Tuesday, September 11, 2012

Appealing a Virginia Workers Compensation Case a Day Late? Can it be done?

In a recent case, the Virginia Workers' Compensation Commission had to decide whether a late appeal by a claimant of an unsuccessful hearing decision should be allowed. In a very close case, the Deputy Commissioner had denied the claimant's claim on August 1, 2011. The claimant had 30 days to file for a review (appeal) pursuant to Virginia Code Section 65.2-705. The claimant mailed a request for review (appeal) to the Commission on August 29, 2011 prior to the expiration of the 30 day deadline. The Three Commissioners who handle reviews ruled this appeal was not timely since it did not reach the Commission until September 5, 2011 which was more than 30 days after the date of the decision.

The Three Commissioners ruled the appeal would have been timely if it had been filed by certified mail by August 31, 2011 or if had been filed electronically by Webfile by August 31, 2011. However, mailing by regular mail on August 29, 2011 meant it was not "filed" until September 5, 2011.

The claimant understood the Rule to mean an appeal had to be filed in 30 days of the denial of the claim. In fact, the claimant thought he had complied with the Rule by mailing an appeal to the Commission on August 29, 2011 which was prior to the expiration of the 30 day deadline. But the claimant made a fatal error. He thought the act of "mailing" an appeal was the same as "filing" an appeal.
Unfortunately, this is a case where ignorance of the law does not excuse the mistake in thinking "mailing" an appeal is the same as "filing" an appeal. This also illustrates Abraham Lincoln’s famous saying, "He who represents himself has a fool for an attorney."

Call or Email Jerry Lutkenhaus now for a free consultation about your case.

Jerry Lutkenhaus has been a practitioner of Virginia Workers Compensation law in the Richmond, VA for over 35 years. He was given an "AV" rating by Martindale-Hubbell in 2003. Richmond Magazine has listed Mr. Lutkenhaus as one of the best lawyers in central Virginia. There is more information at www.virginiadisabilitylawyer.com or www.geraldlutkenhaus.com. In 2010 he was given AVVO's highest rating of "superb" in their system. http://www.avvo.com/ attorneys/23230-va-gerald-lutkenhaus-1814627.html.

This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

<a rel="author" href="https://plus.google.com/u/0/115689204023522204448">Gerald Gregory Lutkenhaus on Google+</a>

Tuesday, September 4, 2012

Virginia Workers' Compensation Claim Can Sometimes Be Caused by Use of a Cell Phone

Many people in Virginia may think using a cell phone at work is not an accident like a fall or like a back injury caused by lifting a box. Virginians may also think you cannot get workers’ compensation for just using a cell phone at work.

However, a recent case in Virginia has indicated in some circumstances using a cell phone can be an "accident" under workers’ compensation law in Virginia. In an October 4, 2011 decision of the Virginia Court of Appeals called Wythe County Community Hospital v. Turpin the court faced the cell phone accident issue. Turpin, a nurse, kept a cell phone in her car for use at work. She was traveling between work sites on a mountain road when her cell phone rang. She reached for the cell phone which caused her to be distracted. She then skidded on the road and crashed her car and suffered an injury. The issue the Court had to decide is whether Turpin’s reaching for the cell phone was a work risk caused by her employment with the Hospital.

In a 2-1 decision, the Court said Turpin’s accident did arise out of her employment with the Hospital. The Court decided Turpin had to monitor her employer calls on the cell phone while she was working. Her attentiveness to the cell phone caused her to be distracted and caused her motor vehicle accident.

The dissenting judge would not have awarded compensation. He said there was no proof the telephone call came from her employer. He said even though Turpin had dedicated her phone to only receiving telephone calls from her employer the accident causing telephone call could have come from elsewhere.

The Turpin case shows in Virginia in some circumstances use of a cell phone can cause an accident which can result in workers’ compensation benefits. Even though Turpin may have been negligent in causing her car accident, her negligent act did not prevent her from receiving compensation because she was trying to an act required by her employment.

In summary, there may be peculiar circumstances involving your use of a cell phone at work that can result in a compensable workers’ compensation case. Certainly, if you are on a personal telephone call, you cannot expect to recover workers’ compensation benefits. But if you can show a connection between the cell phone call and your work you may recover as did Nurse Turpin.

Jerry Lutkenhaus has been a practitioner of Virginia Workers Compensation law in the Richmond, VA for over 35 years. He was given an "AV" rating by Martindale-Hubbell in 2003. Richmond Magazine has listed Mr. Lutkenhaus as one of the best lawyers in central Virginia. There is more information at www.virginiadisabilitylawyer.com or www.geraldlutkenhaus.com. In 2010 he was given AVVO's highest rating of "superb" in their system. http://www.avvo.com/att orneys/23230-va-gerald-lutkenhaus-1814627.html

This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Virginia Workers' Compensation Hearing Loss Victory

J. Campbell came to my office and said he had been injured at work. He had fallen from a ladder and suffered a head injury. Due to his skull fracture he also lost 100% of the hearing in his left ear. We filed a claim for payment of this hearing loss with the Virginia Workers’ Compensation Commission. The insure defended claiming the "hearing loss" was not permanent since the doctor had recommended surgery that would improve the hearing in the bad ear. However, the proposed procedure ( "BAHA" procedure) is an operation to conduct hearing from the "good" ear to the "dead" ear. It does not correct or improve the function of the "dead" ear. The Commission accepted our argument and awarded Campbell compensation for a 100% loss of the left ear on August 28, 2012.

Call Jerry Lutkenhaus now for a free consultation about your case.

This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Jerry Lutkenhaus has been a practitioner of Virginia Workers Compensation law in the Richmond, VA for over 35 years. He was given an "AV" rating by Martindale-Hubbell in 2003. Richmond Magazine has listed Mr. Lutkenhaus as one of the best lawyers in central Virginia. There is more information at www.virginiadisabilitylawyer.com or www.geraldlutkenhaus.com. In 2010 he was given AVVO's highest rating of "superb" in their system. http://www.avvo.com/ attorneys/23230-va-gerald-lutkenhaus-1814627.html