Tuesday, September 17, 2013

What is an accident under Virginia Workers' Compenation law?



Photo of Gerald Gregory Lutkenhaus
I practice workers comp law in Virginia. I thus see many claimants who have suffered injuries at work. Virginia is strict on what is considered an accident. So, just because an accident occurred at work does not make the accident compensable. The accident must arise out of a specific incident at work. This is the so-called actual risk doctrine which is a contrast to the positional risk doctrine (which would only require the injury to occur at work). 
This comes up most often with people who do a repetitive activity at work and injure their back or another part of the body. Very often the claimant will not even know he is injured until the next day when he cannot get out of bed due to back pain. He then will contact his employer and say I was injured at work lifting those heavy widgets. Although this lifting of widgets undeniably caused the back injury, the claim will be denied on the basis the claimant was unable to pinpoint the precise widget that caused the injury. 
In order to make sure the claim is denied, the claims adjuster for the workers compensation insurance company will take a recorded statement as soon as possible after the alleged accident from the claimant and by leading questions will attempt to get the claimant to state the injury occurred due to repetitive activity and not due to any specific accident. If this adjuster is successful, the positional risk doctrine will have triumphed and the claim will be lost.
When a deputy commissioner hears this type of injury case, he will look at the recorded statement, the testimony of the claimants, the testimony of witnesses, and the history of the accident recorded in medical records. The deputy commissioner will then send out a written opinion deciding if a compensable accident has indeed occurred or if a non compensable repetitive lifting activity has caused the accident.
In the past claimant's attorneys tried to challenge the positional risk doctrine by claiming an injury should be compensable if the claimant could reasonably show it was caused by a work activity that occurred at work even if it occurred over a period of 2-3 hours. Unfortunately, this enlightened approach was rejected by the Virginia Supreme Court and the actual risk doctrine was again established as the Rule of Law in Virginia for work place accidents.
In summary, when I see claimants, I hope they can recall the 13th widget caused the "pop" in the back and the herniated disc. If so, we can move the case from the non compensable positional risk doctrine to a compensable actual risk doctrine 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/att orneys/23230-va-gerald-lutkenhaus-1814627.html

Saturday, September 14, 2013

Almost Losing Your Virginia Workers' Compensation Benefits!


Richard Roe (not his real name) had a problem. He suffered a back injury at work in Mechanicsville, Virginia. He had rods and plates inserted in his back. Despite this he was in chronic pain. He injured himself rolling over his tractor on a hill. He then moved to Arizona. The insurer then had a doctor release him to a light duty job although he could not work due to pain. When Richard missed the job appointment the insurer cut off his compensation and medical benefits and filed a claim with the Virginia Workers’ Compensation Commission. He then contacted me for help. We were able to show the "light duty job" was really not something he could do. Also, we had Richard re-apply for the "light duty job" to cure his alleged refusal. The insurer realized it was going to lose and offered us a favorable settlement of the case.
This case shows the claimant in a Virginia Workers' Compensation case always has to be vigilant. The insurer will often try to offer the claimant a light duty job he/she cannot in an effort to cut off the claimant's benefits.
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

When is a fall a Virginia Workers' Compensation Accident?


Bill came by the office last week. He had a question about his father's accident. It seems a month ago Bill's father fell off his tractor. He worked for a supply company. The foreman found Bill's father at 8:00 am in the morning behind the tractor. Bill's father was unconscious so the foreman called for an ambulance. Bill's father did not wake until a week later. He had no recollection of his accident.
Bill's father suffered a severe disability from the fall. Bill wanted to know if I could help his father. I agreed to investigate. I reviewed all of the medical reports. All of the doctors had recorded Bill's father had revealed no recollection of his accident.
The workers' insurance company had denied the claim.
I also spoke to the foreman. There were no other witnesses. The foreman said he had not witnessed the accident. He said most likely the accident happened between 7 and 8 am since Bill's father usually arrived at 7:00 am. He said he had no idea how long Bill's father had laid on the ground before he found him.¿
I told Bill we had a big problem. We had an unexplained accident. Even though Bill's father was found at work and was injured at work he did not receive any presumption that the accident was "caused" by work. This was so because the Virginia Supreme Court had refused to extend the death presumption to cases where the victim had survived the accident.
Regretfully, I had to tell Bill his father could not prove his case; fortunately, the insurer was a offering a settlement. Under the circumstances I advised Bill his father should take the settlement.
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.

Virginia Workers Compensation & the Light Duty Job Search


Photo of Gerald Gregory Lutkenhaus
In a recent case before the Virginia Court of Appeals, City of Fredericksburg v. Grijalva, Record Number 0833-12-2 (September 4, 2012), the Court dealt with an appeal by an insurer of a Virginia Workers’ Compensation Commission ruling favoring the claimant.
The insurer for the City attempted to reverse the award in favor of the claimant by asserting the claimant had failed to look adequately for light duty work. Although the claimant had not strictly followed the Commission guidelines in looking for work (http://www.vwc.state.va.us/portal/vwc-website/HelpfulResources/RulesRegulations) the Deputy Commissioner who observed the claimant’s testimony and demeanor had decided the claimant had made a "good faith job search."

This case is a triumph of substance over form. The claimant among other matters in her job search had not registered with the Virginia Employment Commission and had submitted some duplicate job applications. However, the Deputy Commissioner found she had done the best that she could do. The Full Commission decided it would defer to this "good faith: finding by the Deputy Commissioner.

This case illustrates the point that if the claimant can convince the Deputy Commissioner (who hears his or her testimony) he or she had done the best job she could under his/her particular circumstances the Full Commission will defer to the Deputy Commissioner.
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.  

Friday, September 13, 2013

Injured at work in Virginia & fired: what should you do?


You were injured on the job and now you are fired. Some tips.

1

Fired as retaliation for your accident

If you are fired as a retaliation for filing an injury claim, you have a right under Virginia Law (Section 65.2-308 of the Code of Virginia) to sue your employer. You can recover actual damages and attorney's fees in this type of lawsuit. You may have to contact a "wrongful discharge attorney" who specializes in employment law.

2

Fired for testing positive for drugs after your accident

If you are fired because you tested positive for drugs or alcohol at the time of the accident, you need to contact an experienced workers compensation attorney. The employer may have a right to fire you for a violation of its anti-drug policy but you still may be able to receive workers' compensation if the drugs or alcohol did not "cause" the accident. The attorney may be able to show by a pathologist your drug or alcohol level was not the "cause" of the accident.

3

Fired for misconduct after your accident

If you are fired after you return to work after an accident and are placed on light duty, you may lose your workers' compensation benefits if the employer can show you were fired for misconduct such as violation of a drug policy, absenteeism, insubordination, fighting, etc.

4

Fired for any reason

If you return to work with the same employer where you suffered your work injury, the employer may look for an excuse to fire you. Thus, you must be aware the employer may look for an legitimate reason to fire you when you return. Therefore, you must be extra careful that you do not give the employer a legitimate reason to terminate your employment such as absenteeism, tardiness, insubordination, fighting, etc.

5

Fired while on light duty

If you are fired from your job and you still have work restrictions as a result of your on the job accident, you can file with the Virginia Workers' Compensation Commission to go back on workers' compensation benefits provided the termination of employment was not due to your own misconduct and provided you are within two (2) years of the last date you received workers' compensation benefits.

Additional Resources

Summary, it is bad enough to be injured on the job. It can add "insult to your injury" if you are also fired as a result of your accident. There are certain things you need to know if this happens. I have listed some "tips" about this scenario. The main thing to know if this happens is you should first consult an experienced workers' compensation attorney and then perhaps a wrongful discharge attorney.
If you want a free consultation on your Virginia Workers' Compensation Case: call now at804-358-4766 or 1-800-256-8862 or email me at jervalaw@aol.com

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.

Don't make these seven (7) mistakes in your Virginia Workers' Compensation Deposition!


When a claimant has a workers' compensation claim, the insurer will often take the claimant's deposition. There are important factors to consider.

1

Tell the truth!

The worse mistake is to lie. A deposition is a statement under oath. A lie under oath can ruin your entire case.

2

Don't guess!

If you don't know the weight of the box you lifted, then don't guess. If you don't know the height of the ridge you tripped over don't guess. If your guess can be easily disproven, then it could taint your entire claim

3

Don't fail to Prepare!

You may given prior statements. You may have prior medical history. You need to review everything that may be relevant to your claim. Inconsistency between your current testimony and prior statements can ruin your case.

4

Listen to the question!

You need only answer the question that is asked. But to answer, you have to listen to the question. If you don't understand it, ask for the question to be repeated.

5

Review prior discovery of both sides!

There may be answers to interrogatories by both sides. There may be other depositions. Review them.

6

Don't volunteer anything!

A deposition is not the time to make speeches. You simply answer the questions. Anything you volunteer could ruin your case.

Can you sue your employer for a workplace accident in Virginia?



The Virginia Workers' Compensation Law was adopted in 1918. The law provides compensation for lost wages and medical benefits. The common law right to sue the employer for the work place injuries in Virginia was abolished. However, the employer lost the right to defend the accident on the basis of the worker’s contributory negligence or assumption of risk. Also, the worker did not have to prove the employer’s negligence caused his injury. As noted by the Virginia Supreme Court in Feitig v. Chalkey, 185 Va. 96 (1946), the principles of the Virginia Workers’ Compensation Law have been accepted by practically all of the States in the United States.
The principle restriction on recovery in a workers’ compensation case is that you cannot recover "pain and suffering" as you can in a personal injury case. The principle benefit may be a speedier but smaller recovery without resorting to costly litigation.
Of course, if the injury results from the actions of a third party, the worker can file a personal injury action against the third party provided the third party is not a co-employee. The usual example of this is if the worker is driving a company vehicle which is negligently struck by a driver of another vehicle. In this situation, the worker would have a workers compensation claim against his employer and a personal injury claim against the driver of the other vehicle. Also, if the injury was caused by defective equipment, then the worker could sue the manufacturer of the machine and workers compensation would not be a bar to this kind of product liability lawsuit.
In my workers' compensation practice, potential clients often ask "Why can’t I sue my employer for my injury?" The only response I can make is that the State of Virginia in 1918 like the other States in the United States at about this time decided that industry and labor were better served if employers were required to provide workers’ compensation insurance as a cost of doing business rather than the worker having to rely on the uncertainty of personal injury lawsuits. Thus, in almost all Workers Compensation Cases, you do not have a personal injury case as an additional remedy.
If you want a free consultation on your Virginia Workers' Compensation Case: call now at804-358-4766 or 1-800-256-8862 or email me at jervalaw@aol.com

Additional Resources

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. 

Can you get Workers' Compensation for Mental Stress in Virginia?


In my 30 years of practice as a Virginia Workers' Compensation Lawyer, I have had many claimants contact me and say my work or my supervisor is causing me mental stress. Many times these claimants have gone to a psychiatrist or a psychologist for treatment. Often, the impairment has become so severe they have been taken out of work. They want to know can they be compensated for their lost time through the Virginia Workers' Compensation system. They say (1) my stress happened at work and (2) my doctors say I have lost time and incurred medical bills due to this stress. They say why cannot I be compensated under the workers' compensation law?
The short answer is "NO" as a general rule mental stress is not compensable. Gradual infliction of mental stress by your work or by your supervisor is not an "accident" or a "disease" under the Virginia Workers' Compensation law. As defined by the Workers' Compensation Commission, an "accident" to be compensable must occur at a specific time and thus gradually occurring mental stress cannot qualify as an accident. It is also not an occupational disease unless it can be shown that mental stress is "characteristic" of only that employment which is normally an impossible burden. The Commission has said in the past problems associated with personnel and management are inherent in all employment.
The first exception to the above rule is if the claimant's work is in a particularly high stress occupation it is possible for a claimant to show his or her "mental stress" is characteristic of the employment. For example, the Commission has found an emergency dispatcher was employed in an occupation where stress was characteristic of the employment.
The second exception to this rule is if the claimant has a compensable "accident" or "disease" that aggravates or causes mental stress or depression then the aggravation may be compensable. The typical example of this is the worker who has a severe injury which results in chronic pain. The pain causes depression. In that instance, the depression will compensable. Of course, the treating physician must make the connection between the accident and the stress.
A third exception to the general rule that mental stress is not compensable is if the mental stress arises out of a single specific incident. A typical example of this would be the rescue squad worker who has to go to the scene of a horrible accident and develops a mental impairment due to the exposure to the accident. I had a case involving a school bus driver who had a student point a gun at her head and pull the trigger. The gun was not loaded but the driver developed a post traumatic stress disorder as a result of the incident and the Commission found her claim to be compensable.
In summary, even though your boss has treated you badly, harassed you and has made you go to a doctor and lose time from work, your mental stress is not compensable under the Virginia Workers' Compensation Act. Also, even though you have deadlines to meet which has caused you stress, it is not compensable in Virginia. Nonetheless, you should always check with an experienced Virginia workers' compensation attorney. Your problem may meet one of the exceptions I have listed above.
If you want a free consultation on your Virginia Workers' Compensation Case: call now at804-358-4766 or 1-800-256-8862 or email me at jervalaw@aol.com

Why You Have To Report Every Workplace Accident in Virginia


An injured worker suffers a scratch at work. Why should he report this as an injury? After all won't his fellow workers laugh at him and won't management ignore him? Won't he be considered a complainer?
This brings to mind the story of an "injured claimant" I represented him in a Virginia Workers Compensation hearing. The only defense raised by the insurance company was that the claimant had not reported his injury.
The day before Thanksgiving the claimant was in the shop. The claimant scratched his right thumb on a sharp piece of metal. The claimant knew about his duty to report every injury. However, he chose not to a report his scratched thumb. He thought the injury was insignificant.
A few days later the claimant's hand was throbbing and swelling. It was very painful. He decided to go to the Emergency Room. The ER doctor took one look at the claimant's thumb and put the claimant in the hospital. He stayed there for 10 days while he was administered antibiotics to bring down the infection. His medical bills were over $38,000.
He reported this to his Employer and the claim was turned over to the insurance company. They denied the claim. They said his injury was not immediately reported to a supervisor at work. He came to see me.
I represented the claimant in a Virginia Workers Compensation proceeding. We were able to persuade the Deputy Commissioner that the claimant had a reason for not reporting the injury right away. He had regarded the injury as "trivial." Virginia Workers Compensation law requires injuries to be reported in writing to your employer within 30 days of the date of the injury. Most employers like the claimant's employer require an injury to be reported "immediately" to management. Fortunately, in the claimant's case, the Deputy Commissioner believed claimant. He believed the injury did occur at work. He believed the claimant had not reported it right away because he legitimately thought the injury was trivial.
The claimant dodged the bullet in this case. He was lucky the Deputy Commissioner believed him. However, he would not have had any problems or delays if he had just reported his injury to management right away.
The morale of this claimant's story is report your injury right away (no matter how significant the injury appears to be).
If you want a free consultation on your Virginia Workers' Compensation Case: call now at804-358-4766 or 1-800-256-8862 or email me at jervalaw@aol.com


Why is Age Important in Social Security Disability


Age is very important in Social Security cases.

1

49 and Younger

One of the most important criteria is your age. Social Security has decided your age is a very important factor. This reflects the philosophy that at certain ages it becomes more difficult to adapt to new situations, demands, and circumstances. So, if you are age 49 or younger, Social Security says every job in the United States is available. This means such jobs as toll booth collector, identification clerk, security monitor watcher, credit card clerk, etc. have to be ruled out.

2

50 to 54

If you fall into the age category 50-54 what SSA calls Approaching Advanced Age, you receive a bit more favorable treatment from Social Security. However, if you can still any jobs in the past that were PRW you cannot be considered disabled. But even if you cannot do any PRW jobs, your still relatively young age can still defeat your claim. Social Security does have the burden to show you cannot do other jobs when you have shown you cannot do PRW. But Social Security can meet its burden of proof by using a vocational expert to testify that (despite your orthopaedic impairment) you can still do other jobs in the national economy.

3

55 to 59

If you fall into the age category 55-59 what SSA calls Advanced Age, you now receive much more favorable treatment by SSA. Again, if you cannot do PRW, the burden again shifts to Social Security to show you can do other jobs. But if your Advanced Education is combined with lack of education and skills you may be close to a winning disability case. This is especially the case if you also have impairment restrictions that restrict you to sedentary work. Sedentary (sit down work) work is defined as work that does not require standing more than two hours out of an eight hour work day and does not require lifting of more than ten pounds. Thus age has now become a much more important factor.

4

60 to 64

If you are in the 60-64 age group what the SSA calls Retirement Age, then the SSA really smiles on you. You may have to show only that you cannot do PRW. Social Security assumes you are too old to be retrained and new old to adapt to new work circumstances.

5

Summary

In summary, Social Security has made a decision to consider the applicant's age as a major component of the application. So, if you are only 49, you may want to work another year before you apply. More importantly, if you are 54, you definitely need to work another year and obtain the favorable 55-59 criteria treatment. But even then you may have to retain a skilled Social Security Attorney to maximize your chances. If you want a free consultation on your Virginia Workers' Compensation Case: call now at 804-358-4766 or 1-800-256-8862 or email me at jervalaw@aol.com

Obesity & Social Security Disability


Social Security has a set of Impairment Listings. At one time "obesity" had an impairment listing. Thus, if the applicant was of a certain height and weight, then the applicant received Disability. For example, if you were 5'2" and 300 pounds, then you were well on your way to winning a Disability Case if you had any impairments in addition to your "obesity".

In 1999, Social Security changed the Rules and deleted the Impairment Listing for "obesity". Social Security did say it would consider the effects of "obesity" with regard to other listed impairments such as respiratory impairments, cardiovascular impairments, and muscoloskeletal impairments (back problems).

In a recent case I had a young lady who was 400 pounds and had spinal stenosis. Prior to 1999, she probably would have met the Impairment Listing for "obesity". Since the rules have changed, we had to go to a hearing before a judge and demonstrate the severity of her back problem. We won but the primary focus of the decision was on the back problem and not her "obesity."

In another case I had the applicant was a man who was over 375 pounds with congestive heart failure. Again, prior to 1999 he would have met the "obesity" listing. Instead, we had the hearing and the judge denied the claim on the grounds he had not done enough to lose weight. The United States District Court reversed the social security judge and we were granted a new hearing. We won this time with an on the record decision. But again, this case shows the rules have changed and "obesity" no longer is the "slam dunk" winner it once was.
If you want a free consultation on your Virginia Social Security Disability Case: call now at804-358-4766 or 1-800-256-8862 or email me at jervalaw@aol.com
Also, review my website at: www.virginiadisabilitylawyer.com

Virginia Workers Compensation Settlement: the top 10 factors to consider


There are many factors involving settling a workers' compensation in Richmond. These are some of those.

1

An Award Gives You Lifetime Medical Coverage for your Injury

If you have a Virginia Workers' Compensation award, you know you have a life time medical award and thus the insurance company will have to pay your medical expenses for the rest of your life.

2

500 weeks of Compensation

If you have an ongoing award of compensation, the insurance company may be looking at paying you 500 weeks of compensation under Virginia Law.

3

Loss of a member or loss of use of a member

If your injury is to your eye, arm, finger, toe, hand, arm, foot, or leg, you can usually expect to be paid for any permanent damage to that part of your body.

4

Lifetime Compensation

If your injury is very serious and leaves you totally disabled, then you may have a claim of compensation that could go longer than 500 weeks potentially for the rest of your life. But this can require proof of brain damage or the loss of two extremities

5

Return to work may mean a Small or No Settlement

If you have returned to work and you are not incurring any medical expenses and your injury has not given you any permanent work restrictions, then your claim may have little or no value for settlement purposes

6

Possibility of a Future Medical Operation

If you face an expensive operation in the future such as a knee replacement, you would need to consider this in negotiating any settlement. This is especially the case if you are surrending your medical care in the settlement.

7

Your Need for Future Medical Coverage

Many insurance companies in Virginia will not settle a workers' compensation case and allow you to keep lifetime medical coverage. If you do not have an alternative way to pay medical expenses, this can prevent a settlement.

8

The Impact of Social Security & Medicare

If you are on Social Security Disability or are applying for it, then you need to know the impact a workers' compensation settlement will have on your Social Security benefits and Medicare.

9

A Personal Injury Case

If you have a third party case arising out of the same accident as your workers' compensation accident the workers' compensation carrier may have a lien on your workers' compensation case.

10

Summary

IN SUMMARY, there are many factors involved in settling a workers' compensation case; therefore, the best advice is to contact an experienced workers' compensation attorney to evaluate any settlement before it is signed. Please review my article: How to Choose the Best Virginia Workers Compensation Attorney or Lawyer. Virginia Workers' Compensation Law is a specialty field. You would not choose a general practitioner for brain surgery so why would you choose a general practitioner for your workers compensation claim? You just cannot assume every attorney knows the ins and outs of Workers' Compensation Law. If you want a free consultation on your Virginia Workers' Compensation Case: call now at 804-358-4766 or 1-800-256-8862 or email me at jervalaw@aol.com 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.

How to get Partial Workers Compensation in Virginia


If on partial workers comp disability in Virginia, these are the rules.

1

Marketing in Virginia Requires 5 Job Applications Per Week

If an employee has an injury but is not totally disabled but only partially disabled, then the employee cannot get Virginia Workers' Comp payments unless the employee does marketing or a job search. The Virginia Workers' Compensation Commission has now decided that the minimum requirements for marketing are filing five (5) job applications per week and registering with the Virginia Employment. The job applications must be for jobs that are within the work restrictions set by the treating physician.

2

A Light Duty Job May Not Be Enough

If the employee finds a light duty job, the employee may want to request partial compensation if the light duty job pays less than the pre-injury job. However, the light duty job may not end the marketing requirement. In the recent case of Ford Motor Co. v. Favinger, 275 Va. 83, 654 S.E.2d 575 (2008), the Virginia Supreme Court said the mere finding of light duty work does not negate the requirement of marketing if the light duty work pays less than the pre-injury work. Thus, if the employee had been making $800.00 per week pre-injury and the employee finds a light duty position paying $400.00 a week, the employee cannot expect partial workers' compensation to make up the difference (without doing additional marketing). The employee with the $400.00 per week position probably does not have to do five (5) job applications per week but the employee may have to continue to apply for at least one (1) to (2) job applications per week if the employee expects partial compensation.

3

Why a Job Seach is Still Required after a Part-time Job

The rationale for this is making only $400.00 per week indicates you are not doing as well as your pre-injury job. It also means you "possibly" could still make $800.00 a week with the right light duty job. Thus, a job search is still required even though you have a light duty job.

4

An Experienced WC Attorney

Of course, it is always helpful to consult an experienced Virginia Workers' Compensation Attorney if you have questions about this. If you want a free consultation on your Virginia Workers' Compensation Case: call now at 804-358-4766 or 1-800-256-8862 or email me at jervalaw@aol.com

Virginia Workers Compensation & Social Security Disability


You are disabled and you are on Workers' Compensation for your injury and you want to also obtain Social Security Disability for this injury. This article addresses whether this is possible.
Social Security Disability is a Federal program that provides monthly income to disabled people (1) who have paid into the Social Security system while working and (2) who have proven they are disabled and unable to work. The amount of monthly income is dependent upon earnings paid in by the worker in the years prior to the disability with the maximum benefit a disabled worker could receive in 2006 being $2,053.00 per month. The worker's dependents could receive an additional 50% of his amount.
Virginia Workers Compensation is a state of Virginia program that provides benefits for the disabled worker who is injured on the job. The amount of the benefit is two thirds of the worker's gross salary with a cap of $895.00 per week as of June 1, 2010.
The Social Security Offset: In 1965 Congress passed an amendment to Social Security enacting the Social Security Offset. Since 1965, Social Security will reduce its benefit if a combination of the Social Security benefit and the Workers' Compensation benefit exceeds 80% of the worker's average current earnings. Social Security calculates the average monthly earnings based on the best year of employment in the five years preceding the onset of the worker's disability.
An Example of how the Offset Works: John Doe receives a monthly workers' compensation benefit of $3,000.00. John Doe then qualifies for Social Security and would receive $1,500.00 a month based on his earnings record with Social Security with an additional $750.00 for his children. Social Security calculates John Doe's average earnings based on his best year in the last five years prior to his disability as $5,000.00 per month. However, the combination of John Doe's Social Security and Workers' Compensation equals $4,500.00 ($3,000.00 plus $1,500.00) and 80% of his average earnings is only $4,000.00 ($5,000.00 x 80%). Thus, John Doe exceeds the 80% cap by $500.00 and his Social Security would be reduced to $1,000.00 per month ($4,500.00 - $4,000.00) and he would receive nothing for his children. If John Doe had dependents, they could have received 50% of his $1,500.00 Social Security amount or $750.00 as their dependent check. However, due to the receipt of Workers' Compensation the dependents would not receive anything. Thus, John Doe in this example loses $500.00 per month for himself and $750.00 per month for his children in Social Security due to his receipt of Workers' Compensation benefits.
What About A Settlement to Escape the Offset? John Doe cannot easily escape the offset by doing a lump sum settlement of his Workers' Compensation Claim. Normally, if John Doe does a lump sum settlement of his Workers' Compensation Claim, the settlement will still be subject to the offset. Social Security will prorate the settlement to reflect the monthly rate that would have been paid had the lump-sum award not been made. Medical and legal expenses incurred by the worker may be excluded when computing the offset. For example, if John Doe settles his workers' compensation claim for $100,000.00, Social Security will divide this $100,000.00 by fit by $3,000.00 (his monthly workers' compensation benefit, pre-settlement) and continue the offset for over 33 more months ($100,000.00 divided by $3,000.00). An experienced Workers Compensation/Social Security lawyer may be able to avoid this offset.
In Summary, like tax planning to avoid additional taxes, a worker who is receiving both Workers' Compensation and Social Security Disability, must do careful planning to avoid a reduction of his benefits for both himself and his dependents. This is especially true if the worker does a lump sum Workers' Compensation settlement. If the worker is not careful, the worker may face a reduction of his Social Security Disability for both himself and his dependents for a long time. In the above example John Doe had an offset for another 33 months because he did a settlement without consulting an experienced attorney.
Social Security has not allowed claimants to later amend worker's compensation settlements to avoid the offset; therefore, careful planning must be done prior to the settlement.