What happens when you get hurt at work in Virginia
This guide will help you understand what work accidents are workers' comp related and which ones are not. Just because it happens at work does not mean you have a comphensable workers' compensation claim.
If I get hurt at work it's a comp claim right?The answer to this question is NO. Many people think that just because you get injured on your job while performing duties for your employer means you have a comphensable workers compensation claim. This could not be further from the truth. It is important to know the differences in an injury by accident and what is called a repetitive motion/cumulative trauma injury.
An example of an injury by accident would be lifting a box of heavy material to put on a shelf and while lifting the box you felt a pain in your back. That is called a sudden, identifiable, mechanical breakdown of the body and is considered an injury by accident, however, if you were lifting boxes for 4 hours while unloading a truck and the next day you feel achy in your back but continue to work until you cannot do it anymore, that is called a cumulative trauma injury. An injury from overuse.
In my 20 years of practicing before the Virginia Workers' Compensation Commission this is one of the most common areas of confusion.
Injuries due to cumulative trauma are not covered in Virginia.
Reporting your InjuryYou should always report your accident to the employer when it happens. You must report your accident to a supervisor/manager /human resource department. The employer has the responsibility of offering a list of three doctors to you so that you may select a doctor for your medical treatment. After you are hurt at work it is not uncommon to expect your employer to do the "right thing." After all, to a certain extent you trust your employer and feel like they will take the necessary steps to make sure you get better and are protected. Do not depend on your employer to tell you what to do. Stay informed and educate yourself on workers' compensation benefits. Whether your injury is a valid workers' compensation claim or not depends on how the accident happened. It often turns of very specific facts and circumstances as to whether the accident is covered or not. Insurance companies are well trained to have their adjuster ask questions to create a fact situation in their favor. I don't recommend giving a recorded statement tot he insurance carrier without first consulting an attorney.
How do I get my benefits?If you don't have an Award with the Virginia Workers' Compensation Commission you have nothing. Without an Award the carrier is free to be "nice" or stop being "nice" at any time. It is your responsibility to file your "Claim for Benefits" to protect your interests or to sign accurate agreement forms to have your Award entered with the Virginia Workers' Compensation Commission. It is not unusual for the insurance company to initially pay your medical bills and you wages. However, say a few months go by and your doctor releases you to "sit-down" work. You have been a logger all your life and there are no "sit-down" or "light -duty" work in logging. The insurance company decides to stop paying your wages because you are able to work. Fair right?
If you have an award ordering the insurance carrier to pay your wages the carrier cannot just stop paying you because the doctor releases you to light-duty work. If you don't have an award the insurance can stop paying you at any time. If they were being nice chances are once the doctor releases you to "sit-down" or "light-duty" work they will stop paying your wages. Contact us for help!
What is marketing your remaining work capacity?If you don't have an Award and are able to do light-duty work the law requires you to demonstrate that you have been looking for work. This is called "marketing your residual work capacity". You must show that you are making a good faith effort to find work that your are qualified to do and that you believe you can do within your restrictions. A Deputy Commissioner will decide if your efforts of looking for a job are good enough. Each case is very fact specific but there are guidelines, Some things a Deputy Commissioner will consider are:
The nature and extent of your disability
Your training, age, experience and education
The nature and extent of your job search
The Deputy Commissioner may presume you have made reasonable effort to secure employment if you can show :
You have registered with the Virginia Employment Commission
That you have directly contacted at least five potential employer per week and
If appropriate, that you cont acted the pre-injury employer for light-duty work.
The insurance company represents your employer not you. Make sure you take the necessary steps to get your Award entered.