Thursday, December 31, 2015

Why a Repeitive Injury at Work is not compensable as a Workers' Compensation Claim in Virginia

You are injured at work so you would naturally expect to receive compensation under the workers' compensation laws. In Virginia, if is a repetitive trauma injury, you will not be successful.

In Virginia you can be compensated for an injury at work or for an occupational disease. Unfortunately, the Virginia Supreme Court in a series of decisions in 1996 decided an injury resulting from repetitive trauma was "not compensable" as either an accident or as a disease. Thus, injuries such as tendonitis, back injuries, knee injuries, neck injuries, and knee injuries that occurred over a period of time (even though occurring at work) were not compensable.

In a reaction to the Virginia Supreme Court decisions, the Virginia legislature met in 1997 to decide whether any repetitive injuries should be compensated under Virginia's workers' compensation laws. The legislature decided to amend Virginia Code Section 65.2-401 to provide limited coverage for two types of repetitive trauma problems: hearing loss and carpal tunnel syndrome caused by work. However, the General Assembly said these problems could be compensated under the Workers' Compensation Act but only if the conditions were proven by "clear and convincing evidence"  as having developed from the work place environment. In other workers' compensation cases in Virginia  claimants only need to prove their cases by a mere "preponderance" of the evidence.

In an early study of carpal tunnel cases after the 1997 amendments only 16% of claimants were successful in proving their cases under the "clear and convincing" evidentiary standard.

So, the following activities causing injury would not be compensable under the Virginia Workers' Compensation   Act:

*lifting over a period of time with resulting neck or back injury;

*typing  at a computer with resulting carpal tunnel syndrome (unless can qualify under the clear and
  convincing evidence standard;

*hand or arm  problems resulting from repetitive activity at work;

*stocking shelves over a period of time resulting in any orthopedic injury;

*standing, kneeling, crouching or sitting for a period of time.

In summary, even though a worker in Virginia has suffered an injury at work, the claim may still be denied if the injury is caused by repetitive trauma and not by a specific accident. For example, if a worker lifts 40 boxes in a work day and wakes up the next day with a back aches, the worker does not  have a winning claim in Virginia. On the other hand if the worker lifts box number 40 and feels a sharp pain then the worker may have a winning claim.

For more information contact workers' compensation lawyer Jerry Lutkenhaus (804) 358-4766 or visit Virginia Workers' Compensation Lawyer.

Sunday, December 13, 2015

The 5 Winning Points to Make to the Social Security Judge

I have represented claimants in over 1,000 Social Security Disability hearings. These are some suggestions about the claimant's testimony before the judge:

First, if you have a case that involves chronic pain you are going to be asked what is your pain level on a 0 - 10 scale. If you claim it is a ten, then be aware if your medical records show you have always told your doctor it is a five or six. The judge will then say you have no credibility.

Second, in almost every case, you will be asked how long you can sit, how long you can stand, and how much you can lift. Again, this should be consistent with your medical records. This is especially the case if your doctor has completed a functional capacity evaluation on your residual ability to do various activities. You need to review this before the hearing.

Third, you will be asked about the side effects of your medications. This could be important if the side effects are disabling. However, you need to make sure the side effects are side effects that result from the particular drug. Also, even though you are taking a drug that could cause side effects it does not mean it causes side effects in your case (especially if you have never complained about these drugs in the medical records).

Fourth, you need to tell the truth about everything. Most likely, the judge will be very familiar with your medical record. Thus, if you exaggerate your complaints and this is contradicted by the medical record then the judge is not going to believe you. Also, if a friend or relative testifies for you, you need to make sure you and the witness are on the same page. It is not going to do you any good if the friend says you ride motorcycles with him when you claim to be bedridden.

Fifth, often a vocational expert will testify at your hearing. It is important that the consultant hears your testimony. Generally, he or she will be a neutral witness. The vocational consultant will be asked to state the skill level and strength level of all the jobs you have done in the last 15 years. Then the judge and perhaps your lawyer will ask the consultant a series of hypothetical questions. Often, the first question will ask the consultant to assume you have the same restrictions that have been previously stated by Social Security. This will of course elicit a response that you can do either your past relevant work or some form of light duty work. Hopefully, there will be additional questions to the consultant based on your impairments and your testimony that will result in positive answers from the consultant that will help you win your case. One question would simply be if you are credible about your complaints would the expert rule out all jobs.

In summary, these are five suggestions about testifying before a judge. The judge will decide the case largely on the medical records but your testimony can help your case. For more information about Virginia workers' compensation or Social Security Disability call Jerry Lutkenhaus at (804) 358-4766 or 1(800) 256-8862 or visit our website at Virginia Workers' Compensation & Disability Lawyer.

Thursday, November 26, 2015

Virginia Workers' Compensation & the Employer's Application for a Hearing

You are injured and cannot work. You are receiving workers' compensation weekly payments and medical coverage. Then you receive an Employer's Appilcation for a Hearing. What does this mean?

First, it means your weekly compensation payments are suspended.

Second, your medical coverage may continue.

Third, it does not mean your payments are permanently cut off.

Fourth, most of the time a medical report will be attached to the Employer's Application saying you have recovered from your injury (or in some cases that you have returned to work).

Fifth, if your treating doctor has returned you to work, then there may be no defense to the Employer's Application.

Sixth, however, many times the report will "not" be from your treating doctor rather it will be from a so-called independent medical examiner. One thing you can be sure of the doctor of examiner is not going to be "independent" at all. Instead, the insurer will procure this examination because the treating doctor has not returned you go work soon enough.

Seventh, despite the fact the medical release did not come from the "treating doctor" but rather an outside doctor the Senior Claims Examiner may find it constitutes "probable cause" and forward it for   a hearing which means the suspension of compensation will continue.

Eighth, the injured worker has 15 days in Virginia to respond to the Employer's Application. Most of the time the best response is an updated report from the treating doctor which shows the "independent  doctor" is wrong and the worker is still under a disability. If the treating doctor can write a "home run" report the Senior Claims Examiner may deny "probable cause" and refuse to refer the Application for a hearing (which means compensation payments will have to resume).

In summary, an injured worker who receives an Employer's Application for Hearing still has rights and can contest the Application. Of course, the worker needs to contact an experienced Virginia worker's compensation lawyer immediately.

For more information about this or any Virginia workers' compensation problem, contact Jerry Lutkenhaus at 1-800-256-8862 or visit my website at

Virginia Workers' Compensation Advanced Lawyers Retreat & Marijuana

Recently, I attended the Virginia Workers' Compensation Advanced Lawyers' Retreat in Richmond, Virginia. The conference was highlighted by a presentation by a VCU toxicologist. One of his points was marijuana could stay in your system for a long time. This of course can cause a problem for many workers who are injured on the job. Many employers will require the injured worker to take an immediate urine test when they are injured. Also, many employers have a zero tolerance level for illegal drugs. As a result, a positive test could easily result in termination of employment due to the violation of the drug policy. But the toxicologist pointed out a positive marijuana test does not prove one is under the influence of marijuana at the time of the accident. So, employers cannot say based on the positive test marijuana "caused" the accident based on the test.

One problem is Virginia Code Section 65.2-306 creates a rebuttable presumption that if one tests positive for marijuana then one is "presumed intoxicated" at the time of the accident. The injured worker can overcome this presumption by clear and convincing evidence that he/she was not intoxicated at the time of the accident.

Thus using marijuana on the job can have two very bad results:

First, you can be fired for violation of the employer's drug policy. This termination can not only forfeit employment it can be used to cut off workers' compensation if you are released to light duty work after an injury. The reason is the employer cannot give you a light duty job because your employment was terminated for violation of the employer's drug policy.

Second, the employer can try to use the violation to deny the medical bills and any compensation for the accident on the grounds the injured employee was "presumed intoxicated" at the time of the accident.

In summary, the VCU psychologist made the point marijuana can stay in one's system for a long time after use. And as a workers' compensation lawyer, I can say a positive test for marijuana can have dire consequences for one's employment and one's workers' compensation claim.

For more information about this or any Virginia workers' compensation problem contact Jerry Lutkenhaus at 1-800-256-8862 or visit my website at

Sunday, August 9, 2015

The Upcoming Drastic Cut in Social Security Disability--Avoided

Many on Social Security Disability do not know it but the Disability Trust Fund is running low on money. In fact in 2016, only one year away, the Fund will not be able to pay full benefits. It is expected there may be as much as a 19% reduction in benefits.

This problem is well-known to Congress but nothing has been done to address this issue. The Obama administration has proposed a temporary borrowing from the regular Social Security fund to address this shortfall. Republicans in Congress have not agreed. Many of them regard our disabled workers as deadbeats and slackers who are mooching off of the system. They ignore the fact the disabled workers have all been found "disabled" by the Social Security Administration.

What disabled workers can do is contact their Congressman now about this problem before there is a reduction in benefits.


For more information about Virginia workers' compensation call Jerry Lutkenhaus at (804) 358-4766 or 1(800) 256-8862 or visit our website at Virginia Workers' Compensation Lawyer.

Insurer Refuses to Pay Injured Worker's Medical Bills in Virginia

In my workers compensation practice in Virginia, I often see workers who were injured at work and the employer's workers compensation insurers have not paid the worker's medical bills. Why is this the case?

First, did the employer know about the injury? Was it properly reported to the appropriate person?

Second, did the employer furnish the injured worker a panel of three (3) doctors from which to choose a doctor from? Did the injured worker choose a doctor from this panel? (In Virginia the injured worker has a right to a panel of three doctors for his/her injury.)

Third, was the treatment (an MRI, physical therapy, prescriptions, etc.) authorized by the doctor from the panel?

Fourth, did the treating doctor send the bill in question with his/her treating note to the insurer? If no the worker can request that this be done.

Fifth, if the injury has been denied by the employer, then the injured worker must file a claim with the  
Virginia Workers' Compensation Commission and consult an experienced workers' compensation lawyer.

For more information about Virginia workers' compensation call Jerry Lutkenhaus at (804) 358-4766 or 1(800) 256-8862 or visit our website at Virginia Workers' Compensation Lawyer.

Brain Injury at work in Virginia.

I attended a seminar given by Richmond, Virginia's number one brain doctor. He explained traumatic brain injury (TBI) to the Virginia Trial Lawyers Association. It was noteworthy that he said 95% of people with a TBI recover without any permanent difficulties. I guess this is why a football player can have his "bell rung" and go right back to playing. However, nowadays the player is held out of playing for 4-5 days until all his symptoms have cleared. That was not the case when little was known about brain injuries.

But what about the worker who suffers a concussion on the job?

In Virginia the insurance companies are quick to accept a head injury but they are reluctant to accept a brain injury or TBI. One reason is that a TBI makes the injured worker eligible for lifetime compensation. About 99% of Virginia Workers' Compensation Injury Victims cannot receive wage compensation after 500 weeks. One exception to this is a TBI.

An injured worker with a TBI if still disabled for work after 500 weeks from his date of injury can apply for lifetime wage replacement. So if you are a worker who is one of the unfortunate TBI sufferers who did recover from his/her TBI you should know this option.

A second reason insurers don't want to agree to an award for a TBI is that means they will owe lifetime medical coverage for a "brain" injury.

So, what can an injured worker do if he or she has a TBI that does not heal within 90 days? He or she should consult a Virginia Workers' Compensation lawyer as soon as possible.

For more information about Virginia workers' compensation call Jerry Lutkenhaus at (804) 358-4766 or 1(800) 256-8862 or visit our website at Virginia Workers' Compensation Lawyer.

Sunday, May 31, 2015

High Blood Pressure and your Virginia Workers Compensation Claim

Recently, I have had a number of clients with this problem. They have a painful condition due to a Virginia Workers' Compensation back or neck injury. At the same time they have high blood pressure.
The back or neck doctors "refuse" to operate or do any invasive procedure due to the high blood pressure. The workers' compensation insurance company and the doctors ask the claimants to get their blood pressure under control.

The claimants have a big problem. They would like to control their blood pressure. They know it is dangerous. They would like to obtain relief for their back or neck problems but the doctors refuse to do anything due to the high blood pressure. In most cases, they no longer have health insurance because that expired when they were unable to return to work due to the accident. Thus, they are not able to handle a problem like high blood pressure without insurance.

The workers' compensation insurer will not pay for high blood pressure case unless it was caused by the accident. The orthopedists who are taking care of the orthopedic problem are reluctant to state the "accident" caused the high blood pressure. This is so even if the claimant did not have high blood pressure before the accident. This is so even though "pain" can aggravate or exacerbate high blood pressure.

In some cases the Virginia Workers' Compensation Commission will require the workers' compensation carrier to take care of an unrelated problem in order to correct a problem caused by the accident. Most of the time, the workers' compensation carrier will refuse to try to correct a problem such as "high blood pressure" if it was not caused by the accident. The Rule appears to be the Commission will not force the insurers to control high blood pressure if it existed before the claimant's accident. Usually, it did.

In conclusion, it appears my clients will stay in Limbo regarding their high blood pressure unless I can obtain some kind of relief from the Virginia Workers' Compensation Commission.

Monday, April 13, 2015

Three important facts about Social Security Disability & Virginia Workers Compensation

There are at least three (3) important things to know about Virginia Workers' Compensation and Social Security Disability:

First, even though the worker has been found "disabled" by Social Security this is not binding on the Virginia Workers' Compensation Commission or the workers' compensation insurance company. If the treating doctor says you can do light duty work, the insurance company will continue to try to find you light duty work despite the decision by Social Security.

Second, in most instances workers who are on workers' compensation will have their Social Security Disability benefits reduced because they are also receiving workers' compensation payments. The formula is if a combination of Social Security payments and workers' compensation payments exceed 80% of what Social Security finds to be the worker's pre-disability wages, the Social Security payments will be reduced.

Third, in a settlement current Social Security rules allow the attorney for the injured worker to pro-rate the lump settlement over the worker's life expectancy. By using this formula the attorney can eliminate the offset.

For more information about Virginia workers' compensation call Jerry Lutkenhaus at (804) 358-4766 or 1(800) 256-8862 or visit our website at Virginia Workers' Compensation Lawyer.

Thursday, April 2, 2015

Sexual Harassment in Virginia may lead to a Constructive Discharge Lawsuit!

In a recent case (Faulkner v. Dillon VLW 015-3-141) Ms. Faulkner alleged the defendant had sexually harassed her. The defendant was the owner of dry cleaning business in Bluefield, Virginia. As a result, she re-signed and commenced a lawsuit for constructive discharge in the United States District Court in Abingdon, Virginia.

Virginia has traditionally followed the "employee at will" doctrine. This essentially means an employer can discharge an employee for any reason that is not illegal. The Supreme Court of Virginia has never recognized constructive discharge as an exception to the employee at will rule.

Notwithstanding this, US District Court Judge Jones said there was a growing trend in the Circuit Courts in Virginia to recognize this exception. Judge Jones allowed Ms. Faulkner's claim to go forward as an exception to the "employee at will" doctrine.

For more information: contact Jerry Lutkenhaus at (804-358-4766 or 1(800) 256-8862 or visit our website at Virginia Workers Compensation Lawyer.

Tuesday, March 24, 2015

Mediation May Be a Good Idea in Your Virginia Workers' Compensation Case

When there is a dispute about your injury at work, the Virginia Workers' Compensation offers a mediation process to work out the dispute. Is going this route a good idea? These are the reasons why I feel it is a good idea:

  1. It does not cost to go to a mediation.
  2. The mediation is conducted by a Deputy Commissioner.
  3. The mediation is confidential.
  4. If the parties agree, you can work out a settlement at a mediation.
  5. If the parties do not agree the case can be set for a hearing.
  6. The claimant can obtain a confidential opinion about the merits of his/her case.
  7. The claimant can find out what is bad about his/her case. 
What are the bad things about a mediation?
  1. It does take time to set up a mediation. 
  2. The insurance company is not forced to settle at a mediation. 
  3. The insurance company can find out the bad things about the claimant's case. 
In summary, I believe mediations on the whole benefit the claimant. 

For more information, contact Jerry Lutkenhaus at (804)-358-4766 or at  1(800) 256-8862 and you can visit our website at : Virginia Workers' Compensation Lawyer

Monday, February 9, 2015

3 Ways to Protect your Virginia Workers' Compensation Claim

One, you need to report your injury immediately. Technically, you have 30 days in Virginia to report your injury on the job. However, if the accident is not immediately reported, the insurer will have reason to deny the claim. How, if you wait, does the insurer know your injury occurred on the job.

Two, you need to go to a doctor as soon as possible. You can try "to grin and bear it" for as long as possible. However, if you want the insurer to accept your claim without any problems, the you must immediately seek medical attention for your injury. Then, you must give the doctor "a clear history" regarding how you were injured. If you say you don't know what happened and that appears in the medical history, then your claim will be denied.

Third, if you have a serious injury on the job, then don't hesitate to contact a Virginia Workers' Compensation lawyer. You need to obtain an opinion about your case as soon as possible.

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

Monday, January 26, 2015

Can you still get Virginia Workers' Compensation benefits if your motor vehicle accident was caused by use of a cell phone?

As most people are aware an increasing cause of motor vehicle  accidents is the driver being distracted by his or her use of a cell phone.

In the past, the Virginia Workers' Compensation Commission has allowed coverage for injured workers who   have an accident caused by use of the company business cell phone while driving. The reason for compensability is the use of the cell phone is a risk of the employment.

However, the 2015 Virginia General Assembly almost ended this workers' compensation coverage. A bill was proposed making it a crime to drive a motor vehicle and use a cell phone at the same time. In Virginia it was already a crime for a teenager to use a cell phone while driving. The proposed bill would extend this prohibition to all adults. The bill did not pass. It was referred to a committee for more study.

If the bill had passed, it would probably be impossible to obtain workers' compensation benefits in Virignia if your motor vehicle accident was caused by cell phone use. This is so because the insurer would assert you cannot obtain benefits if you were committing a "crime" at the time.

This means the Turpin Case is still good law in Virginia. The Commission said in that case:

Commissioner Roger L. Williams issued the opinion for the Commission, ultimately deciding that the employer was liable for workers’ compensation and stated that it didn’t matter who footed the bill for the cell phone, what mattered in this case was Ms. Turpin’s duty to be attentive to the cell phone while on-call and that her attentiveness to the ringing cell phone and potential work-contact was enough to cause her to be inattentive to her driving. "There was no way the claimant would know, in advance, whether a particular call was employment related. She was required to answer her cell phone, and be attentive to it, because it could have been an employment-related call." Turpin v. Wythe County Community Hospital, VWC File No. 0000018-30-28, 5 (December 29, 2010).

In summary, in Virginia you can still hope to obtain workers' compensation benefits even though your motor vehicle accident was "caused" by use of a cell phone.

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

Saturday, January 17, 2015

Seven ways to lose your Virginia Workers Compensation Rights!

You have an accident at work in Virginia. The insurer accepts the claim. It sends you an agreement form which you sign and return and the insurer files it with the Virginia Workers' Compensation Commission. The Commission enters an award for weekly compensation and lifetime medical rights for your injury.

But as soon as you are on compensation the insurer looks for ways to cut it off. These are some of the common ways this is done.

1.  Obtaining a doctor's release. The insurer will often assign a Nurse Case Manager to your case. The Nurse will attend your doctor's appointments and often request the doctor to release you back to work before you are ready.

2.  The Employer creates a job. You cannot do your pre-injury job so the Employer creates a job you can do. Sometimes this can be no more than sitting and doing nothing. Sometimes it will be sitting at a desk answering the phone. If the Employee refuses to do the job, the insurer can cancel your future compensation rights.

3.  The False Light Duty Job. The Employer provides a light duty job which is "not" a light duty job and violates the doctor's restrictions. You refuse to do it and the Employer tells the insurer your refused a light duty job.

4.  Video Surveillance. The insurer assigns a private investigator to your case. He takes a video which shows you can do much more than what you told the doctor or the video shows you working on the side.

5.  The Independent Medical Examination (IME). The insurer often thinks your doctor is too claimant oriented. Then the insurer will schedule the claimant to be examined by an insurance company doctor. This exam will not be "independent" even though it has that name. If the IME doctor says you can work, the insurer will attempt to cut off the claimant's compensation.

6.  Employer Harassment. Even if you are successfully doing the light duty job the Employer provides, the Employer or other employees may harass you thinking you are faking or exaggerating your disability. If you get frustrated by this and walk off the job, the insurer can use this to cut off future compensation.

7.  The Bad Functional Capacity Evaluation (FCE). Many doctors do not like to set work restrictions. Instead, they will prefer that this be done by therapists trained as disability examiners. However, the insurers know the disability examiners who are friendly to the insurers. Often, these will claim the injured worker did not give full effort during the exam or was faking his or her complaints.

In summary, these are seven ways to lose your workers compensation rights in Virginia.

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