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 .