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