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.