Friday, December 19, 2014

In Virginia when is a lawsuit for negligent hiring better than a workers' compensation claim?

If there is an assault in the workplace by a co-employee, there are usually two possible remedies for the victim or the victim's dependents. One is a workers' compensation claim and the other is a personal injury claim against the employer.

Of course, the big difference is damages. In a personal injury claim one can recover for pain and suffering and other items. In a workers' compensation claim one is limited to medical expenses and lost wages with a cap of 500 weeks.

In a recent case in Virginia this occurred. Crump and Gibson worked for American HomePatient. Crump developed a romantic interest in Gibson. When he was rejected, he came into the work place and murdered Gibson and her boyfriend. American Home Patient offered to cover the incident as a workers' compensation claim and pay Gibson's dependents compensation which would be 500 weeks of compensation. Instead, Gibson's estate and the boyfriend's estate filed separate lawsuits for $10,000.000.00 against American Home Patient for the negligent retention of Crump as an employee. American Home argued in the workers' compensation proceedings and in the personal injury action that Crump feared being fired by Gibson and/or her boyfriend and that the murder "arose out of the workplace" at American Home Patient. Both the Circuit Court and the Virginia Workers' Compensation Commission rejected this argument. 73 Va. Cir. 85 (Rockingham County, decided Mar. 12, 2006. VWC File No. 228-52-25); Gibson v. American HomePatient (Va. Workers' Compo Comm'n, filed Jan. 16,
2006) (VWC File No. 228-52-24)). 

The Commission and Court held there was no evidence that Gibson or her boyfriend had any supervisory authority over Crump. Thus, under the "reasonable man" test Gibson and her boyfriend's employment at American Home Patient did not increase their risk of assault by Crump. Gibson's estate went on to recover $3,000,000.00 in the personal injury action (which was much more than the dependents would have recovered in the workers' compensation claim).

In summary, even though the employer may be willing to accept an assault as workers' compensation claim, it may be preferable to proceed with a personal injury action for negligent hiring especially if there has been a death or a significant injury.

FOR MORE INFORMATION: call Jerry Lutkenhaus at (804) 358-4766 or 1(800) 256-8862 or you can visit our website at Virginia Workers' Compensation Lawyer.




Saturday, December 13, 2014

Sexual Assault in the Workplace in Virginia: Is there a workers compensation remedy?

The test for a Workers's Compensation Injury in Virginia has two components. It must occur "during the course" of the employment. And it must "arise out of" the employment. Thus, a sexual assault during work would definitely meet the first prong of the test since it occurred at work. The more difficult question is whether the assault meets the second prong of the test. Did the assault "arise out of" of the work environment?

If an employee operated the midnight shift at a 7-11, the employee could readily argue such employment exposed the employee to more risks of sexual assault than the American public is normally exposed to.

Likewise a courier who had to make payroll deposits could reasonably argue this employment created a greater risk of being assaulted.

On the other hand what if the sexual assault was by a fellow employee in the work place? Sometimes the victim does not want to be covered by the Workers' Compensation Act. If the injury is horrific, the victim might rather file a personal injury claim. In a workers' compensation claim, the remedy is limited to compensation for lost wages and medical expenses. In a personal injury claim, the victim can try to recover for pain and suffering, loss of quality of life, etc.

If the sexual assault by the fellow employee takes place in the work place but there is no other link to the work place environment, then the victim will not have a workers' compensation claim. If the victim thinks she can recover more in a personal injury case, she may not want workers' compensation coverage. Conversely, the employer might desire workers' compensation coverage since the victim's damages are more limited.

Virginia Code Section 65.2-301 does provide an employee can obtain a presumption the sexual assault arose out of the work place if the assault is reported to the police and the victim proves it came about due to the conditions of the work place.

In one recent case, the City of Richmond tried to escape personal injury liability and prove the sexual assault arose from the workplace by showing the attacker looked at pornagraphic materials at work. The court denied the City's claim. In another case, the employer tried to escape personal injury liability by showing the employer knew the assailant had prior criminal convictions when the assailant was hired. The court denied the employer's claim. In the case of Butler v. Southern States, 620 S.E.2d 768 (November 4, 2005) the Virginia Supreme Court refused to bar a personal injury claim for an employee who was sexually assaulted by a fellow employee while they were making a delivery for the employer. The Court allowed a personal injury lawsuit for negligent hiring to go for award against the employer.

In summary, the victim of a sexual assault in the work place may have a workers' compensation claim but should consult an attorney regarding whether a personal injury claim is a better choice. Which remedy is best sometimes has to be determined on a case by case basis.

For more information: contact Jerry Lutkenhaus at (804) 358-4766 or call toll-free at (800) 256-8862 or visit our website at

Virginia Workers' Compensation Lawyer.

Saturday, November 29, 2014

Virginia arm injury on the job or was it a neck injury?

In Virginia I often see an injury on the job that is diagnosed as an arm injury. Later it turns out it was really a neck injury or there was a neck injury in addition to the arm injury. A late discovery of a neck injury in addition to the arm injury can be a problem if the neck injury is never added to the claim within two (2) years of the date of accident.

If the original claim only contains an award for an arm injury, then a claim for a neck injury will probably be lost if it is not added within two (2) years of the date of accident. The usual rule followed by the Virginia Workers' Compensarion is that an award for just "an arm" does not include an award for a different part of the body such as a "neck" when there is no mention of the neck on the award.

Thus, if a worker has a complicated arm neck injury, he or she should consult a lawyer right away to make sure he or she has an award for both the neck and the arm. An award for one part of the body will not include other parts not mentioned in the award.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766 or toll free at 1(800) 256-8862 or visit our website at Virginia Workers' Compensation Lawyer.

Thursday, November 27, 2014

What is filing a workers' compensation claim in Virginia?

If an injured employee contacts the Virginia Workers' Compensation Commission after an injury, he or she may be informed that the employee can "file a claim for the injury" and the Commission will mail the employee the form or it can be filed on-line.

The Virginia form contains a Part A and a Part B. Part A asks for the information about the accident. Part B asks what benefits the employee is seeking.

Under Virginia workers' compensation law "a claim" must be filed with the Commission within two (2) years of the date of the accident or the claim will be time-barred.

In a recent case the injured employee only filed Part A within the two (2) year time period. Later the employee asked for wage compensation for a period within the first two (2) years. The insurance company defended stating the employee had not filed Part B of the claim form asking for wage compensation within two (2) years of the accident. The Virginia Court of Appeals disagreed with the insurance company holding filing Part A within the two (2) time limit was enough to constitute filing a claim.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766 or at 1(800)-256-8862 (toll-free) or visit our website at Virginia Workers' Compensation Lawyer.

Injury at work in Virginia: is falling on a staircase covered?

A common injury at the work-place is falling on a staircase or on steps. Will workers' compensation insurance cover this injury in Virginia?

Virginia follows the "actual risk" rule. This means a risk in the work environment must cause the injury. So, as a practical matter falling on a staircase or steps may fail as a claim in Virginia if there is nothing wrong with the steps. Some things that could make this claim compensable are as follows:

1.  If the staircase is poorly lit or if a light is out this can be a "risk" of the employment.

2.  If the steps are slippery or wet, this can be a "risk" of the employment.

3.  If the worker was bumped by a fellow employee on the steps this could be a "risk" of the employment.

4.  If the steps are unusual in any way regarding width or length, this could be a risk of the employment.

5.  If the employee was encumbered by packages or other items while on the steps this could be a "risk" of the employment.

6.  If an office emergency caused the employee to rush down or up the stairs, this could be a "risk" of the employment.

In summary, even though the insurance company denies coverage for the staircase fall, the employee should check with an experienced Virginia workers' compensation attorney to find out if there is coverage under one of the exceptions listed above. The employee in a staircase accident is often asked to give a recorded statement to the claims adjuster. This is dangerous. Often, the injured employee will make the following statement: "I fell and it happened so fast so I don't know what happened." This could be fatal to a claim. Call an attorney as soon as possible.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at 804-358-4766 or 800-256-8862 (toll-free) or check our website at Virginia Workers' Compensation Lawyer.

Tuesday, November 25, 2014

Social Security Disability Lawyer -- Tell Your Lawyer the Truth

Your Social Security Lawyer cannot represent you successfully if you do not tell him or her the truth. I had a recent case involving this issue. I had a client who I will call John Doe. He was an auto repair man with some severe disabilities. He needed hip replacements and bilateral knee replacements. He could barely walk. Operations were scheduled. We had a hearing in front of the judge. John Doe under oath said he had not worked in two years. Shortly after the hearing the judge sent me a fraud investigation report. The report indicated John Doe was accepting occasional odd jobs at a repair shop even though he claimed to be a "disabled" worker.

Social Security follows the concept that you are not really working unless you are making more than $1,000 a month. It is possible John Doe's odd jobs did not amount to $1,000 a month and thus did not result in disqualifying substantial gainful activity (SGA).

However, John Doe did not tell me about his odd jobs prior to the hearing. Instead, he testified under oath he had not worked in two years. Thus, I feel sure the judge will find John Doe not credible about his disability even though he does need many operations. If John Doe would only have been truthful we probably could have explained the "odd jobs" he did while waiting for his disability hearing.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at 804-358-4766 or 800-256-8862 or visit our website atVirginia Disability Lawyer.

Thursday, November 20, 2014

Injury on the Job in Virginia? Sign the Agreement for an Award right away!



In my opinion which was confirmed in a recent seminar, the injured worker should sign and return the Agreement for an Award form as soon as he/she receives it and return it to the claims adjuster for filing with the Commission.

If the insurance company accepts your injury in Virginia, the carrier is required to send the injured worker a form called the Agreement for an Award. This paper will spell out the injury that is covered, the compensation rate, the period that is being paid, and that lifetime medical care for that injury is being awarded. After both the worker and the claims adjuster sign the Agreement form, the carrier will normally forward it on to the Virginia Workers’ Compensation Commission and an award will be entered.

At a recent workers’ compensation seminar provided by the Virginia Workers’ Compensation Commission, a Commissioner explained labeling an injury a ‘back strain” will usually cover all injuries to the back such as herniated discs. However, to be safe it doesn’t hurt to file for an amendment to the award and add such additional body parts.

Also, the Commissioner pointed out recent case law confirmed signing an agreement for one body part does not preclude one from filing later to add additional body parts as long as the new claim is filed within two (2) years of the date of the accident.

On the other hand, the Commissioner if a claim is litigated then this litigation may preclude the worker from adding additional body parts if those claims are not specifically reserved in the litigation. Thus, the Agreement for an Award does not have the same preclusive effect as does a litigated case.

The rationale is Agreements for an Award and favored by the Commission as part of its administrative function. Agreements are not to be used as “traps” by carriers to foreclose claimants from their truly meritorious claims. So, injured workers sign those Agreements and mail them back to the claims adjusters.

However, if you don't quickly receive an Award from the Commission, you can always file a claim for your injury within two (2) years of your accident with the Commission.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766 or (800) 256-8862 or visit our website at Virginia Workers Compensation Lawyer.

Friday, November 14, 2014

Virginia Workers’ Compensation Attorney Advanced Retreat




Recently, I attended the Virginia Workers’ Compensation Attorney Advanced Law seminar in Richmond, Virginia. The meeting was highlighted by Dr. Nathan’s Zasler’s talk on mild to moderate brain injuries (TBI). In addition, one discussion highlighted all new case developments and law changes in Virginia Workers’ Compensation Law in the last year. One session focused on case developments regarding the “unexplained accident” which is always a problem. There was also a presentation about the interaction between Medicare and workers compensation in Virginia especially regarding settlements.

The session once again proves in order to practice effective workers’ compensation law in Virginia you have to be on top of all new developments in the law or in case law.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804)358-4766 or (800) 256-8862 or visit our website at Virginia Workers' Compensation Lawyer.

Scholarships for the Children of Injured Workers in Virginia

In Virignia there is great news for the children of workers who have suffered a fatal or job ending injury. An organization was formed in 2011 to provide scholarships for these children. The scholarships are available for both colleges and trade schools.

The organization is Kid's Chance of Virginia or KCVA. It is a 501c3 non-profit organization whose sole purpose is to fund scholarships for these needy children.


For more information visit their website at Kids Chance of Virginia. You can either apply for a scholarship or make a donation to this worthy cause.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766 or (800) 256-8862 or visit our website at Virignia Workers' Compensation Lawyer.

Saturday, November 1, 2014

The Questionable Virginia Worker's Compensation Injury

An injury at work is not always obvious. Some real life examples:

You scratch yourself at work and shrug it off. IS THIS A WC INJURY AND SHOULD YOU REPORT IT?

You load a truck with boxes. On the 25th box you feel a pull in your back and continue working. IS THIS A WC INJURY AND SHOULD YOU REPORT IT?

You reach up and behind you and pull something off the wall for a customer and snap something in your shoulder and finish the work day. IS THIS A WC INJURY AND SHOULD YOU REPORT IT?

You have had a bad back for years. You lift a widget at work and you experience new back pain. IS THIS A WC INJURY AND SHOULD YOU REPORT IT?

You walk down the back steps at work and stumble and fall due to the poor lighting. IS THIS A WC INJURY AND SHOULD YOU REPORT IT?

Your fellow worker disagrees with a work assignment you gave him and starts a fight and hits you. IS THIS A WC INJURY AND SHOULD YOU REPORT IT?

You are rushing to work and slip on wet pavement before you arrive at work and fall. IS THIS A WC INJURY AND SHOULD YOU REPORT IT?

In summary, these are real life examples from cases I have had where the claimant was injured at work and did immediately report the injury. So, the insurer denied the claim and the claimant sought my representation. A clear immediate report to the employer and an immediate trip to a doctor may have spent immediate acceptance of the injury.

For more information: contact Jerry Lutkenhaus at (804) 358-4766 or (800)256-8862 or visit our website at Virginia Workers' Compensation Worker


Sunday, October 26, 2014

Hire a Virginia Workers Compensation Lawyer or do it yourself?

The original design of the Virginia Workers Compensation Act was to have a simple mechanism to provide injured workers compensation and medical care. However, the system is now much to complicated to handle it yourself. If you had a brain injury would you consult a brain injury expert or should you do it yourself? The do it yourselfers make these mistakes:

1.  If the worker loses the hearing they expect to hire a lawyer for the appeal. But in a workers' compensation case, no new evidence can be added on an appeal so the worker is usually stuck with whatever evidence the worker produced at the hearing.

2.  The worker may expect the Workers' Compensation Commission to act for the worker and protect the worker. However, the Commission has to be "neutral" and cannot take sides. By law the Commission cannot help the workers at a hearing.

3.  The worker may expect the Workers' Compensation insurer to do the right thing and pay the worker compensation and the medical bills for the accident. But the worker doesn't realize the insurer will look for any reason to deny the claims.

4.  The insurer may request the worker's prior medical records. The worker may not know the reason for this. The reason is the insurer is looking for a pre-existing condition to deny the claim. If the worker does have a pre-existing condition, the worker may face a long delay in getting benefits or have the benefits denied.

5.  The employer may refuse to cooperate and may not report the worker's  accident or the worker's past wages to its insurer in an effort to defeat the claim. This is especially the case if the worker did not report the accident right away or the worker  did not go to a doctor right away to document the injury. Also, if the worker was just recently employed the employer may be reluctant to honor the worker's claim (since it has no loyalty to the worker).

6.   The worker will be asked to give a recorded statement by the claims adjuster for the insurer. The worker may not realize that this statement will be used against the worker if the worker made any errors in the  statement that harms the case. A common error is to fail to describe a compensable accident under the Workers' Compensation Act.

In summary, this is just some of the reasons why an injured worker should not represent himself or herself on a workers' compensation claim. As Abraham Lincoln said, "he who represent himself has a fool for a lawyer."

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766 or (800) 256-8862 or visit our website at Virginia Workers' Compensation Lawyer

Saturday, October 25, 2014

Pain and Suffering in a Virginia Workers' Compensation Case?

In my Virginia Workers' Compensation practice injured workers often ask "Why cannot I get pain and suffering and compensation for loss of quality of life due to the painful injury I suffered on the job?" The workers also say "After all it all occurred as a result of my injury on the job which was caused by my employer's negligence or the dangerous work environment."

The answer to this question goes back to the creation of the workers' compensation laws in the United States. These type of laws were first created in Germany by Bismarck to fend off Marxism and protect workers who were injured on the job. In the United States most of the states including Virginia enacted workers' compensation laws to provide for wage loss and medical expense coverage for injured workers in 1919 becoming the 37th state to enact such laws.

Even though these laws did benefit employees they did lose some rights. The injured employees lost their common law rights to sue their employers for "pain and suffering" and "loss of quality of life."
This loss can create a special hardship for an employee who has a permanent pain condition or impairment that not only prevents him or her from working but also has caused a loss of quality of life such as engaging in recreational activities.

Moreover, even though the Virginia Workers' Compensation Act provides compensation for wage loss coverage, in most cases this compensation ends in 500 weeks even though the injured worker is still unemployed due to his or her impairment. In even more cases, the worker loses his compensation because although still impaired or in pain due to his work injury he or she returns to "light duty employment" of one kind or another.

In summary, it may be unjust but you don't receive "any" compensation for pain and suffering in a Virginia Workers' Compensation case.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766 or at (800) 256-8862 or visit our website at Virginia Workers' Compensation Lawyer.

Tuesday, October 21, 2014

How to Handle the Insurance Company's Job Placement Worker in a Virginia Workers' Compensation Case

In Virginia, the insurer will press the doctor to release "the injured worker" to light duty work soon after an accident at work. If the doctor agrees, the insurance company will assign a job placement worker (vocational consultant) to the injured worker's case.

The worker will first try to place you back with your old employer. The worker will ask the old employer to place you in a light duty job or in some cases request that the employer create a light duty job for you. The employer has an incentive to take you back in order to lower your its insurance costs.

If the employer does not have a job the placement worker will attempt to place the injured worker in a light duty job elsewhere. Typical light duty jobs are security jobs and clerk jobs at the Dollar stores. If the proposed jobs are within the injured worker's restrictions the worker will have to take the job. The insurer benefits since the insurer gets to deduct the light duty wages from the pre-injury wages and thus pay the injured worker less in compensation benefits.

The Virginia Workers' Compensation Act does provide the insurer is allowed to do "job placement" for a reasonable time before having to pay for any re-training or re-education expenses. In my experience the insurers rarely offer to pay for re-training or re-education expenses.

Failure to cooperate with the job placement worker can be a serious offense under Virginia Workers' Compensation law. If proven, it can mean forfeiture of compensation payments. The injured worker is well-advised to consult with an experienced workers' compensation lawyer when face with "job placement" by the insurer.

FOR MORE INFORMATION: Contact Jerry Lutkenhaus at (804) 358-4766 or (800) 256-8862 or visit our website at Virginia Workers' Compensation Lawyer.

Thursday, October 16, 2014

Bad Performance at Your Virginia Workers' Compensation Functional Capacity Examination (FCE)

The doctor declares the claimant to be at maximum medical improvement (MMI) for his or her work place injury. What happens next?

Well in Virginia the doctor often does not set permanent work restrictions. Rather, the doctor refers the worker to a skilled therapist who has been trained as a disability examiner. The disability examiner puts the injured worker through  a 4 to 6 hour test to determine what the worker can lift and carry. Also the examiner may test standing, sitting and bending ability. This report is then sent to the doctor for approval. This report is called a Functional Capacity Evaluation or FCE. This report can set the worker's permanent work restrictions if the doctor signs off on the FCE.

The biggest "danger" many workers run into is they will attempt to embellish or exaggerate their difficulties when it comes to the FCE. The second "danger" is the worker will refuse to do activities required by the FCE. If the worker does the first, then the worker can be labeled a "faker" regarding his/her symptoms. If the worker does the second, then the worker can be accused of non-cooperation.

In summary, I always tell my workers to give a "good faith effort" on the exam.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766 or call toll-free at (800) 256-8862 or check our website Virginia Workers' Compensation Lawyer.

Virginia Workers Compensation Attorney & Your Accident

When you have an accident at work, you need a specialist in Virginia Workers' Compensation Accident.  You would not go to a family doctor for brain surgery!

1.   First, look for an attorney who specializes in Virginia WC law.

2.   Second, make sure your attorney has Martindale-Hubbell's highest rating of AV.

3.   Third, make sure your attorney belongs to the Virginia Trial Lawyers' Sub-committee on    workers' compensation.

4.    Fourth, make sure your attorney has no disciplinary charges against his/her record by checking with the Virginia State Bar.

FOR MORE INFORMATION: call Jerry Lutkenhaus at (804) 358-4766 or (800) 256-8862 or check
our website at Virginia Workers' Compensation Lawyer.

Monday, October 13, 2014

Virginia Workers' Compensation Accident? Report it?

As a workers' compensation lawyer, I have seen this scenario many times: a worker injured himself or herself at work, thinks nothing of it, and continues to work. Weeks later or maybe months later the problem gets worse and the injured worker tries to report an accident and it is denied. What is the problem?

1.  Many employers have a rule requiring immediate reporting of an accident.

2.  The Virginia Workers' Compensation Act requires reporting to an employer in 30 days.

3.  Sometimes, if an accident is initially considered trivial, the Commission may forgive the initial
     reporting requirement (but this is tough to prove).

4.  The Commission is seldom forgiving when it comes to a failure to report a back injury.

5.  If you wait a long time to report an accident and you wait a long time to go to a doctor, it can be
     very difficult for the doctor to connect the dots between the accident and the impairment.

Conclusion: report anything that might be considered an accident immediately to your employer. Do not delay in going to the doctor!

FOR FURTHER INFORMATION: contact Jerry Lutkenhaus (804) 358-4766 or visit our website at
Virginia Workers Compensation Lawyer.

Virginia Workers' Compensation & Video Surveillance

Recently, I have had a few cases in my Virginia Workers' Compensation practice that involved video surveillance. This typically occurs when an injured worker is out of work on compensation and the disability is due to "pain" rather than an obvious orthopedic impairment.

The insurer will employ a private investigator to follow the injured worker around hoping to catch the worker doing an activity or activities that are inconsistent with his alleged impairment. If the investigator is successful, the insurer's attorney will then play the video in front of the treating physician. This can cause the treating physician to declare the injured worker no longer disabled or cause the treating physician to lift any work restrictions. Then, the insurer's lawyer will file with the Virginia Workers' Compensation Commission to cut off the worker's compensation.

One problem for the worker's attorney is that one cannot obtain the insurer's video surveillance until after it has been provided to a third party such as the treating doctor.

Also, the Commission has ruled in the past the worker's attorney cannot obtain the video prior to the worker's deposition. Thus, the insurer's lawyer can pin down the worker to answers that may be inconsistent with the surveillance video.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766 or (800) 256-8862. Also, check our website at Virginia Workers' Compensation Lawyer.

Virginia Workers's Compensation Covers Mileage for the Injured Worker

The Virginia Workers's Compensation Act provides for mileage coverage for the injured worker. Once a claim is accepted and an award is entered for the worker the worker is awarded lifetime medical coverage for that specific accident. This includes any mileage the injured worker has to incur to go to doctors, hospitals, therapists, vocational counselors, etc. The reimbursement rate is 55.5 cents a mile.

There are some caveats: (1) many insurers will not tell injured workers the reimbursement is available; (2) the reimbursement does not cover trips to the pharmacy to pick up prescriptions; (3) the reimbursement does cover mandatory trips one has to make as part of vocational rehabilitation; and (4) the trips must be the shortest distance from home to the health care provider as determined by Mapquest or some other measuring tool.

FOR MORE INFORMATION: check my website at  Virginia Workers' Compensation Lawyer. Call Jerry Lutkenhaus at (804) 358-5766 or (800) 256-8862.

Virginia Workers Compensation & the Treating Physician Rule

I recently had a case in which the treating orthopedist recommended bilateral knee replacements due to her work place accident.The insurer in this Virginia Workers Compensation case disputed the recommendation. The insurer obtained two defense medical examinations that said the knee replacements could be necessary but they were not do to the "accident" the claimant had suffered but rather the replacements were necessitated by arthritis.

In the initial hearing before the deputy commissioner we lost. However, we appealed to the the Full Commision (three Commissioners who handle appeals from deputy commissioner decisions). Citing Virginia's "treating physician rule" the three Commissioners reversed the deputy commissioner and ordered the operation. Commissioner Williams for the Full Commission said the treating doctor's opinion based on three years of treatment out-weighed the two defense medical examinations.

The insurer then appealed to the Virginia Court of Appeals but that court in August 2014 dismissed the appeal.

For more information check my website at Virginia Workers' Compensation Lawyer contact me (804) 358-4766 or (800) 256-8862.

Friday, October 10, 2014

Veterans Get Break on Social Security Disability Claims in Virginia


Recently, I represented four veterans who had PTSD and other injuries as a result of their service for this country in Iraq and Afghanistan. They were trying to get Social Security Disability. All of them had been awarded 100% unemployability ratings by the VA. The ratings were based on their PTSD and other conditions.

They had filed Social Security Disability claims for their conditions to get support for themselves and their children. Unfortunately, their claims were initially denied so they came to me for representation.

First, I was able to get them expedited Social Security Disability hearings before administrative law judges since they had claimed disability due to active military service after October 1, 2001.

Second, in Virginia and in the Fourth Circuit (which covers Virginia, West Virginia, Maryland, North Carolina, and South Carolina) there had been a favorable ruling by the United States Fourth Circuit Court of Appeals. In a case in 2012, the Fourth Circuit said VA disability determinations "must be accorded substantial weight in Social Security disability proceedings." Bird v. Commissioner of Social Sec. Admin, 699 F.3d 337. 245 (4th. Cir. 20120). The Fourth Circuit said both SSA and the VA focus on the functional limitations to determine whether the veteran can work so it makes sense to give VA determination substantial weight.

In conclusion, the VA 100% unemployability ratings were extremely helpful in obtaining Social Security Disability for these vets! I was successful with all four claims.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766 or (800) 256-8862 or visit our website at Virginia Workers' Compensation Lawyer .

Monday, August 11, 2014

Defense Medical Examinations in Virginia

In Virginia, the Virginia Workers' Compensation Act allows a defense medical examination of the injured worker. By case law the defense insurance company can ask the injured worker to undergo this type of exam once a year. In addition, the defense insurance company can ask for multiple exams as long as the doctors have different specialties.

The Virginia statute that allows this type of exam calls the examiner an "independent" medical examiner. However, there is nothing "independent" about this examiner. He or she is carefully chosen by the insurance company so that an opinion negative to the claimant will be forthcoming. The insurer can provide the medical examiner the claiamant's entire medical history so the report will appear to be very comprehensive.

Typically, the emphasis will be on objective tests such as X-rays and MRI's and all subjective complaints will be discounted.

In summary, if your claimant is subjected to an "independent" medical examination (IME)be aware that in most cases there will be a result very adverse to the claimant. The only protection the claimant has in most cases is the "treating physician" rule. This basically means usually if things are equal the treating physician will trump the IME.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766  or (800) 256-8862 or review Virginia Workers' Compensation Lawyer .

Friday, July 25, 2014

Virginia Increases Workers Compensation Penalty for Uninsured Employers

Photo of Gerald Gregory Lutkenhaus

On July 1, 2014 Virginia increased the maximum penalty for employers in Virginia who did not have      
workers compensation to $50,000.00. Prior to this increase, the maximum penalty was only $5,000.00. With such a low penalty, some employers may have thought it was worth the risk not to obtain insurance. That way if you were caught you only had to pay at most $5,000.00. With this increase, perhaps more employers will not risk going "naked" in Virginia without workers compensation insurance. Thus it is hoped workers will have more security in Virginia.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766 or check our website at
Virginia Workers' Compensation Lawyer .


Sunday, June 29, 2014

New Virginia Workers Compensation Rates


                                                  Photo of Gerald Gregory Lutkenhaus

In Virginia, on July 1, 2014 new workers' compensation rates go into effect. For accidents on or after that date the maximum rate of compensation has risen to $967.00 per week. The prior rate was $945.00 per week. In Virginia when one has a work accident, the compensation rate is normally two thirds (66 2/3) of one's salary. However, this is limited by the maximum rate. So, if one was making $1,500.00 per week, your compensation rate is not $1,000.00 per week; rather as of July 1, 2014 it will be $967.00 per week.

FOR MORE INFORMATION: contact Jerry Lutkenhaus (804) 358-4766 or visit our website at Virginia Workers' Compensation Lawyer

Monday, May 19, 2014

Virginia Head Injury and Concussion at Work Results in $500,000 Award

Ms. Jones injured her head at work in Petersburg, Virginia. This caused headaches which were disputed by the employer. We represented her at a hearing and the headaches were awarded. She then received compensation for about 10 years or 500 weeks. In Virginia compensation for a work injury usually ends in 500 weeks. However, one exception is a brain injury. We sought to extend Ms. Jones benefits to lifetime based on our claim she could not work due to her brain injury. The Commission agreed and she received a compensation extension which is worth more than $500,000.00 on April 15, 2014.

 Call (804) 358-4766 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.

Also visit our website at Virginia Workers' Compensation Lawyer.

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.

Tuesday, May 13, 2014

Virginia Workers' Compensation & The Duty to do a Job Search



In a recent case before the 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 (804) 358-4766 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 orwww.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.



Saturday, May 10, 2014

How to settle a Virginia Workers' Compensation Case


When you are injured in a work place accident, you will probably be eligible for Virginia workers' compensation. At some point the insurance company will approach you and ask you if you are interested in a settlement. How much should you settle for? Based on my 30 years of practice as a workers' compensation lawyer, I have compiled what I think are some of the most important factors you need to consider.
FIRST, you need to understand the insurance company will put a value on your case based on what it projects it may need to pay you.
SECOND, if you have a Virginia Workers' Compensation award, you know you have a life time medical award and thus the insurance company may be looking at paying your medical expenses for the rest of your life.
THIRD, if you have an ongoing award of compensation, the insurance company may be looking at paying you 500 weeks of compensation under Virginia Law.
FOURTH, 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.
FIFTH, 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.
SIXTH, on the other hand 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.
SEVENTH, if you face an expensive operation in the future such as a knee replacement, you would need to consider this in negotiating any settlement.
EIGHTH, 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.
NINTH, 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.
TENTH, 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.
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.
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.
Gerald G. Lutkenhaus has been representing claimants in Virginia for over 30 years. In the July 1999 issue of Richmond Magazine he was rated one of the Best Workers' Compensation Lawyers in Central Virginia. In 2003 he received the "AV" rating from Martindale-Hubbell, its highest rating for lawyers. In 2005 he was selected for the Bar Register of Preeminent Lawyers. You can get more information from http://www.virginiadisabilitylawyer.com or http://www.geraldlutkenhaus.com For a free consultation with Jerry Lutkenhaus call me now at 804-356-4766.


In Virginia are you limited to 500 weeks for a workers' compensation injury?

In Virginia, the normal work place injury claim only allows you 500 weeks of compensation. Of course, in order to be paid this 500 weeks of compensation, you either have to show you are "totally disabled" or that you are "partially disabled" and cannot get a light duty job due to your "partial disability."
But what happens when you are still "totally disabled" and the 500 weeks expires? Virginia does allow some cases to go for payment of compensation for your lifetime. These fall into two areas. First, if your accident has caused an injury to the brain so severe as to render you unemployable, then you can receive lifetime compensation. Second, if your accident has caused the loss of both eyes, both legs, both arms, both hands, or any combination of two of the above, then you can receive lifetime compensation.
The Virginia Workers' Compensation has decided the injured worker does not have to show total loss of two members. It suffices to show a permanent ratable loss of use of two members and proof that the injured members cannot be used "gainfully" in employment. Thus, if one can show the work place accident caused a back injury which was so severe that it caused a permanent loss of use both legs, then one has a chance of obtaining lifetime compensation. This is an area that is fruitful for claims and litigation since back injuries are a very common type of injury. A doctor would have to be of the opinion that under the AMA Guide to Permanent Impairments the injured worker has suffered a ratable loss of each leg due to the work place injury. There is no bright line test regarding how high the rating has to be; however, the higher the rating the better chance the injured worker has to obtain lifetime compensation. For example, a back injury that caused more than a 40% loss of the use of both legs could stand a fair chance if there also was a good opinion that the injured worker's legs due to this loss could not be used in "gainful employment."
Of course, since the worker is asking for lifetime compensation, the workers' compensation insurance company will often fight these cases very vigorously. As a result, it often can come down to a battle of experts regarding (1) whether the back injury has caused a loss of use of the worker's legs; (2) what is the proper permanent ratable loss of the worker's legs; and (3) whether there is or is not some work the worker could do involving his injured legs (or arms). The Virginia Workers' Compensation will conduct a hearing and render a decision. If either party is unhappy with the result, then that decision can be appealed from the Hearing Deputy Commissioner to the Three Commissioners who run the Commission. Finally, after the Three Commissioners have made their ruling there is a further appeal to the Virginia Court of Appeals.
In my experience, there is a chance to win this type of case but it does entail having a very severe injury.
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.
Gerald G. Lutkenhaus---practitioner of workers' compensation law in the Richmond, Virginia area for over 30 years and who was recognized in a July 1999 survey in Richmond Magazine as one of the best attorneys for workers' compensation in the Central Virgina area, and who was given an "AV" rating by Martindale Hubbell in 2003. For more information, see our websites at http://www.geraldlutkenhaus.com andhttp://www.virginiadisabilitylawyer.com

Is the test of disability for Virginia Workers' Compensation & Social Security the same?

You are injured at work and you wonder if you qualify for both Workers' Compensation and Social Security Disability. You would like to get both benefits but can you get both benefits at the same time and is the disability test the same?
First, Virginia Workers' Compensation is a program to pay the injured worker who suffers an injury on the job. Generally, Workers' Compensation Insurance pays two thirds (2/3) of one's salary. It is non-taxable. It also pays for medical bills caused by the accident. Any employer in Virginia who has two or more employees is required to have workers' compensation insurance. If the worker due to the injury is unable to perform the duties of his occupation, then the insurance company will pay "compensation" to the worker based on two thirds (2/3) of his salary. Generally, the worker does not have to be "totally disabled" rather the worker due to his injury must just be "incapable' of performing the duties of his/her job. Injury compensation in Virginia is governed by the Virginia Workers' Compensation Commission. If there is a dispute between the injured worker and the insurance company over his/her disability status that dispute is resolved by a Deputy Commissioner at the Commission in an administrative hearing.
Second, Social Security Disability (SSD) is a federal program and is not run by states such as Virginia. Its benefits are a monthly stipend based on the worker's earnings records and Medicare after receiving the stipend for two years. Generally, unlike a workers' compensation claim, in a SSD claim the worker will have to show he or she is "totally disabled" for work. The definition of disability Social Security uses is a disability that has lasted can be expected to last more than twelve (12) months which prevents you from earning more than $1,000.00 a month. If SSD is initially refused, your case will ultimately be decided by a federal administrative law judge in a hearing.
Third, the contrast is Virginia Workers' Compensation only requires you to show you can no longer do the job you were doing at the time of injury. Generally, SSD requires much more. Especially if you are under age 50, it will require you to rule out and "any" job that exists in the national economy. After age 50, the Social Security test becomes a bit easier. At 55 it becomes depending upon one's education and skills, it can become much easier. At age 60 Social Security Disability has made the disability test very easy. In contrast, Virginia injured worker compensation does "not" consider age at all in determining ability to work.
Fourth, if your injury is severe, you can possibly show not only that you cannot do your old job (qualifying for Virginia Workers' Compensation) but you cannot do any job (qualifying for SSD).
In summary, the disability test for Workers' Compensation in Virginia is very different from the disability test for Social Security Disability. Due to the complexity of this issue, an injured worker would be well-advised to consult an attorney who does both Virginia injured worker compensation and SSD.


Article Source: http://EzineArticles.com/6790666

Can you get both 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.
Call Jerry Lutkenhaus now for a free evaluation: 804-358-4766
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.

Additional Resources

Jerry Lutkenhaus is a practitioner of Workers' Compensation and Social Security in the Richmond, Virginia area for over 30 years He was given an "AV" rating by Martindale Hubbell in 2003. Lexis Nexis listed him in the 2005 Bar Register of Preeminent Attorneys. For more information, see our websites at http://www.geraldlutkenhaus.com andhttp://www.virginiadisabilitylawyer.com or call Jerry Lutkenhaus at 804-358-4766 for a free consultation on your claim.

Sunday, May 4, 2014

Alien Workers' Compensation Rights in Virginia are Limited!



As a Virginia Workers’ Compensation practitioner for 35 years I often have to respond to questions about illegal aliens and their workers’ compensation rights.
The Commonwealth of Virginia has decided to provide partial Virginia Workers’ Compensation benefits to illegal aliens when they get injured but not complete benefits. The illegal alien has a problem when he is injured. His employment contract is illegal. In 1999 Virginia Supreme Court said an illegal alien could not receive any workers compensation benefits when he was injured.
The above court ruling created a different problem. If illegal aliens could not recover workers’ compensation benefits, then why couldn't they sue their employers for their injuries? The business interests in Virginia decided they would rather provide partial workers compensation then be open to lawsuits from aliens.
Virginia decided in light of this problem to provide partial workers compensation benefits to illegal aliens. An illegal alien in Virginia (if injured on the job) can obtain medical benefits and compensation. However, the alien can only receive compensation if he or she is totally disabled.The illegal alien cannot receive any compensation (other than medical care) once the alien is released for some form of light duty work. The rationale for this is that the illegal alien cannot work legally in Virginia so no light duty work can be offered to the alien. The illegal alien can be paid for a specific loss of an extremity (for example a 20% loss of a leg).
By provided partial compensation remedies to aliens, employers in Virginia are protected from job injury lawsuits by illegal aliens.
IN SUMMARY, yes, the alien can receive some benefits in Virginia but the illegal alien does not receive the full range of compensation benefits that is available to a citizen in Virginia. 
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.


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.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766 or (800) 256-8862 or visit our website at Virginia Workers' Compensation Lawyer.

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.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766 or (800) 256-8862 or visit our website at Virginia Workers' Compensation Lawyer.

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.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766 or (800) 256-8862 or visit our website at Virginia Workers' Compensation Lawyer.

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.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766 or (800) 256-8862 or visit our website at Virginia Workers' Compensation Lawyer.

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.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766 or (800) 256-8862 or visit our website at Virginia Workers' Compensation Lawyer.

Do you have to use your own car in a light duty sales job proposed by the insurance company?

Recently I had a client (Bob)who was being job placed by the insurance company's so called vocational consultant (VC). The VC had to work with the Bob's work restrictions which were quite severe. The VC decided to offer Bob a door to door sales job which involved the use of Bob's personal car. Fortunately, the Virginia Worker's Compensation Commission had ruled in a case in 1993 that the insurer could not force a claimant to use his personal car in a light duty job. The Commission probably made this ruling on the grounds an injured worker like Bob would be losing a thing of value (wear and tear on his personal car) which he would not be compensated for.

Thus, I quickly sent a letter to the VC citing the 1993 case and the insurer and the VC gave up the idea of placing Bob in the door to door sales job.