All Virginia workers’ compensation claims begin when an employee suffers an injury by accident, arising out of, and in the course of their employment. An injury under Virginia law requires that the injured worker suffer a sudden mechanical change in their body that results from the work accident, or in some cases an occupational disease. All work accidents are required to be reported to your employer.
You are required to report your accident and injuries to your employer within 30 days after your accident. You should also tell your employer that you need medical attention for your injury. If you do not report your accident within 30 days, you may not be entitled to workers’ compensation benefits. It is determined on a case-by-case basis if failure to report your accident within 30 days is an absolute bar to receiving Virginia workers’ compensation benefits. If you do not report your accident to your employer within 30 days, it is important to speak with a Virginia workers’ compensation lawyer to determine if you could still be entitled to workers’ compensation benefits.
Your employer will conduct an investigation after you report your accident. The investigation will either be thorough or cursory. When a thorough investigation is conducted by your employer, they will ask you to provide an oral or written statement about how the accident occurred. They will also take statements from co-workers who witnessed the accident, or who you told about the accident. The may also take photographs and gather any additional evidence pertaining to your accident. Your employer will then provide the results of their investigation to their workers’ compensation insurance company.
An employer who conducts only a cursory investigation typically notifies the insurance carrier that you were injured and tells the insurance company how you described the accident and injuries. It is then up to the insurer to conduct any further investigation into your accident.
When you report your injury to your employer, they should provide you with a Panel of Physicians. A Panel of Physicians is a list of three doctors the insurance company has approved to provide you treatment for your injuries. You are required to pick one of the doctors from the Panel of Physicians. If you are not provided with a Panel of Physicians, you are free to select the doctor of your choice to treat your injuries.
Once the insurance carrier is notified of your accident and injury, the adjuster assigned to your claim will conduct an investigation into your accident. If you are not represented by an attorney, the insurance adjuster may contact you directly to discuss your accident and injuries.
The adjuster may ask to take a recorded statement. Never provide the adjuster with a recorded statement without first consulting with an experienced Virginia workers’ compensation attorney. During a recorded statement, adjusters are looking for any reason to deny your case, often ask questions that are improper or would hurt your case, and do not ask questions that would be helpful to you. The insurance company will later use your recorded statement against you. The adjuster is not your friend, and they are not there to help you. Their job is to deny as many claims as possible.
Virginia law requires employers to file a First Report of Injury (FROI) with the Commission ten days after having knowledge of any workplace injury or death (30 days for minor injuries). When a FROI is filed does not protect your rights and it does not file a claim on your behalf. It is your obligation to file a Claim for Benefits with the Virginia Workers’ Compensation Commission to protect your rights.
Once the Virginia Workers’ Compensation Commission has been notified of your accident, it will create a Jurisdiction Claim Number (JCN) and begin issuing notifications in your claim.
In some instances, your employer or their insurance carrier will not report your accident to the Workers’ Compensation Commission. If you do not receive documents from the Virginia Workers’ Compensation Commission within 60 days after reporting your accident to your employer, it is likely that the Virginia Workers’ Compensation Commission was not notified of your accident, which is a red flag. If your employer or the insurance company does not report your accident to the Commission, you or your attorney should notify the Commission of your accident by filing a Claim for Benefits.
After your injury is reported to the Virginia Workers’ Compensation Commission, it will issue a Notification of Injury, which notifies all parties (including you) that your accident has been reported to the Commission. After receiving notice of your injury, the Commission will send you information about your rights and responsibilities.
It is your responsibility to file a Claim for Benefits with the Virginia Workers’ Compensation Commission. A Claim for Benefits is your application to receive workers’ compensation benefits. Virginia workers’ compensation benefits include lifetime medical care, payment for lost wages, payment for permanent loss of use to a body part, payment for out-of-pocket medical expenses and travel reimbursement for medical appointments, all resulting from your work accident.
A Claim for Benefits has many requirements that can be confusing if you are not familiar with the Virginia workers’ compensation process. Generally, your Claim for Benefits should include all the body parts you injured in your accident, state your average weekly wage (AWW), and identify the benefits you are seeking in your case. You must file a Claim for Benefits within the two-year statute of limitations for work injuries resulting from accidents. If you suffer from an occupational disease, the statute of limitations may be more than two years and it is important to discuss your disease with a Virginia workers’ compensation attorney who can determine the statute of limitations for your case.
You are required to file medical records that support your injuries with the Commission within 90 days after filing your Claim for Benefits. Failure to file supporting medical reports could result in the dismissal of your claim.
After you file a Claim for Benefits, the Commission will issue a 30 Day Order which requires the workers’ compensation insurance carrier to respond within 30 days stating whether they accept your case, deny your case, or are continuing to investigate your case.
If the defendants do not dispute the benefits sought in your Claim for Benefits, they will send you an Award Agreement form in which they agree to accept your specific injuries and any wage loss claimed by you. If the Award Agreement appears to be correct, you should sign the Award Agreement and return it to the insurance company. The insurance company should then file the Award Agreement with the Commission. After an Award Agreement is filed with the Commission, an Award Order is issued which entitles you to lifetime medical treatment for your injuries and periods of agreed upon wage loss.
After you are placed under an Award Order you can continue your medical treatment with your treating physician as long as necessary, although as time passes, the defendants may dispute whether your ongoing care is the result of your work accident or due to some other cause. If a dispute arises to your entitlement to ongoing medical care or wage loss benefits, you can file a Request for Hearing with the Commission seeking additional benefits available under Virginia law.
If the defendants dispute your accident or injuries, the Virginia Workers’ Compensation Commission will issue a Notice of Hearing and your case will be set for a hearing with a Deputy Commissioner (a trial judge at the Commission). Prior to a hearing before the Deputy Commissioner, your employer and the insurance company will hire an attorney who specializes in Virginia workers’ compensation law to represent them at the hearing.
The attorney representing your employer and their insurance company (the “defense attorney”) will conduct discovery before the hearing. Discovery is the process of gathering information from you, your doctors and other individuals about your accident and medical treatment both before and after your accident. The defense attorney typically issues written discovery requests that you are required to respond to within 21 days of their issuance. Failure to respond to these written requests can result in your claim being dismissed.
In addition to sending you written questions, the defense attorney may also send you a Notice of Deposition. The Notice of Deposition requires you to appear in a specific place (typically the attorney’s office) on a specific date and time to answer questions from the defense attorney under oath before a court reporter. Your answers to questions during the deposition can be used against you at your hearing before the Deputy Commissioner. Failure to appear at your deposition may result in your claim being dismissed.
The defense attorney will also likely issue subpoenas to the medical providers who you have treated with both before and after your work accident. The defense attorney is looking for any evidence to present to the Deputy Commissioner at hearing to support the insurance company’s denial of your claim.
It is imperative that you have your own attorney who specializes in Virginia Workers’ Compensation law to prosecute your claim, protect your interests and fight the defense attorney to prevent your claim from being denied by the Deputy Commissioner at your hearing.
It is also important that you continue to receive medical treatment for your injuries. Continuing your medical care will help your attorney prove the injuries you suffered in your accident, and provide them with evidence to support your claim for lost wages. If you do not have insurance or the means to continue your medical treatment, your attorney should be able to assist you in finding a doctor to treat your injuries ensuring you have evidence to support your claim at hearing.
All disputed cases are set for an evidentiary hearing before a Deputy Commissioner. The Commission will issue a Notice of Hearing that provides the date, time and location of your hearing. In most cases a Pre-Hearing Order will be issued by the Deputy Commissioner that imposes certain deadlines on the parties to file documents and motions prior to the hearing, along with a Pre-Hearing Statement that is due seven days before your hearing.
At your hearing, the Deputy Commissioner will accept medical reports and testimony from witnesses into evidence. After receiving the medical records and testimony, the Deputy Commissioner will close the evidentiary record and issue a written opinion explaining whether you won or lost your case. Written opinions can take anywhere from two weeks to six months to be issued. Once the Opinion is issued, either party has 30 days to file a Request for Review (an appeal) to the Full Commission disputing the Deputy Commissioner’s ruling.
The Full Commission is a three-judge panel that consists of the three Commissioners of the Virginia Workers’ Compensation Commission. After a Request for Review is filed by either party, the Commission will issue a Notice of Receipt of Request for Review to the parties, acknowledging that Review has been requested in the case. Once the Request for Review is received, the Commission will issue a schedule for written statements which provides deadlines for each party to explain why the Deputy Commissioner’s opinion should be overturned or affirmed.
After receiving written statements from the parties, the Full Commission reviews the evidence received by the Deputy Commissioner and issues a written opinion affirming or overruling the Deputy Commissioner’s Opinion. It typically takes two months to receive an Opinion from the Full Commission.
If either party disagrees with the decision of the Full Commission, an Appeal to the Virginia Court of Appeals may be filed within 30 days of the issuance of the Full Commission’s Opinion.
Virginia workers’ compensation law and procedure are complex, and difficult for people unfamiliar with the system to understand. There are many procedural pitfalls and points of law that could result in your claim being dismissed if you do not take appropriate action or provide specific evidence at hearing. The insurance company will have an attorney familiar with these issues representing them, and you should have an attorney who specializes in Virginia workers’ compensation representing you.
Our attorneys represent injured workers on a contingency fee basis, which means you pay us nothing unless we win your case. We offer free consultations to all injured workers. We will be honest with you about your chances of winning your case and address any issues we see that could affect your case. We see each client as a relationship and provide every client with the individualized service and respect they deserve. Contact us today to schedule a free consultation with one of our Virginia Workers’ Compensation lawyers.