If you've been injured on the job, your employer should be able and willing to compensate you. The Law Office of Craig A. Brown knows that this isn't always the case. If your employer refuses to compensate you, or if they refuse to give you a fair amount for your injuries, you can count on us to help. Craig A. Brown is a work injury attorney who will fight tirelessly for your due compensation.
Contact us today to consult with a workers' comp attorney in Manassas, VA. Attorney Brown has helped countless clients with their cases, and he can help you, too.
In a case exemplifying Mr. Brown’s willingness to take on difficult challenges, he once represented a car salesman who was injured while driving to work in a dealership vehicle. Mr. Brown filed a workers’ compensation claim on the salesman’s behalf. Apparently peeved at his audacity, the dealership’s general manager called Mr. Brown to tell him, “Any fool knows your client’s accident is not covered under workers’ comp.”The general manager would live to regret those words. Mr. Brown refused to be bowed and pursued the case all the way through the Court of Appeals of Virginia, winning every step of the way. The automobile sales industry was so unhappy with the result that it later lobbied the Virginia General Assembly to change this precedent-setting outcome.
You can rely on workers' compensation to cover a variety of expenses, including:
The 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.
A. What Workers’ Compensation Is
When an injury is covered by the Act (and not all workplace injuries are) the injured employee has certain core entitlements. He may claim: 1) wage loss compensation; 2) permanent injury compensation (in limited instances); and 3) injury-related medical expense coverage.
1. Wage Loss Compensation
Total Wage Loss
If 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
If 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.
One Final Note: The Maximum and Minimum Compensation Rates
We cannot end our discussion of wage loss benefits without mentioning the maximum and minimum compensation rates prescribed by the Act. The Act contains an arbitrary ceiling above which no highly paid claimant can recover for his wage loss. Likewise, it contains an arbitrary floor below which no poorly paid worker must settle for his weekly compensation. The maximum and minimum rates are based upon a calculation of the average weekly wage of the Commonwealth (determined from contribution reports from the Virginia Employment Commission, excluding federal workers). The average weekly wage of the Commonwealth is set as the maximum compensation rate. The minimum compensation rate is set at 25% of this figure. These figures are recalculated annually with the new maximum and minimum rates taking effect every July 1st. As of July 2018, the maximum weekly compensation rate is $1,082.00. The minimum rate is $270.50.
Simply put, if an injured worker is so highly paid that two-thirds of his AWW exceeds the maximum compensation rate, he receives only the maximum rate for his wage loss. (For example, a claimant whose AWW is $2,000.00 is capped at the maximum weekly compensation rate of $1,082.00 even though 66 2/3% of his AWW is $1,333.33). The same analysis applies to the determination of temporary partial disability entitlements. Poorly paid workers benefit from the minimum compensation rate. If two-thirds of their AWW is less than the minimum compensation rate, they receive the higher minimum rate. However, in no instance may an injured worker’s compensation be greater than his pre-injury AWW. (For example, if an injured worker’s AWW is $200.00, he receives $200, not the minimum rate).
2. Permanent Injury Compensation
While 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.
A Final Word About the Cash Entitlements
Generally speaking, the right to weekly compensation for TTD, TPD and PPD, in any combination, is capped at 500 weeks. This means that an injured worker who draws 500 weeks of TTD benefits will never receive compensation for a covered permanent injury. Furthermore, such an injured worker who returns to the workforce in a lower paying light duty job after receiving 500 weeks of TTD benefits will never receive compensation for his continuing wage differential. Finally, and most significantly, the badly injured worker who receives 500 weeks of wage loss benefits and who can never return to the workforce is cut off from all forms of compensation and is left to fend for himself once he draws that 500th week of disability payments.
Only claimants who qualify for permanent and total disability (PTD) benefits can avoid this harsh result, and such claimants are rare. PTD benefits are payable for a lifetime, but they are only available to a small class of claimants. Essentially, one can qualify for lifetime benefits if he: i) suffers a brain injury that renders him permanently unemployable in gainful employment; or ii) suffers a permanent loss of loss of use of both hands, both arms, both feet, both legs, both eyes or any two thereof in the same accident; or iii) suffers an injury which, for all practical purposes, results in total paralysis. Needless to say, the great majority of industrial accidents do not produce entitlement to lifetime cash benefits.
3. Injury-related Medical Benefits
Injured 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.)