 a week. The worker will continue to get 2/3rds of the difference or $200 (800-500 x 2/3) for as long as he or she works in that job.

 

  • Permanent and Total Disability. This can be pertinent in brain injury cases in both Virginia and North Carolina, which have a special provision for permanent and total disability. The Commission must find that the worker is permanently and totally disabled due to the brain injury. In this case, the worker cannot return to work in any capacity and the brain injury must be severe, as evidenced by severe sensory, communication, motor, functional, or neurological Here, the worker gets 2/3rds of his/her average weekly salary for life. It is not limited to the 500 weeks.

The difference between a temporary vs. permanent and total disability can thus be very substantial. It is thus imperative that the right classification be determined. It also essential that workers should not enter into any settlement agreement until they have reached MMI and the right classification is made.

North Carolina and Virginia Lawyer Joe Miller Knows Workers’ Compensation Law

Injured or ill workers need an experienced lawyer who knows the worker’s compensation laws. The proper classification of a work-related injury can mean the difference between getting and not getting large sums of money. Workers who suffered a work-related injury in North Carolina or Virginia need the help of an experienced law. Attorney Joe Miller has the experience to advocate for all your rights. To make an appointment or discuss your case, call Lawyer Joe Miller today at 888-694-1671 and ask for me, Joe Miller, or complete my online form

Difference between Related and Unrelated Causes under the NC Workers Compensation Death Benefit Laws

Posted on Wednesday, August 26th, 2015 at 10:27 am    

If the cause of the worker’s death is unrelated to the worker’s injury or occupational illness, then the payout is usually small. On the other hand, if the cause of death is related to the employee’s injury or occupational illness, then the payout is 400 to 500 weeks of 2/3rds of the average weekly wage plus burial benefits. For this reason, if there is reasonable argument that the death is related to the injury or job illness, then it makes sense to try to prove that causation did exist. (more…)

The Role of the Employee’s Lawyer in Vocational Rehabilitation

Posted on Thursday, July 2nd, 2015 at 2:16 pm    

The employee is entitled to hire an attorney to represent his worker’s compensation cases. Our firm strongly suggests every claimant have qualified Virginia legal Workers Compensation counsel. The Guidelines from the Virginia Worker’s Compensation Commission directly address the role of the employee’s attorney as follows:

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Virginia Guidelines for– Meetings between Employee and the Job Counselor

Posted on Monday, June 29th, 2015 at 2:14 pm    

The Virginia Guidelines for meetings between the employee and the vocational rehabilitation counselor are regulated as follows: (more…)

Ladder-related falls a leading workplace hazard, study finds

Posted on Monday, May 12th, 2014 at 9:43 pm    

A study by the Centers for Disease Control and Prevention (CDC) has revealed that falls involving ladders are a leading cause of workplace injuries and deaths in the U.S.

The CDC’s analysis of 2011 national statistics found that 20% of all workplace fall injuries were from ladder falls. The CDC also found that 43% of all fatal falls recorded within the last decade involved ladders.

In 2011 alone, 113 fatalities from workplace ladder falls were reported. Furthermore, over 34,000 non-fatal ladder fall injuries were treated in emergency rooms across the country.

Dealing with the physical, emotional, and financial repercussions brought about by a slip or fall while at work can be very frustrating. If you plan on pursuing workers’ compensation in Virginia or North Carolina, an attorney at Joe Miller Law, Ltd. might be of help. Contact us today at 888-694-1671 to learn more about your legal options.