Workers Comp

Workers' Compensation Claims

Michael A. Kernbach

As a basic rule, any person employed or injured in the Commonwealth of Virginia may file a claim for workers' compensation benefits. Workers compensation benefits are wage indemnity (500 weeks maximum; capped at $606.00 per week for 2000); medical treatment for as long as is necessary; and certain monetary benefits for impairments to extremities and the like.

The law requires any employer with three or more employees to carry workers' compensation insurance. An employer in violation of law is usually sued by the Commonwealth of Virginia for payments made by the Uninsured Employers Fund who covers uninsured injured or sick employees.

Notice of an injury must be given to an employer within 30 days of its occurrence. An illness such as an occupational disease must be reported within 60 days.

An injury must arise out of and in the course of the employment. The term "arise out of" refers to the time, place and circumstances under which the accident takes place (injuries growing out of risks peculiar to the nature of the work). The term "in the course of" refers to the time, place and circumstances under which the injury occurred (accident occurs in the course when it takes place within the period of employment; location where the employee may reasonably be; and while he is reasonably fulfilling the duties or engaged in incidental thereto).

AS A GENERAL RULE:

a) Volunteers are not covered under Virginia Workers' Compensation Act.

b) Independent contractors are not covered under Virginia Workers' Compensation Act.

c) Injuries resulting from "overuse" or "cumulative trauma" are not covered under Virginia Workers' Compensation Act except for hearing loss and carpal tunnel syndrome.

d) Idiopathic conditions are not covered under Virginia Workers' Compensation Act except where effects of idiopathic condition places employee in a position increasing the dangerous effects of such a fall such as height, exposure to machinery, sharp corners or in a moving vehicle.

e) Diseases are not injuries cannot be converted into diseases. A disease caused by cumulative trauma or repetitive motion is not compensable except for hearing loss and carpal tunnel syndrome.

f) There are no exceptions under the Virginia Workers' Compensation Act for pre-existing conditions.

g) There is no prohibition on filing subsequent claims for injuries previously awarded lifetime medical care.

h) An otherwise compensable injury covers all medical conditions incidental thereto as well as all medical conditions arising there from.

i) An otherwise noncompensable injury or illness made worse by a compensable injury is compensable for its aggravation and all subsequent medical treatment.

GUIDELINES

1. A claim for lifetime medical treatment and other incidental workers' compensation benefits must be filed with the Virginia Workers' Compensation Commission before the 2 year anniversary of the injury or all benefits with respect to the injury will be lost. As a general rule, there are no excuses for filing late.

Points: Voluntary payments of wage indemnity and medical expenses is not the acceptance of a claim.
An express positive statement of acceptance of a claim by an employer, insurance carrier or claims adjuster is not the acceptance of a claim.

2. An award issued by the Virginia Workers' Compensation Commission is the only guarantee of continued uninterrupted wage indemnity benefits or medical treatment.

3. Most employers and workers' compensation carriers have established "panels of authorized treating physicians".
    (a) An employer must provide the panel of physicians within a reasonable time after a work related accident. Reasonable time varies; 3 weeks to 2 months after notice is not reasonable.
    (b) Once selection of treating physician is made, by any method, employees cannot legally change there from unless an authorized referral by original treating physician; an emergency; or given permission by employer or Virginia Workers' Compensation Commission.
    (c) Once selection of authorized treating physician is made by employee, employer may not force a change in treating physician or thereafter offer a panel.
    (d) Where employer denies a workers compensation claim, employee is free to select own treating physician.
    (e) Emergency medical treatment is covered, regardless of panel or choice of treating physician. It must be an emergency.
    (f) An authorized treating physician makes the decisions regarding referrals to other specialties; diagnostic studies or second opinions. An employer or carrier has the right to seek an additional medical opinion limited to only 1 per medical specialty without prior authorization by the Virginia Workers' Compensation Commission.
    (g) An employee is entitled to a private examination and meeting with a physician. No one has a right to be present during such examinations or consultations.

4. Any authorized treating physician attending an injured employee must furnish, without charge, a copy of any medical report to the employer or carrier. A refusal to do so may relieve the employer or carrier from responsibility of the charges and require a change in treating physicians.

5. The liability of an employer or carrier for actual expenses is limited to charges as they prevail in the same community for similar treatment.

6.. Any health care provider rendering treatment to an injured or ill employee pursuing a claim for workers compensation benefits shall not initiate any debt collection activities until an award is made. Debt collection activities includes threats to use a debt collection agency or attorney.

7. No health care provider rendering treatment to an injured or ill employee covered under the Virginia Workers' Compensation Commission may balance bill.

8. An Attorney representing an employee in a completed workers' compensation claim my apply for a fee and a pro-rata assessment of costs if the representation successfully results in a recovery of fees for medical service awarded to an employee.

RULES FOR FINANCIAL SECURITY:

1. Is it likely to be an accepted workers compensation claim?

2. Has the patient reported the injury/disease to his/her employer?

3. Has a claim been filed?

4. Are you an authorized treating physician?

When in doubt, call employer. If employer refuses to cooperate, call Virginia Workers' Compensation Commission.

Michael Kernbach is a Virginia Attorney specializing in Workers Compensation. He represents many organizations and has represented police officers throughout the Commonwealth of Virginia. Mike can be reached at:

Michael A. Kernbach
703-393-0888
703-273-0888
703-339-5246
888-650-0444
9253 Mosby Street
Suite 100
Manassas, Virginia 20110