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.