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Gerald's Tip of the Week

 



 

Your disability benefits have been cut off. Now what can you do?

This is the nightmare. You fought long and hard to win your Disability but now Social Security has reviewed your claim and says you have improved and are no longer disabled. This is what you can do:
  1. File a “Request for Reconsideration” appeal within 10 days to challenge the decision that you are no longer disabled. If you file this appeal within the 10-day deadline, your Disability benefits will continue until the Reconsideration decision.
  2. If you miss the 10-day deadline, still appeal within 60 days to challenge the decision that you are no longer disabled. However, your Disability benefits will not continue while you wait for a Reconsideration decision and will only be reinstated if you win.
  3. Make Social Security prove there has been “medical improvement” in the condition that led you to being declared disabled in the first place. To rightfully suspend your benefits, Social Security must show there has been sufficient improvement in your medical condition since the date of your prior favorable decision that now allows you to work.
  4. Exceptions to #3 are exhausting the Trial Work Period (TWP) or failing to attend a Consultative Exam (CE) with a Social Security doctor. Social Security is not required to prove medical improvement if you have exhausted the TWP or if you missed a CE appointment.
  5. If you get a Reconsideration denial, file a “Request for Hearing” appeal within 10 days to challenge the decision that you are no longer disabled. If you file this appeal within the 10-day deadline, your Disability benefits will continue until the Hearing decision provided that the benefits continued after the original Cessation notice. Even if you miss the 10-day deadline, still appeal within 60 days to challenge the decision. However, your benefits will not continue while you wait for a Hearing decision and will only be reinstated if you win. If you fail to appeal within 60 days or if you lose the Hearing, all the benefits you were paid after the original Cessation notice will be an “overpayment” you owe back to Social Security.
In summary, all is not lost if you receive a Cessation notice. However, you must act quickly.
 
 
TIME LIMITS THAT APPLY TO VIRGINIA WORK COMP CLAIMS
  1. For most accidents, the injured worker has 2 years from the date of accident to file a claim with the Virginia Workers' Compensation Commission. Virginia Code § 65.2-601.
  2. The 2-year statute of limitations for filing a claim for an accident can be excused if the employer knows of the accident but fails to file a report of such accident with the Virginia Workers' Compensation Commission and the claimant can show s/he was prejudiced by the failure to file the report. Virginia Code § 65.2-602.
  3. If the claimant is claiming an occupational disease, the claimant must give written notice of such claim to the employer within 60 days of the date the occupational disease is first communicated to the claimant by a doctor. Virginia Code § 65.2-404.
  4. For an occupational disease, the injured worker has 2 years from the date of diagnosis or 5 years from the date of last injurious exposure in employment, whichever comes first, to file a claim with the Virginia Workers' Compensation Commission. Virginia Code § 65.2-406.
  5. If compensation is payable under a Virginia Workers' Compensation Award, the claimant can request a 20% late penalty if the payment is not made within 2 weeks after it becomes due. Virginia Code § 65.2-524.
  6. If the claimant's Award is terminated, the claimant has 2 years from the date of last payment to file a Change of Condition Claim and ask for more compensation for lost wages.
  7. If the claimant's Award is terminated, the claimant has 3 years from the date of last payment to file for Permanent Partial Disability for a rated loss or loss of use of a body part. Virginia Code § 65.2-708.
  8. If the claimant loses a Virginia Workers' Compensation Commission hearing, the claimant has 30 days to file for a review (appeal) to the Full Commission.
  9. For most compensation payments for lost wages, there is a 500-week maximum for benefits. Virginia Code § 65.2-518.
  10. If the claimant refuses light duty or selective employment that is within his.her residual work capacity, then the claimant has 6 months to cure such refusal, or claims for future lost wages will be barred. Virginia Code § 65.2-510.
 
THE ACCEPTED VIRGINIA WORKERS' COMPENSATION CLAIM
  1. An employee has a specific accident at work that results in injury.
  2. The injured worker immediately notifies the employer of the accident.
  3. The employer or it's work comp insurer refers the injured worker to an authorized healthcare provider for initial treatment (usually Patient First, Urgent Care, Occupational Medicine, etc. or the ER).
  4. An accident report is completed with the employer, and the employer sends it to their work comp insurer.
  5. The work comp insurance claims adjuster opens a claim and calls the injured worker for a recorded statement of how the accident happened.
  6. The adjuster files the First Report of Injury (FROI) with the Virginia Workers' Compensation (VWC) Commission.
  7. The adjuster may provide a panel of 3 doctors for the injured worker to chose 1 as his/her authorized treating physician, and the medical providers send the medical records and bills to the adjuster for payment.
  8. If an authorized medical provider takes the injured worker completely out-of-work over 7 days due to the work injury by a written note, the adjuster will ask the employer for a wage chart and begin compensation for two-thirds of the pre-injury average weekly wage.
  9. The adjuster may send the injured worker an Award Agreement, the injured worker signs and returns it to the adjuster, the adjuster signs and files it with the VWC Commission, and the VWC Commission approves an Award Order for lifetime medical benefits for reasonable, necessary, and authorized treatment of causally related body parts (and compensation if applicable).
  10. If the VWC Commission does not approve an Award Order, then all compensation and medical benefits provided by the insurer are VOLUNTARY; and it is the injured worker's responsibility to file a Claim for Benefits parts A and B with the VWC Commission within 2 years of the date of accident to protect his/her rights.
It is VERY IMPORTANT for the injured worker to obtain an Award Order as soon as possible. Even if your Virginia workers' compensation claim has been “accepted” by the insurer, it is still advisable to contact a knowledgeable attorney to learn your rights. If any step in the process goes wrong, your benefits could be denied.
 
THE DENIED VIRGINIA WORKERS' COMPENSATION CLAIM
Not all claims are accepted. Why would a claim be rejected? Theses are some scenarios:
  1. The employer did not have workers' compensation insurance at the time of the accident;
  2. The accident did not occur at work;
  3. The injured worker was not actually working at the time of the accident;
  4. The accident occurred because the injured worker violated company safety policy;
  5. The accident was due to misconduct by the injured worker;
  6. The injury was not due to a specific accident, but rather due to repetitive trauma;
  7. The accident was due to a simple missed step;
  8. The injured worker failed to report the accident right away;
  9. The injured worker has a preexisting condition;
  10. The injured worker is an illegal alien.
If your Virginia workers' compensation claim is denied, you should contact an experienced lawyer immediately to learn your rights.
 
RISKS OF MOVING OUT-OF-STATE DURING YOUR VIRGINIA WORK COMP CLAIM
Some workers who get injured on the job in Virginia later want to move out-of-state while their workers' compensation claim is still active. This can be a problem for the following reasons:
  1. Any hearings on your Virginia workers' compensation claim will be in Virginia;
  2. Sometimes you can appear at a Virginia hearing before the Commission by video, but this is difficult to arrange;
  3. The insurer may refuse to pay for travel back to Virginia for hearings and medical appointments;
  4. Your medical treatment may have to be transferred to your new state;
  5. Medical providers in other states may refuse Virginia workers' compensation insurance;
  6. Out-of-state medical providers may not be as supportive as your Virginia providers;
  7. The attorney who represented you in Virginia may have a difficult time representing you if you move out-of-state.
Thus, it is best to discuss your situation with your attorney before you actually move out-of-state.
 
WHY CAN'T I SUE FOR PAIN AND SUFFERING FOR A VIRGINIA WORK INJURY?
Many injured workers contact me and want to sue their employer for an injury at work. They want to collect for pain and suffering and other things one can sue for when one is involved in an automobile accident. So, can a claimant sue his/her employer for an injury at work in Virginia?
If your disability claim has been denied, contact an expert Social Security Disability attorney immediately because there is a strict 60-day deadline to appeal.
In most cases, the simple answer is NO an injured worker cannot sue his/her employer for pain and suffering due to a Virginia work injury. The Virginia Workers' Compensation Act, like other work comp laws in the U.S., resulted from a “historic bargain” between labor and business. Businesses agreed to provide workers' compensation insurance for injured employees to cover 2/3 wage loss, medical expenses, recovery for permanent damage, and mileage reimbursement without admitting responsibility for the accident. Labor, on the other hand, gave up the right to sue their employers for negligence and the right to recover for pain and suffering. In some states, an injured employee can still sue his/her employer if the employer is guilty of “gross negligence” in causing the employee's injury. However, that option is NOT available in Virginia.

If the injury is caused by a THIRD PARTY (NOT by the employer or its employees), then a negligence action could be available in addition to a workers' compensation claim. For example, if an employee is driving a company truck and is struck by another driver, then the employee could have a claim against his/her employer's work comp carrier AND a personal injury claim against the other driver's auto insurance.

The workers' compensation system does not provide an adequate remedy when great pain and suffering or death results from the work injury. The fairness of work comp statutes is highly controversial, with claimant attorneys arguing the need for more benefits and the defense attorneys arguing that excessive fraud causes unnecessary and inappropriate costs.
 
BEWARE OF THE WORK COMP NURSE CASE MANAGER
When you suffer a Virginia workers' compensation injury, the insurer will often hire a Nurse Case Manager (NCM) to coordinate your medical care. The NCM may be a direct employee of the insurer or s/he may be employed by an agency used by the insurer. The NCM may attend your work comp medical appointments.

The NCM may be helpful in scheduling and obtaining approval for doctor visits, tests, procedures, and therapy, etc. from the insurer. These appointments usually do not happen until they are pre-authorized by the insurer.

On the other hand, the NCM could be very bad for your case. S/he may try to steer you to doctors who are not claimant-friendly. S/he may try to get the treating doctor to refer you to another physician of her preference. S/he may try to substitute her opinion for the opinion of the treating doctor. S/he may try to tell the doctor which tests and procedures are and are not necessary.

Can you keep the NCM from talking to your doctor? Most doctors will talk to the NCM. The doctor/patient privilege that would normally keep your medical care private does not apply in Virginia workers' compensation. Under the VWC Act, the insurer is entitled to obtain medical records from the treating provider(s). The Act does not specifically say the doctor must talk to the NCM. As a practical matter, doctors usually talk to the NCM to get his/her proposed plan of care approved and paid for by the insurer.

How can I protect myself from the NCM? You should request that your medical providers only talk to the NCM when you are present. You should attend all discussions the NCM may have with your medical providers. You should make sure your attorney receives copies of all NCM correspondence and reports to the insurer about your case. Most of all, you should have an experienced Virginia workers' compensation lawyer representing you.
 
HIGH BLOOD PRESSURE AND YOUR WORK COMP CLAIM
I have had a number of clients with a neck or back work injury. This causes chronic pain, resulting in a spike in their blood pressure. The clients want the work comp insurer to treat the high blood pressure (HBP) but there are problems:
  1. Most orthopedists will NOT say chronic pain causes HBP;
  2. Some will say it is an aggravate of HBP;
  3. Usually, the client already had HBP before the work accident, so it is very difficult to prove the chronic pain from the work injury caused the HBP;
  4. Even if the client's primary care physician (PCP) does state the work-related chronic pain caused the HBP, the work comp insurer will most likely not accept this opinion because the PCP is unauthorized;
  5. However, the work comp insurer's hands could be tied regarding medical treatment if the work comp doctor refuses to operate until the HBP is under control;
  6. Also, the insurer cannot force the client to undergo a Functional Capacity Exam (FCE) if the client has uncontrolled HBP.
The insurer will want the client to bear the burden of bringing his/her HBP under control. Often the client will no longer have health insurance and can ill afford to pay for expensive medical treatment. The Court of Appeals provided some guidance in Haftsavar v. All American Carpet & Rugs, Inc., 59 Va. App. 593, 721 S.E.2d 804 (2012):
[W]e find that the appropriate test is whether the treatment for the unrelated condition would be necessary if surgery for the compensable condition was not contemplated. In other words, the issue is whether the primary motivation for treatment of the unrelated condition is to allow the claimant to undergo the compensable treatment, or whether it is to treat the unrelated condition. If the unrelated condition would require treatment without reference to the compensable treatment, then there is simply no causal connection between the treatment for the unrelated condition and the compensable injury.
Under this test, it would appear the insurer is not responsible for HBP treatment not caused by the accident. However, this “test” does not answer the question regarding whether the insurer can force the client to pay for expensive HBP treatment in order to undergo an operation or FCE for his/her injury.
 
WHY CAN'T I DO THE VIRGINIA WORK COMP HEARING MYSELF?
Some claimants who are injured on the job attempt to do their own workers' compensation hearings. This is usually a mistake. These are some of the reasons why you should consult an experienced workers' compensation attorney first:
  1. The insurance company is going to be represented by a defense attorney.
  2. You may not know WHY the insurer is denying your claim.
  3. You may not know what evidence and/or witnesses the insurer will be using against you.
  4. You may think you case is straightforward, but it may not be.
  5. You may think that if you lose, you can just get an attorney for the appeal.
    (The record closes after the hearing, so you cannot submit new evidence on appeal.
    Also, there is a deadline to appeal and it will take time for an attorney to evaluate your claim.)
  6. You may think you cannot afford an attorney. (If you have a serious case with significant injuries and disabilities, you should be able to retain an attorney on a contingency basis.)
Abraham Lincoln once said, “he who represents himself has a fool for an attorney.” Don't be that “fool.” Contact a highly rated workers' compensation lawyer immediately.
 
VIRGINIA WORK COMP INJURY AND RELEASE TO LIGHT DUTY
You have had an injury at work but now the authorized doctor says you can do light duty work, does this mean the end of your compensation?
  1. If you are under a Virginia Workers' Compensation Temporary Disability (TTD) Award, the compensation payments should continue despite the light duty release as long as the employer cannot provide a light duty job. If you don't know if you are under an open TTD Award, call the VWC Commission at (804) 367-8615 or 1-877-664-2566.
  2. Once you are released to light duty, your employer may offer you a light duty job. If the job offer is within the authorized doctor's restrictions, then you must attempt the job.
  3. If the light duty job does not meet the authorized doctor's restrictions, you don't have to accept it but you should contact a decorated work comp lawyer before you refuse it.
  4. If you are not under an open TTD Award, then the work comp insurer may not pay you unless you have sufficiently marketed your residual work capacity via light duty job search. Usually, a sufficient light duty job search requires 5 in-person job applications per week or at least 10-15 online applications per week. All applications must be for jobs that you could possibly do under the authorized doctor's work restrictions. It is important that you keep a detailed record of your job search, including the date of application, the company's name address and phone number, the person you contacted or website you used, the position, the response, and print out any email confirmations.
  5. Even if you are doing a good job search, the insurer may still refuse to pay you. In that case, you need to file a claim with the Virginia Workers' Compensation Commission and consult an experienced attorney.
My firm provides guidance in negotiating through the often difficult workers' compensation rules. Contact my office immediately (804) 335-0268 if you encounter a problem.
 
VIDEO SURVEILLANCE WARNING TO INJURED WORKERS
Recently, I have had a number of cases in my Virginia workers' compensation practice that involved video surveillance. The defense has the right to hire a private investigator to follow the injured worker around and video record him or her in public places (ie. outside the home, in the doctor's office lobby, running errands, etc.).
This tactic is used in hopes of catching the worker doing activities that are inconsistent with his or her alleged impairment and/or violating doctor restrictions. Surveillance typically occurs when an injured worker is out of work on compensation for lost wages and the disability is due to the claimant reporting pain, rather than an obvious, objective medical impairment. If the investigator is successful, the defense can play the video in front of the treating physician, persuading the doctor to think the worker is exaggerating symptoms and/or has recovered from the injury. The doctor may declare the worker is no longer disabled and drop any work restrictions. A problem for the worker's attorney is that he cannot obtain the video until after it has been provided to a third party, such as the doctor. Also, the VWC Commission has ruled in the past that the worker's attorney cannot obtain the video prior to the worker's deposition. Thus, defense counsel can ask the worker questions at the deposition in hopes that his or her answers will conflict with the video evidence.

Then the defense can file an “Employer's Application for Hearing” with the Commission to cutoff the worker's benefits. If the Commission does not reject the Application, then compensation will stop on the date of Application and will not resume unless the worker gets compensation reinstated by the deputy commissioner at the hearing. Therefore, if you are an injured worker under an Award for compensation, you should be cautious that the defense could be videotaping your activities.
 
SEXUAL ASSAULT AT WORK IN VIRGINIA – WORK COMP OR PERSONAL INJURY CLAIM?
The test for a workers' compensation injury in Virginia has two parts:
  1. It must occur “during the course” of the employment.
  2. It must “arise out of” the employment.
Thus, a sexual assault during work would definitely meet the first prong of the test since it occurred at work. The more difficult problem is whether the assault meets the second prong of the test–did the assault “arise out of” of the work environment?

For instance, if a lady's boyfriend attacks her at work, that normally would not result in a workers' compensation case because it failed the second part of the test–it did not “arise out of” the employment. However, if worker operated the midnight shift at a 7-11 and was the victim of a sexual assault by a stranger, the worker could readily argue such employment exposed the worker to higher risk of sexual assault than the American public is normally exposed. Likewise, an employee who had to make payroll deposits could reasonably argue this employment created a greater risk of being assaulted.

On the other hand, what if the worker is sexually assaulted by a fellow employee in the work place? Sometimes the victim does not want to be covered by the Virginia Workers' Compensation Act. If the injury is horrific, the victim might rather file a personal injury claim for negligent hiring. In a workers' compensation claim, the remedy is limited to compensation for lost wages and medical expenses. In a personal injury claim, the victim can try to recover for pain and suffering, loss of quality of life, etc. If the sexual assault by the fellow employee takes place in the work place but there is no other link to the work place environment, then the victim will not have a workers' compensation claim. If the victim thinks she can recover more in a personal injury case, she may not want workers' compensation coverage. Conversely, the employer might desire workers' compensation coverage since the victim's damages are more limited.
 
NECK INJURY VS. ARM INJURY AT WORK – THEY ARE NOT THE SAME IN VIRGINIA
As a Virginia workers' compensation attorney, I often see on-the-job injuries that are originally diagnosed as an arm injury, but later it turns out to really be a neck problem (or there is a neck injury in addition to the arm injury). Virginia case law clearly states an arm injury does NOT include a neck injury, and a neck injury does NOT include an arm injury. Thus, a late discovery of a neck injury can create a problem, especially if the injured worker fails to add the neck injury to the claim within two (2) years of the accident.

If the original claim only contains an Award for an arm injury, then an additional claim for a neck injury will probably be lost if it is not added within the two (2) year statute. The usual rule followed by the Virginia Workers' Compensation Commission is that an Award for just an “arm injury” does NOT include coverage for a different part of the body, such as a “neck injury” when there is no specific mention of the neck on the Award.

Do you have a complicated arm/neck injury? Consult Gerald Lutkenhaus, an attorney with over 35 years of experience, at (804) 335-0268 to make sure you are covered with both the arm and the neck.
 
WHY AN INJURED WORKER SHOULD SIGN A VIRGINIA WORKERS' COMPENSATION AWARD AGREEMENT
If the Virginia workers' compensation insurance company ACCEPTS your injury, the adjuster is required to send the injured worker an Award Agreement (also called an Agreement to Pay Benefits form). This form will state: the injured body parts covered for lifetime medical care, compensation rate for two-thirds of lost wages, and the date compensation will begin. After the injured worker signs the Award Agreement, s/he should return it to the adjuster for his/her signature. Then the adjuster should file the Award Agreement with the VWC Commission. Once approved by the Commission, an Award Order will be issued. After the Award Order has been entered for 30 days, the insurer cannot vacate the Award Order.

At a recent Virginia workers' compensation seminar, a Commissioner explained that a Lifetime Medical Award for a “back strain” will usually cover ALL injuries to the back such as herniated discs, etc. To be safe, the injured worker may request to amend the Award Order to add additional body parts.

Also, the Commissioner pointed out recent case law confirmed that signing an Award Agreement for one body part does not preclude one from filing later to add additional body parts as long as the new claim is filed within two (2) years of the date of accident.

On the other hand, the Commissioner said litigation may preclude the injured worker from adding additional body parts to the Award Order if those claims are not specifically reserved in the litigation. Thus, the Award Agreement does not have the same preclusive effect as does a litigated case.

The rationale is Award Agreements are favored by the Commission as part of its administrative function. Award Agreements are not used as “traps” by insurers to foreclose claimants from their truly meritorious claims.

Should you sign your Award Agreement? Ask Gerald Lutkenhaus, an attorney with over 35 years of experience, at (804) 335-0268.
 
VOCATIONAL PLACEMENT IN A VIRGINIA WORKERS' COMPENSATION CASE
You are under an open Award approved by the Virginia Workers' Compensation Commission and receiving compensation for lost wages due to an injury on the job. The insurer decides to hire a vocational placement counselor for you. Is this a good thing?
  1. The insurer may press your doctor to release you to light duty too soon after the work accident. To curb a premature release to work, you should establish a good rapport with your doctor. If your doctor does release you to light duty, the insurer may assign a vocational counselor to your case for job placement. You cannot claim you are “too disabled” to work with the vocational counselor if the doctor has released you to light duty work.
  2. The vocational counselor is an agent of the insurer, and not independent. He or she is hired by the insurer and does not work for you. The vocational counselor is supposed to follow the job placement guidelines set by the Virginia Workers' Compensation Commission and the rules for his or her state license. He or she usually does an initial vocational assessment to determine your work experience, residual capacity, and transferable skills.
  3. The vocational counselor may try to get your doctor to reduce the work restrictions so that job placement is easier. Therefore, you should make sure there are no private discussions between the vocational counselor and your doctor.
  4. The vocational counselor will try to place you back with your original employer. Sometimes the employer may create a light duty job. The employer has an incentive to take the injured worker back in order to lower its workers' comp insurance costs.
  5. If the employer cannot accommodate your restrictions, the vocational counselor will attempt to place you in a light duty job elsewhere. If a job offer is within the injured worker's restrictions, then the injured worker must attempt the job. If the injured worker makes less wages at the light duty job than his pre-injury job, then the insurer may only compensate the injured worker at two-thirds of the difference in wages. The insurer benefits from successful light duty placement because it doesn't have to pay as much compensation benefits.
  6. The Virginia Workers' Compensation Act states the insurer is allowed to do vocational placement for a reasonable time (6 months) before having to pay for any retraining or reeducation expenses.However, in my experience, the insurer rarely offers to pay for these expenses.
  7. You can request round trip mileage reimbursement for meetings with the vocational counselor and required job searches. You can ask the adjuster for a mileage reimbursement form. Mileage is reimbursable at $0.555 per mile as of 2015.
  8. Anything you say to the vocational counselor may be repeated to the insurance claim adjuster.Especially beware of talking about settling your case with the vocational counselor.
  9. Failure to cooperate with vocational placement can be a serious offense under Virginia Workers' Compensation law. You cannot form a pattern of being late to or missing appointments, failing to submit required applications, failing to attend required job fairs, sabotaging job interviews, etc. If noncompliance is proven, it can result in suspension of benefits. The injured worker is well-advised to consult an experienced Workers' Compensation lawyer when faced with vocational placement by the insurer.
In the end, the vocational counselor is NOT your “friend.” You should be careful and treat him or her as an agent of the insurer. You should consult a top Virginia workers' compensation attorney if the insurer assigns a vocational counselor to your case for job placement.
 
INCREASED PENALTY FOR VIRGINIA EMPLOYERS FAILING TO CARRY WORK COMP INSURANCE
Virginia law requires companies that regularly employ OVER TWO employees, part-time or full-time, to carry workers' compensation insurance. Employees include family members, minors, apprentices, undocumented workers, temporary workers, seasonal workers, part-time workers, and charity workers.

As of July 1, 2014, the Virginia Workers' Compensation Commission can order an employer in violation pay a penalty to the state for $250 per day up to a maximum of $50,000. (The old penalty, which had not been increased in two decades, was a minimum of $500 per day and a maximum of $5,000.)

EMPLOYEES BENEFIT from the new law because there will be more assurance that their employers will have coverage.
 
REPORT EVEN MINOR WORK INJURIES AND SEEK MEDICAL TREATMENT IMMEDIATELY
Many workers try to shrug of sprains, strains, minor cuts, etc. They fail to report these types of accidents to their employer and fail to go to Patient First or the emergency room for these types of injuries.

There are two (2) big dangers in taking the “shrug-it-off” approach:
  1. In Virginia, if you do not report an accident immediately, the employer may claim it did not happen on the job. The Virginia Workers' Compensation Act requires injured workers to report the accident to the employer within 30 days, but specific employers may have stricter policies. So, the sooner you report the accident, the better.
  2. If you do not get immediate medical treatment for the injury, the doctor may have a hard time linking the injury to the work accident in writing. The Virginia Workers' Compensation Commission often considers the first emergency room visit and the history of the accident on the first treatment note to be critical evidence concerning whether an injury was caused by an on-the-job accident.
Therefore, your safest bet is to report all injuries immediately, complete a written accident report with the employer, and seek immediate medical attention. You never know, what you thought was an insignificant sprain could really be a more serious fracture, taking you out of work and requiring lots of medical care.
 
VIRGINIA WORKERS' COMPENSATION COST OF LIVING ADJUSTMENT
A Virginia Workers' Compensation claimant may have a right to a Cost of Living Adjustment (COLA). The purpose of COLA is to ensure that the value of certain wage loss benefits is not lessened as a result of inflation.

Each year the Virginia Workers' Compensation (VWC) Commission sends out a notice notifying claimants who are currently receiving total disability compensation checks from the insurer that they may be eligible for COLA as of October 1st of that year.
To be eligible for COLA:
  1. The work accident must have occurred before July 1st of that year;
  2. The claimant must have an Award for Temporary Total Disability (TTD) or Permanent Total Disability (PTD);
  3. And the combined Workers' Compensation rate and any Social Security benefit cannot exceed 80% of the pre-injury wage.
The amount of the increase each year depends on the Cost of Living Index for that year. The increase for 2013 was 1.7%, and 2014 will be 1.5%. See the annual VWC COLA rate here:

www.vwc.state.va.us/portal/vwc-website/HelpfulResources/CustomerAssistance/CustomerAssistanceBeneAmt.

COLA is not automatic; you must request it correctly. It requires a form to be completed by Social Security and filed with the VWC Commission.
 
INJURED AT WORK AND THE INSURER REFUSES RETRAINING
Often people are injured at work and cannot go back to their prior job due to a permanent impairment. Sometimes the insurer refuses to provide vocational retraining. The Virginia Workers' Compensation Act does specifically provide for retraining as a part of compensation, but one cannot apply for this unless retraining is recommended by a vocational counselor.
An injured worker can apply for FREE services including a retraining evaluation by a vocational counselor at the Department of Aging and Rehabilitative Services (DARS), (804) 662-7000 or www.vadrs.org/.
 
 
REASONS WHY SOCIAL SECURITY WILL DENY YOUR DISABILITY CLAIM
Based on my 35+ years of practice, these are the top reasons why claimants are denied for Disability at the initial level.
  1. Failure to pay into Social Security – If you have been a housewife or have been self-employed and not paid Social Security taxes, for example, then you may not be eligible for Title II Social Security Disability Insurance (SSDI). If you have worked on and off, have been paid under the table, or it has been over 5 years since you last worked, then you may not have enough work quarters to be eligible for SSDI. Read an example scenario.
  2. Still working – Even if you are only working part-time or you are having difficulty working, the fact that you are still working is a strong indicator that you are not disabled according to Social Security. If your countable income is more than a certain amount called “Substantial Gainful Activity” (SGA), you are not eligible for Disability benefits. SGA for 2016 is $1,130 per month.
  3. Too young – Social Security considers everyone under age 50 to be “younger individuals.” It is not enough for “younger individuals” to prove they cannot perform their past relevant work. “Younger individuals” must prove with written doctor support that they cannot sustain gainful employment at ANY type of job as normally performed in the national economy, even low stress light duty work.
  4. Temporary disability – Your disability must last (or be expected to last) at least 12 straight months. For example, if you had an operation or a stroke and you are unable to work but you recover within a year, you do not have a valid Disability claim.
  5. Unemployment compensation – In order to receive unemployment compensation, you must certify you are “able to work” and show you are looking for work. Most Social Security judges consider unemployment compensation to be inconsistent with a disability claim.
  6. Non-severe impairment – You must have a significant medical problem. Age is not enough, and inability to find work is not enough. If you do not have a “severe” impairment, Social Security will claim you can “adjust to other work” and your claim will fail. Generally, you must have an impairment that requires doctor's care and adversely impacts your daily activities.
 
SOCIAL SECURITY DENIED MY DISABILITY CLAIM BECAUSE I DON'T HAVE ENOUGH WORK QUARTERS TO QUALIFY
Joe called my office this week. He applied for Social Security Disability Insurance (SSDI). He had three herniated discs in his back and expected to be approved for SSDI right away. But Social Security denied him because he did not have sufficient work quarters. In over 35 years of representing disability claimants, I have had many people call me with the same problem as Joe.
What really was Joe's problem? Joe had operated a food truck for years. He did good business selling lunches in downtown Richmond, VA. Joe paid sales taxes but never reported a profit on his food truck. He had done this for over 20 years. Since he never paid income taxes, Joe never paid into the Social Security system. To some extent, you get out of Social Security what you pay in.

What was Joe's mistake? Joe thought he could avoid income taxes by never reporting a profit on his food truck. Joe was correct, but the mistake he made is he also never paid into the Social Security system. As a result, even though Joe is now “disabled,” he is not eligible to receive Social Security Disability Insurance (SSDI).

What about Supplemental Security Income (SSI)? There is another Disability program called Supplemental Security Income (SSI). SSI is like welfare disability for disabled people in low-income households, in which sufficient work quarters are not a requirement. In Joe's case, his wife's income disqualified him from SSI.

The moral of the ant and the grasshopper: In Aesop's Fable, the ant worked all summer building up his food supply. The grasshopper sang and danced all summer long. When winter came, the ant had ample food supply, but the grasshopper went hungry. The lesson is to be like the ant–work hard and pay into the Social Security system while you still can. Don't make Joe's mistake and fail to pay into the system while you are working.
 
VETERAN UNEMPLOYABILITY RATING AND SOCIAL SECURITY DISABILITY
If you happen to be a veteran and have obtained a 100% service-connected unemployability rating from the Veterans Administration, then this rating may help you win your Social Security Disability claim. This is so in the area covered by the Fourth Circuit Court of Appeals, which includes Virginia, West Virginia, Maryland, North Carolina, and South Carolina.

In a recent case, the Fourth Circuit held that Veteran Disability Ratings “must be accorded substantial weight in Social Security Disability proceedings.” Bird v. Commissioner of Social Security Admin, 699 F.3d 337, 345 (4th Cir. 2012). So if you have an SSDI claim and a 100% Veteran Rating in any of the above-mentioned states, then be sure to cite the Bird case.
 
IMPORTANCE OF MEDICAL EVIDENCE IN A DISABILITY CLAIM
If you are filing for Social Security Disability, it is essential that you seek medical treatment for your ailments. Your testimony about your medical problems is important, but not as important as medical evidence showing you have a severe impairment.

If you lack health insurance or resources, then you have to obtain medical care any way you can. You can apply for Virginia Coordinated Care (VCC), an affordable health care program in the Greater Metro Richmond and Tri-Cities areas through VCU Health System. First you must complete an application with the VCUHS Financial Counseling Department (804) 828-0966. For more information about VCC, visit www.vcuhealth.org/vcc.