Saturday, April 19, 2014

Win Your Virginia Workers' Compensation Case Before the Hearing Commissioner!

In Virginia an injured worker has his/her case heard by an official called a deputy Commissioner.This official is the hearing commissioner who hears the evidence in a courtroom like setting and issues a judgment called an "opinion" in the worker's case.

This opinion decides if the worker has a compensable accident and what benefits if any the worker is entitled to under the Act. In effect, the deputy commissioner acts like a judge and jury in the worker's case.

The worker can file an appeal from the deputy commissioner's opinion. The worker or the insurer has 30 days from the date of the opinion to file such an appeal which in Virginia is called a Request for Review.

The case then goes before three commissioners who review the opinion of the deputy commissioner. This is usually done on written arguments. Occasionally, the three commissioners will hear oral arguments.

Recently, I checked to see in 2014 how many deputy commissioner opinions had been reversed or overturned. I was struck by the fact over 90% of the deputy commissioner opinions had been affirmed. One reason is because the three appellate commissioners defer to the deputy commissioners on matters involving credibility of witnesses.

In conclusion, I took from this survey that Virginia workers' compensation cases are won or lost in front of the deputy commissioners. Do not expect to overturn a deputy commissioner opinion on an appeal. The statistics and the law are totally against appellants.

Friday, March 28, 2014

In Virginia is every accident at work compensable?

In Virginia not every accident at work results in a compensable accident. These are some that are not recognized under Virginia law:

1.  If you stumble on a stairway at work but nothing at work contributes to the fall such as a wet spot, something on the floor, bad lighting, etc. then the fall on the stairs is not compensable.

2.  If you are found unconscious at work and cannot remember how you were injured, you could lose your claim under the doctrine of the "unexplained accident."

3.  If you are injured in a fight at work that you started, you can lose your claim.

4.  If someone personally assaults you that has nothing to do with work even though it occurs at work that may not be a compensable Virginia accident.

5.  If your injury is really a pre-existing condition, then this can lose you your claim.

6.  If your accident is caused by an Act of God such as a tornado, then even you are injured at work you may lose your claim under Virginia law.

7.  If your injury is caused by a safety violation on your part, this can use you your claim under a Virginia law.

8.  If your injury is caused or contributed to by an illegal substance or alcohol, then you can lose your injury claim under Virginia law.

In summary, these are just some of the injuries at work in Virginia that may not be compensable.

Sunday, February 2, 2014

Is slipping on wet pavement a compensable accident under Virginia Workers' Compensation law?

I once had a case in which an RN was hurrying across the street from a church parking lot to St.
Mary's Hospital where she worked. The Hospital had rented space in the church parking lot for its employees. The RN slipped on the wet pavement and hurt her left knee which required an operation. The insurer denied the claim on the grounds there was nothing defective about the pavement. Also, it said the rain was an Act of God and the insurer was not responsible for Acts of God. I responded by stating the path from the parking lot to the hospital was the only way the RN could get to the hospital. Since the Hospital required her to park in the church parking lot the Hospital was responsible for the path she had to take and any dangers she faced in taking this path. The Virginia Workers' Compensation Deputy Commissioner agreed and we won the case.

Since it is the Super Bowl today, one wonders if an NFL football player can get workers' compensation?

In Virginia a Redskin football player asked for worker's compensation for his knee injury suffered in a Redskin game. The insurance company denied the claim on the novel theory that a football injury was not an "accident" rather it was an expected outcome of playing the violent sport of football. An injury was an inevitable outcome. The insurance company argued an accident had to be an un-expected outcome. The Virginia Supreme Court denied this argument and basically said even though it was a violent sport an injury on the field of play still met the definition of "accident" under Virginia Workers' Compensation law.

Tuesday, January 28, 2014

Can you get Workers' Compensation if you are involved in a fight at work in Virginia?


Bill came to my office looking for help. He had been in a fight at work and had suffered a right rotator cuff tear. He wanted to know if he would receive workers' compensation for his injury. I asked how had the fight happened? Bill said he was the Lead Man on his construction crew. He had given one of the crew (George) an order to fetch supplies. George said he was no one's slave and Bill was not his foreman and he refused the order. A little later when Bill again asked George about the supplies George cussed Bill and started a fight. As a result of the fight Bill suffered his bad shoulder.

I told Bill Virginia follows the "arising out of" rule. So, if his shoulder injury arose out of his work then he had a good chance. Since George had taken a swing at Bill in a direct response to an order from Bill I felt comfortable in telling Bill he had a good workers' compensation claim.

Are you allowed to pick your own doctor if you are an injured worker in Virginia?

You are Dick and you have a Virginia on the job foot injury. Dick wants to know if he can go to his own doctor. The answer is "no" he cannot . However, Dick can request that the insurer provide him a panel of three doctors from which he can pick a doctor. Also, if Dick needs a specialist, he can request the panel contain three specialists. In this case Dick has a foot injury. So, can request a panel of three foot specialists. The panel idea is supposed to protect Dick, the worker, from ending up with the insurer's pet doctor. This does not always protect the worker. Especially, with orthopedists, the insurer can often find three insurance friendly orthopedists and "stack the deck" against the poor worker.

Are you compensated for mileage you incur in Virginia if you are an injured worker?

In Virginia if you are an injured worker and have a valid workers' compensation claim you are entitled to 55.5 cents a mile for any trips you need to make to doctors, therapists and hospitals. Also, if you are required to do a light duty job search, you also can claim mileage reimbursement for any mileage you have to incur in your job search. The only caveat in all of this is that you are not allowed mileage reimbursement for trips to the drug store.