Workers' Compensation in Virginia
This article is intended as a very basic primer on Workers' Compensation Law in Virginia. The core entitlements under the Virginia Workers' Compensation Act will be discussed.
IntroductionThe Virginia Workers* Compensation Act (the Act) was enacted in the early twentieth century in response to growing concerns over the inequities present in the common law*s attitude toward injured workmen. With the advent of the industrial revolution in the nineteenth century and the economic and social benefits flowing therefrom, courts were reluctant to retard economic growth. As a result, doctrines developed that favored industry to the detriment of labor. The development of these new employer-friendly doctrines and the vigorous application of old ones made it difficult, if not impossible, for injured workers to successfully sue their employers for damages resulting from workplace injuries. Often, they were left injured with no remedy.
As societal attitudes changed, state legislatures began to enact legislation to right this perceived wrong. Virginia joined this movement in 1918, enacting the original Act based largely upon Indiana*s system. In an early case discussing the Act, the Virginia Supreme Court offered an excellent overview of the net effect of this legislation. The court explained:
[The Act] places upon industry as an expense of the business the pecuniary loss, measured by the compensation provided in the statute, attendant upon all accidents to employees within the hazards of the industry. It extends the employer*s liability to all accidental personal injuries *arising out of and in the course of the employment,* the expense of which is added to the cost of production. The employer surrenders his right of defense [under the common law]. . . . The employee surrenders his right to a trial by jury and agrees to accept an arbitrary amount fixed by statute in lieu of full compensation for the injuries sustained . . . . The issue of negligence or non-negligence of the employer and the fellow servants is eliminated.
Feitig v. Chalkley, 185 Va. 96, 98, 38 S.E.2d 73, ___ (1946).
With this overview in mind, let*s turn to a discussion of the nuts and bolts of present-day workers* compensation in Virginia.
Total Wage Loss CompensationIf a covered injury produces total wage loss, the employee is entitled to receive weekly compensation equal to 66 2/3% of his pre-injury Average Weekly Wage (AWW) during the period of such total wage loss. These benefits are referred to as temporary total disability (TTD) benefits. There are two ways for a claimant to meet the definition of total disability: 1) by being declared medically unfit for all work activity; or 2) by being declared medically unfit for his pre-injury job and suffering unemployment as a result thereof. Because the benefits are a percentage of this wages, determination of the injured employee*s AWW drives his future entitlements and the employer*s/insurance carrier*s future exposure. In determining the AWW, the injured worker*s gross (pre-tax) income is utilized. Furthermore, overtime, bonuses, tips and perquisites (meals, lodging, uniforms, etc.) are to be included in calculating the gross income. Finally, if an employee had several jobs with different employers at the time of his injury, Virginia law permits him to include the gross pay from such other jobs if the tasks involved are similar to those required in the job upon which he is injured.
After the employee*s gross pay is determined, the preferred method of calculating the AWW is to consider all gross income as defined above for the 52-week period leading up to his industrial accident and dividing that number by 52. If the employee had less than 52 weeks of employment before his accident, the above analysis should be applied using the actual number of weeks actually worked. If the number of weeks involved is too small to be of help, the Virginia Workers* Compensation Commission (the Commission) will consider the earnings of a *like employee*, a worker *of the same grade and character employed in the same class of employment in the same locality or community.*
One important exception to the preferred method involves claimants who receive a promotion and corresponding pay raise shortly before their industrial accidents. Rather than base their AWW on a 52-week analysis, those employees are entitled to compensation based upon the higher wages enjoyed in the new position.
Once the employee*s AWW is calculated, that figure sets his entitlement for the life of his case. There is no consideration given to the fact that he may have enjoyed periodic promotions and pay raises over the years had he not been injured. Many times a claimant who has been receiving temporary total disability benefits for years may say, *I*m stuck receiving compensation based upon the wages I earned years ago. If I hadn*t been hurt, I would be earning much more money now. That*s not fair.* That employee is right on both counts*it*s not fair and he is stuck. (While injured workers receiving total disability benefits may be eligible for annual cost-of-living adjustments, the adjustments over the last ten years have averaged just 1.65%).
Partial Wage Loss CompensationIf an injured worker returns to work with doctor-imposed physical restrictions that prevent him from performing all of the rigors of his pre-injury work, he is entitled to compensation if his restrictions cause post-injury wage loss when compared to his pre-injury AWW. These benefits are known as temporary partial disability (TPD) benefits.
Temporary partial disability benefits are payable at the rate of 66 2/3% of the difference between the claimant*s pre-injury AWW and the average weekly wages he is able to earn after the injury. Note that physical disability by itself is not compensable; there must be corresponding wage loss in order for the employer and its insurer to have any financial obligation to an injured worker who has returned to work. If claimant returns to work in a restricted capacity, suffering from constant pain and in need of regular medical care, the restrictions, pain and medical needs are irrelevant if he earns his pre-injury AWW notwithstanding.
The Virginia General Assembly has made a policy decision that employers and insurance carriers are not required to pay temporary partial disability benefits to injured workers who are not *eligible for lawful employment* (e.g., undocumented aliens). Furthermore, this forfeiture also applies to claimants who would otherwise be eligible for continued temporary total disability payments under the second definition referenced above (partially disabled/totally unemployed). Thus, while undocumented aliens are not barred outright from coverage under the Act, they are prohibited from receiving wage loss compensation if they have any residual work capacity following their accidents.
Permanent Injury CompensationWhile temporary total and temporary partial disability benefits require wage loss before they are payable, the Act provides special monetary compensation without regard to wage loss for certain permanent injuries. The Act simply lists the body parts that trigger eligibility for what the Act terms permanent partial disability (PPD) benefits. If a claimant has an injury to a listed body part that is permanent, he is entitled to some compensation therefor. The amounts are not great, but they are better than nothing. Total loss or loss of use of a listed body part entitles the injured worker to a set amount of weekly compensation payments at his TTD rate (66 2/3% of his AWW). Partial loss or loss of use of such body parts entitles the worker to the corresponding percentage of the whole.
The covered body parts and their respective values are: thumb (60 weeks); index finger (35 weeks); second finger (30 weeks); third finger (20 weeks); fourth finger (15 weeks); big toe (30 weeks); all other toes (10 weeks each); hand (150 weeks); arm (200 weeks); foot (125 weeks); leg (175 weeks); loss of vision of an eye (100 weeks); loss of hearing of an ear (50 weeks); severely marked disfigurement of the body (no more than 60 weeks).
The above list of body parts is all-inclusive. Note what is missing from the list (e.g., the neck, the back, the whole body, sexual function, excretory function, speech). Permanent injury to any of these parts/systems is worthless in Virginia. Only if such injury produces wage loss or a permanent loss of use of a listed body part will an injured worker ever receive some compensation for such a loss.
Injury-related Medical BenefitsInjured workers are entitled to medical attention free of charge for their injuries. If their claim is denied by the employer or its insurer, the workers are free to choose their own treating physician. If their claim is later ruled compensable by the Commission, the employer is stuck with the employee*s selection. On the other hand, if the employer/insurer accepts responsibility for the injury from the outset, they may force the claimant to choose a physician form a list of at least three physicians that they provide. This gives the employer and its insurer some degree of indirect input into the nature and extent of the claimant*s medical care.
Unlike the cash benefits discussed above, a claimant*s right to accident-related medical care is unlimited in terms of amount and duration. Medical benefits are available for as long as necessary. So long as a claimant can demonstrate the medical care he requests is reasonable in amount, related to his accident, medically necessary and rendered by an authorized physician, the employer must pay for such care.
In addition to paying for medical care for the injured worker, the employer must provide necessary prosthetics and the like when his injured limb cannot be saved. (Incidentally, if the worker already had a prosthesis at the time of his accident, the employer is responsible for repairing or replacing it if it is damaged in a compensable accident.) Furthermore, the injured worker is entitled to provision of wheelchairs, walker, canes and crutches (and training in the use thereof) as the nature of his injury may require. Finally, if the treating physician and the Commission determine that it is medically necessary, the employer will be responsible for furnishing bedside lifts, adjustable beds, and modifications of the employee*s home (ramps, handrails, doorway alterations or other appliances). This latter entitlement, however, has an aggregate limitation of $42,000.00 for the life of the claim.
A claimant*s mileage to and from his medical appointments is considered a medical expense under the Act for which he is entitled to reimbursement. (The current rate is $0.555 per mile.)