In Virginia, an employee who suffers an injury at work may be entitled to certain workers’ compensation benefits, based on several factors that determine whether the injury is a “compensable” claim (i.e., whether the injury should be covered by workers’ compensation insurance, or not).
When determining whether an injury is compensable, some of the most important factors to consider are: whether the facts establish an employer-employee relationship, how the injury occurred, where the injury occurred, when the injury occurred, what the employee was doing when the injury occurred, the connection between the employee’s work activity and the injury, whether the employee sought medical treatment, whether the employee is still undergoing medical treatment, whether and how the injury was reported to the employer and whether the injury will result in permanent loss or disability.
In Virginia, all employers who regularly employ three or more employees, part-time or full-time, must carry workers’ compensation insurance. Further, when an employer hires subcontractors to perform work in the same trade, business or occupation, the subcontractor’s employees are included in determining the employer’s total number of employees. This means that employers who hire subcontractors with enough regular employees may still have the coverage obligations listed above. For employers required to have coverage, it is mandatory—there are no waivers and no exceptions.
An employer failing to insure for workers’ compensation when required by law can be assessed a civil penalty of up to $5,000 per occurrence.
In theory, especially given the employer’s insurance requirement, it should not be terribly difficult for an injured employee to receive workers’ compensation benefits for compensable injuries sustained in the workplace. However, it can be a challenge.
If the insurance company disputes the employee’s claim for workers’ compensation benefits, the insurance company will likely deny benefits, suspend wage loss payments, or fail to authorize necessary medical treatment and procedures, leaving the injured employee with expensive medical bills and no source of income.
All employees need to be aware of their rights and obligations when it comes to securing their workers’ compensation benefits. If you have been injured at work, you may need guidance when it comes to the process involved in filing a claim for benefits. When it comes to navigating a workers’ compensation claim, whether it appears to be accepted, disputed, denied, or even partially denied, it may be necessary to contact an experienced and knowledgeable workers’ compensation attorney.
Injuries Covered by The Virginia Workers’ Compensation Act
To be eligible for workers’ compensation in Virginia, the injury must meet ALL of the following requirements:
- occur in the course of the employment;
- be caused by a specific work-related duty or work activity; and
- happen suddenly, at a specific time.
Note that most injuries which occur gradually or from repetitive trauma are not covered by workers’ compensation. However, certain long–term health complications that arise due to exposure to harmful substances, like asbestos, in the workplace. Neither are injuries caused by an employee’s misconduct, or those which occur outside of the scope of the employee’s job duties. If the injury is covered, it is important to understand what kind of benefits to expect from the workers’ compensation claim.
Virginia has several different kinds of benefits, which are largely based on the factors listed above. Below, this article will provide a brief overview of those different types of workers’ compensation benefits. Here are some of the workers’ compensation benefits that can be claimed:
When an eligible injury occurs and is accepted as compensable by the workers’ compensation insurance carrier, then the carrier will provide the employee lifetime medical benefits for related, reasonable and necessary medical treatment, provided the employee follows the proper procedure.
When an employee becomes injured on the job; they are required to report the injury to their employer. From there, the employer or the insurance provider can provide the injured worker with a list of doctors from which the employee can choose for treatment. Then, the employee must undergo treatment with the selected healthcare providers. If the employee instead chooses to be treated by their own doctor, or one that is not in the carrier’s insurance network, the treatment may not be covered.
The employee may also be eligible for medical mileage reimbursement for travel to and from medical appointments.
If an employee is killed at work, the deceased employee’s spouse and dependents (e.g., children under 18) can receive workers’ compensation benefits. “Death benefits” include reimbursement for funeral, transportation and burial expenses. The benefits may also include certain wage loss benefits, but qualification for wage loss benefits in the event of an employee’s death depends on several factors.
Temporary Disability Benefits (Total and Partial)
Temporary Total Disability (TTD) Benefits are given when the employee is completely unable to work and is taken out of work completely by a treating physician, and may last until the injured employee is fully released back to work; or, they last until the employee has received benefits for the statutory maximum of 500 weeks.
“TTD” benefits are payable at 2/3 of the employee’s average weekly wages from before they were injured (this is based on an average of the wages received for the 52 weeks prior to the injury). If the injured employee is released to light duty, but their employer is unable to accommodate their restrictions with a light duty position, then the injured employee may receive TTD benefits while they are on light duty. However, if an employee is cleared for light duty work by his treating physician, is not under an award for TTD benefits with the Workers’ Compensation Commission, and the employer is either unwilling or unable to accommodate the restrictions, the employee must prove that they have made reasonable efforts to look for work within the restrictions in order to be eligible for TTD benefits.
Temporary Partial Disability (TPD) Benefits are given when the employee is able to perform modified or restricted work duties but cannot perform their regular job. Again, this is called “light duty,” and the employee may only perform work within the restrictions provided by their treating physician.
If the employer accommodates the restrictions, or the employee finds a light duty job, and they earn a lower wage than they earned prior to the injury, then “TPD” benefits are payable at 2/3 of the difference between the employee’s average pre-injury and post-injury wages.
Loss of Use Benefits (Permanent Partial and Permanent Total)
Permanent Partial Disability (PPD) Benefits are given when an employee loses the use or partial use of a body part, such as an extremity, or an eye (the neck and back are not covered for permanent loss of use benefits). The extent of an employee’s permanent impairment determines the amount that the “PPD” benefits will be.
Permanent Total Disability (PTD) Benefits are given when the employee permanently loses the use of two body parts, such as both hands, both feet, both arms, both legs, both eyes or any combination thereof. PTD benefits also apply in cases where the employee suffered an injury so severe that it leaves the employee permanently unable to find gainful employment.
The best way to understand if an injury is covered under the laws of workers’ compensation is to consult with an attorney.
Need more guidance?
Have you been injured on the job?
If you are pursuing a workers’ compensation claim, you need an attorney with the expertise, skills and knowledge to help get you the benefits you deserve.
At Geoff McDonald and Associates, P.C., we prepare your case, from filing the claim for benefits, to arguing before the Commission. We work for the injured workers of Virginia, and believe you are entitled to the full scope of benefits to which you are entitled under the law.
We will look at your specific circumstances and situation to determine what benefits you are entitled to and work diligently on your behalf throughout the claims process. For a free consultation, please call (804) 203-0581, or visit our website.
Sources: The Virginia Workers’ Compensation Act, § 65.2-100, et seq.
Virginia Workers’ Compensation Commission, http://www.vwc.state.va.us/