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Workers' Compensation Lawyer based in Richmond, VA

 



 
Worker with sprained ankle on floor in warehouse - Workers' Compensation in Richmond, VA
 

Over 35 Years of Practicing Virginia Workers' Compensation Law

  • Frequent lecturer before bar and client groups on workers’ compensation issues
  • Member of the Virginia Trial Lawyers Association (VTLA) Committee on workers’ compensation law
  • Argued cases at the Virginia Workers’ Compensation Commission with over 1,000 successful hearings
  • Handle most Virginia workers’ compensation cases on a contingency fee basis with no out-of-pocket retainer fee upfront
  • Call or email my firm for a FREE case evaluation

 
 
Five Successful Appeals of Deputy Commissioner Hearing Decisions Without a Loss before the Full Commission of the Virginia Workers' Compensation Commission:
1. I won a Permanent Total Disability (PTD) claim of lifetime compensation for a woman who suffered a head injury and whose 500 weeks of Temporary Total Disability (TTD) had expired. Jones v. Bon Air Correctional Center, April 14, 2014.
2. I won an appeal of a denial of bilateral knee surgeries. The insurer had contended she needed surgery due to arthritis and not the work accident. The Full Commission agreed with me that the need for surgeries was work-related and reversed the Deputy Commissioner's decision. Cooper v. Virginia Center Hospital, April 22, 2014.
3. I won an appeal of a Deputy Commissioner decision awarding compensation for a head and back injury suffered in a steam explosion at an industrial plant. The Full Commission disagreed with the insurer's contention that the claimant had only reported an arm abrasion. Tyler v. MOR PPM, June 2, 2014.
4. I won an appeal of a termination of workers' compensation benefits by the insurer. The insurance company contended that the claimant had been released to work, but I successfully argued that she still had work restrictions which prevented her from performing her pre-injury job. Glenn v. Phillip Morris USA, April 23, 2014.
5. I won an appeal of a denial of foot surgery. I proved that my client's left foot injury caused her right foot injury. Heath v. Davita Inc., April 3, 2014.
The Virginia State Bar Rules of Professional Conduct requires all attorneys to make the following statement and disclaimer to their case results: Settlements and verdicts in all cases depend on various factors and circumstances which are unique to each case. Therefore, past results in cases are not a guarantee or prediction of similar results in future cases which Mr. Lutkenhaus may undertake.
 
 
I GOT HURT AT WORK IN VIRGINIA, WHAT SHOULD I DO?
  1. Immediately notify your employer of the injury and fill out an accident report. Insurance companies often deny claims if accidents are not reported right away.
  2. Request a panel of three (3) doctors. Virginia law requires the employer to furnish you a panel of three (3) doctors for you to choose from. But if you don't ask the adjuster for this within 30 days, you can lose this right. You should call an attorney before you make a choice because some doctors are more “claimant-friendly” than others.
  3. Talk to an attorney before giving a recorded statement. The reason why the insurer is taking a recorded statement is because they are looking for any possible reason to deny your claim. The adjuster will try to trap you, so talk to an experienced workers’ compensation attorney first or it may be too late. Anything you say on the recorded statement can and will be used against you if the insurer decides to contest your case.
 
MISTAKES TO AVOID IN A VIRGINIA WORKERS’ COMPENSATION CLAIM
I have been practicing Virginia Workers’ Compensation law for over 35 years, and these are the mistakes I see claimants repeat again and again, often resulting in a denial of their claim.

  1. Failing to report an injury right away. Many claimants think the injury is minor, they will get better, or they don’t want to be fired. However, many employers have a policy that requires the employee to report an injury to a superior within 24 hours. If a claimant violates this policy, the employer will usually deny the claim. Also, the Virginia Workers’ Compensation Law requires reporting an accident to the employer within 30 days of the accident.
  2. Delaying going to a doctor. This can be a big mistake because most employers only acknowledge an injury if the claimant goes to a doctor. Moreover, the longer one waits to go to a doctor, the more difficult it can be for the doctor to link the impairment to the accident.
  3. Giving a recorded statement about the accident to the adjuster without legal advice. If there is a problem with the claim, the adjuster will use the recorded statement to pin down the claimant’s version of the story without the claimant knowing he or she even has a problem.
  4. Switching doctors. The law requires the employer or its insurer to provide a panel of three doctors to the claimant. Once the claimant chooses one, this is the authorized treating doctor for the claim. It is then very difficult to switch doctors. Also, if a claimant moves out of Virginia, it may be hard to find a doctor who will accept patients with out-of-state Workers’ Compensation insurance.
  5. Settling without knowing the real value of the claim. Every claim has the potential for lifetime medical coverage and 500 weeks of compensation in Virginia. The claimant needs to speak to a knowledgeable Virginia Workers’ Compensation attorney before settling any claim.
  6. Going to a hearing without an attorney. The insurance company will always be represented by an attorney. Technicalities may cause them to lose their claim. Many think if they lose, they can always appeal and then obtain an attorney, but this violates the old saying, “he who represents himself has a fool for an attorney.” Mistakes made at the hearing can rarely be corrected on appeal because no new evidence is allowed on appeal.
  7. Thinking the insurance claims adjuster, vocational rehabilitation specialist, or nurse case manager is working for the claimant. These people are hired by the insurance company, and any confidences a claimant volunteers can be used against them.
  8. Even if the insurance adjuster accepts the claim, the claimant has to be careful. The adjuster may send the claimant an Agreement to Pay Benefits Form. The claimant has to check to make sure the Average Weekly Wage is calculated correctly, and ALL the injuries suffered in the accident are recorded on the agreement form. For example, often an arm or shoulder injury masks an underlying neck injury. If the neck injury is not added to the claim within two years of the accident, then it can be lost even if the doctor is treating the neck injury.
  9. The insurer may continue to investigate a claim even after the claim has been accepted. Especially if the claimant is on compensation for “chronic pain,” the insurer will often hire a private investigator to secretly videotape the claimant violating the doctor’s restrictions, hoping to show the claimant doing activities demonstrating s/he is not disabled.
  10. Once released to light duty work, the insurer will attempt to place the claimant in a light duty job. The insurer will first try to place the claimant back with the original employer. If the original employer cannot provide a light duty job within the doctor’s restrictions, the insurer will hire a vocational rehabilitation specialist to place the claimant in alternative light duty work. Many claimants do not realize they have to be available from 9am to 5pm five days per week to do job searches with the vocational specialist. Missed appointments or any failure to cooperate may result in a suspension of compensation.

In Summary, many of the mistakes listed above can be avoided if the claimant immediately consults a Virginia Workers’ Compensation attorney. If an attorney has been Martindale-Hubbell , you can feel confident you have a representative who has been rated best in his field.
 
TIPS IF YOU ARE FIRED AFTER A WORK INJURY IN VIRGINIA
It happens. You have an accident on the job which results in an injury. It gets worse when your employer fires you. What can you do?

  1. You have a right to sue your employer under Virginia Code §65.2-308 if you are fired as a “retaliation” for filing a work injury or occupational disease claim. You can recover actual damages and attorney’s fees. However, I do not handle these types of lawsuits, so you may want to contact an Employment Attorney who specializes in Wrongful Discharge.
  2. If you were fired due to a positive drug test, you may still be eligible for work comp benefits if the drugs or alcohol did not cause the accident. The employer may have a right to fire you for a violation of its anti-drug policy, but if you contact an experienced workers’ compensation attorney, he may be able to show by a pathologist/toxicologist your drug or alcohol level was not the cause of the accident.
  3. If you return to work Light Duty at the same employer, they may look for an excuse to fire you. In order to cutoff your compensation, the employer would have to show you were fired for “misconduct.” So be aware and be extra careful!
  4. If you return to work Light Duty at the same employer and get fired for “misconduct,” you may lose your work comp benefits. Misconduct includes a violation of drug policy, absenteeism, insubordination, fighting, etc.
  5. If you return to work Light Duty at the same employer and get fired, you may file to go back on compensation provided that 1) the termination was not due to misconduct and 2) you are within two years of the date you last received compensation. For instance, if you get let go simply because the employer cannot accommodate your restrictions, you must market your residual work capacity by keeping a regular job search log until you have an Award Order for Compensation issued by the Virginia Workers’ Compensation Commission.

In Summary,
it is bad enough to get injured on the job. It can add insult to injury if you are fired as a result of your accident. If this happens to you, first consult an experience workers’ compensation attorney and then perhaps a wrongful termination attorney.
 
WHAT IF I CAN DO LIGHT DUTY WORK?
  1. If your treating doctor releases you for light duty work, you may still be eligible for compensation if your employer does not provide light duty work. You may have to look for light duty work on your own. You should consult an attorney about this.
  2. If the light duty work pays less, then you may be eligible for compensation for two-thirds of the difference between the 2 salaries. You may need to talk to a lawyer about this.
 
WHAT IF I REFUSED A LIGHT DUTY JOB OR IF I WAS FIRED FROM A LIGHT DUTY JOB?
  1. Refusal of a light duty job can result in a suspension of benefits. A worker only has six (6) months to cure a refusal of a proper light duty job. The best thing to do is to start working another light duty job immediately. An exception would be if the light duty job offer violates the authorized doctor’s work restrictions.
  2. If the worker is fired for “misconduct” from a light duty job, then this can mean a permanent loss of compensation. It is essential for a worker to consult an attorney about this type of situation.
 
WHAT IF I HAVE A DISPUTE WITH THE INSURER AND THE CLAIM IS SET FOR A HEARING AT THE COMMISSION?
  1. The insurance company will be represented by an attorney, so you will be at a great disadvantage if you try to represent yourself. The hearing will be before a Deputy Commissioner who will have to follow Rules of Evidence, which can be technical.
  2. The hearing is your only chance to present evidence. The injured worker can usually appeal an adverse hearing decision to the Full Commission within 30 days, but the hearing is your only chance to present evidence to win your case.
  3. You should never take the risk of going to the hearing without an experienced Workers' Compensation attorney. You cannot present new evidence in the appeal proceeding, so you must make sure you gather all your evidence before the hearing.
 
DO I NEED A VIRGINIA WORKERS’ COMPENSATION LAWYER?
In my 35 years of experience as a Virginia workers’ compensation lawyer, these are the reasons a claimant should seek legal advice:

  1. Accident: A good lawyer can tell you if what happened to you constitutes a compensable accident under Virginia law. For example, repetitive lifting is NOT a compensable accident.
  2. Disease: If you have an occupational disease, the lawyer can tell you how to prove it is compensable under Virginia law. For example, Carpal Tunnel Syndrome MAY be compensable under Virginia law, but you have to overcome a number of evidentiary hurdles.
  3. Doctor: The insurer wants you to go to see its doctor. The lawyer can request a panel of THREE doctors in your area and advise you which one is the most claimant-friendly.
  4. Recorded Statement: The adjuster will want to take your recorded statement of the accident. A lawyer can prepare you on the do’s and don’ts of answering the adjuster’s questions.
  5. Denial: It is essential that you obtain a lawyer as soon as possible. Waiting is a big mistake. The lawyer may have to do discovery to find out why the claim was denied and what evidence is necessary for a winning case, which takes time.
  6. Hearing: There is a dispute and now the VWC Commission has scheduled your case for a hearing. There are timelines for discovery as indicated in #5. Waiting until a few days before the hearing to hire an attorney is not a good idea.
  7. Contingency Fee: Instead of charging an out-of-pocket retainer fee upfront, the lawyer may be willing to take your case on a contingency fee basis, meaning a certain percentage of any benefits recovered.
  8. Personal Injury: If your Workers’ Comp case also involves a personal injury case, a lawyer is necessary to sort this out and obtain the maximum benefit for you under both claims.
  9. Appeal: You failed to get an attorney and you lost your case. Immediately have an attorney review the decision. You may be able to retrieve something in the appeal. There is usually a 30 day deadline to appeal.
  10. Settlement: I just want to settle my case and I don’t want to pay an attorney. Why should I get one? The biggest problems are:
    • A settlement usually means loss of all future rights.
    • You don’t know the value of your claim.
    • You don’t know if there are serious issues with your claim.
    • You don’t know if the insurance company can defeat your claim.
    • You may want a million dollars for your injury, but is this achievable?
    • You may be able to negotiate a reasonable fee with a lawyer.
 
WHY SHOULD I CHOOSE THE LAW OFFICE OF GERALD G. LUTKENHAUS?
  1. Gerald G. Lutkenhaus has over 35 years of experience representing injured workers.He continues to have success litigating Virginia Workers’ Compensation claims at the VWC Commission and receiving favorable decisions from the Full Commission.
  2. Gerald G. Lutkenhaus was recognized as THE BEST Virginia Workers’ Compensation Attorney in the Richmond Region in a survey of 2,000 attorneys by Richmond Magazine in the July 1999 issue.
  3. He has received the highest lawyer ratings from Martindale-Hubbell, Avvo and The Bar Register of Preeminent Attorneys since 2003. He received the “AV Preeminent” rating from Martindale-Hubbell and a 10 out of 10 Superb rating from Avvo.
 
HEARING MISTAKES MADE BY CLAIMANTS WITHOUT LAWYERS
I have practiced Workers’ Compensation law for over 35 years in Virginia.Often, claimants call me after they have been denied Workers’ Compensation by a Deputy Commissioner. They want me to assist them on an appeal, but I cannot because they have made fatal mistakes at the hearing.

  1. Assuming a mistake at the hearing can be corrected by retaining an attorney and appealing the denial. This is wrong because “new evidence” cannot be added on an appeal of the denial. This is a rule of the Virginia Workers’ Compensation Commission. All that an appeal, which is called a “Review of the Decision” in Virginia, does is it asks three Commissioners who handle appeals to review what the Deputy Commissioner did. The three Commissioners only review the record; they cannot admit new evidence.
  2. Assuming medical records have been submitted that will prove causation between the accident and the condition. For example, the treating Doctor says John Doe injured his right shoulder on January 1, 2012 and this may have been due to lifting a 50-pound widget in Richmond. This does not prove causation because the term “may” is considered too speculative. The Virginia Court of Appeals has rejected this “may” language in the past.
  3. Assuming because you cannot do your pre-injury job, you will be awarded compensation for being out of work. This is wrong. A medical report that says you cannot do your prior occupation as an electrician, carpenter, construction worker, etc., only proves partial disability in Virginia. In order to get compensation before the Virginia Commission, the injured worker has to also show s/he diligently looked for light duty work within his/her remaining work capacity. This has been established by prior case law in our state.
  4. Assuming the employer’s witnesses will support your claim. The only reason the employer’s witnesses will be called would be to present evidence in support of denying your claim. If they have not been deposed, then often the unrepresented claimant will have no clue as to what the witnesses will say. The Virginia rules of the Commission allow the claimant to take depositions of opposing witnesses.
  5. Assuming the Deputy Commissioner will assure that all evidence is presented in the case. The insurance company will be represented by an attorney who will defend them at the hearing. The Deputy Commissioner will be sitting as a neutral arbiter of the case. The Deputy Commission is not allowed to take sides. Thus, the Deputy Commissioner may ask some questions at the hearing but s/he is limited regarding developing your case. Ultimately, the claimant has the burden of proof to develop his/her case. Virginia case law limits the role of the Deputy Commissioner.
  6. Assuming the case is simple. It can be very complicated. One has to prove: an accident, causation between the accident and the medical condition, and that the medical condition caused disability. If the medical condition only caused partial disability, then the claimant has to prove a Job Search within the rules of the Virginia Workers’ Compensation Commission.

In summary, these are some of the mistakes unrepresented claimants make at Virginia Workers’ Compensation hearings.
There are many more. The solution is to talk to an experienced Virginia Workers’ Compensation attorney before the hearing. As Abraham Lincoln once said, “He who represents himself has a fool for an attorney.”

 
WHAT IF I GOT A HEARING DENIAL FROM A VWC DEPUTY COMMISSIONER?
For over 35 years, I have been representing claimants before the Virginia Workers’ Compensation Commission. Often, I have been asked to review adverse decisions by the Commission for a possible appeal. More likely than not, I have to decline representation.

  1. The Claim for Benefits: When there is an injury at work, the claimant is required to file a Claim for Benefits with the Commission. The Commission will issue a 20-Day Order to the insurance company requesting a response. If the claim is denied, it will be scheduled for a hearing before a deputy commissioner.
  2. Evidence: The Commission issues an instruction requesting the claimant to file all of his/her evidence that supports the claim with the Commission. This usually means ALL medical evidence has to be filed with the Commission prior to the hearing.
  3. Discovery: Prior to the hearing, each side is allowed, under the Commission Rules, to discover everything that party wants to know about the other side’s case. This is usually done by written questions called interrogatories and by depositions. A deposition is testimony under oath in front of a court reporter prior to the actual hearing about the case. The deposition allows either side to know exactly what a witness will be testifying to before trial.
  4. Medical Evidence: Most of the time doctors do not go to the hearing. The Commission allows medical evidence to be filed by written reports. If there still is a question about the medical evidence, either party can take a doctor’s deposition and file that deposition as the doctor’s evidence in the case. The main reason doctors do not go to the hearing is the expense.
  5. Hearing: At the hearing, no argument is allowed. The hearing is just for the purpose of submitting evidence. As indicated above, the medical evidence is submitted by written reports. The claimant and his witnesses testify under oath and the insurance company will have its witnesses testify under oath.
  6. The Decision: The hearing commissioner will issue his/her decision in writing sometime after the hearing based on the medical records and the testimony at the hearing
  7. .Appeal: If either side disagrees with the decision, there is a right of appeal to have the hearing commissioner’s decision reviewed by three (3) commissioners. But on the appeal, no NEW evidence is allowed. The appeal only considers the evidence that was submitted to the hearing commissioner.
  8. Standard for Review of Appeals: On appeal, there are some standards the Commission has adopted over the years. One critical standard is that the three (3) commissioners will almost never second-guess the hearing commissioner on credibility decisions. This is so because the hearing commissioner is the only one who actually hears live testimony and is able to consider the demeanor of the witnesses. Another critical standard is that the claimant has the burden of proof. This means the claimant has to prove at least by a preponderance of the evidence (at least 51%) that he/she should win. If the evidence is not there or incomplete, the claimant loses.
  9. My Review: Thus, if the claimant comes to me with an adverse decision based on credibility, I have to tell the claimant I decline representation due to the above Standard of Review. Also, if the claimant loses because the evidence is incomplete, I also have to decline representation because evidence cannot be added to the case on appeal.
  10. Representation: The biggest mistake claimants make is to do the hearing themselves without experienced representation hoping to correct any errors by an appeal. As Abraham Lincoln once said, “he who represents himself has a fool for an attorney.” There is just no substitute for not obtaining representation when your claim has been denied and a hearing is necessary. This is my advice: after an insurance company denies the claim, you should call an experienced Workers’ Compensation Lawyer right away.
 
 
CAN AN ILLEGAL ALIEN GET WORK COMP BENEFITS IN VIRGINIA?
The state of Virginia has decided to provide partial benefits to illegal aliens when they get injured.

The illegal alien has a problem when he is injured: his employment contract is illegal.

A few years ago the Virginia Supreme Court said an illegal alien could not receive any workers compensation benefits when he was injured. This court ruling created a different problem:

if illegal aliens could not recover workers compensation benefits, then they could sue their employers for their injuries.
The business interests in Virginia decided they would rather provide partial workers compensation then be open to lawsuits from aliens. The state of Virginia decided in light of this problem to provide partial workers compensation benefits to illegal aliens.

An illegal alien in injured on the job in Virginia can obtain medical benefits but only obtain compensation if TOTALLY disabled. The illegal alien cannot receive any compensation once released to any form of light duty work. The rationale is that the illegal alien cannot work legally in Virginia, so no light duty work can be offered to the alien. By providing partial compensation remedies to aliens, employers in Virginia are protected from job injury lawsuits by illegal aliens.

In Summary, yes, the alien can receive some benefits in Virginia but does not receive the full range of compensation benefits available to a citizen.
 
SOCIAL SECURITY TIPS FOR WORKERS’ COMPENSATION ATTORNEYS
1. The Date Last Insured (DLI) Problem
Why is the Date Last Insured (DLI) an important Date?

Answer: In order to receive Social Security Disability, the claimant has to prove his/her disability occurred before the expiration of the Date Last Insured (DLI). Therefore, if the DLI is too far in the past, it is difficult to prove disability occurred in the past since Social Security will normally rely more on contemporaneous medical records near the DLI than medical reports that attempt to retroactively state disability occurred in the past.
Example: John Doe comes in with a DLI of 2009. John Doe had no medical treatment from 2007 to 2009. So, even though John Doe might be totally disabled now, it is going to be nearly impossible to prove disability in 2009.
Practice Pointer: I have learned through the School of Hard Knocks that Social Security will not allow retroactive proof of disability in most instances. So, file that Social Security Disability case before the DLI expires!
Why not wait to settle the Workers’ Compensation claim before filing for Social Security?

Answer: This is okay as long as you are familiar with the claimant’s DLI for Social Security.
Rule of Thumb: For the worker who has been steadily working, the DLI is five (5) years after the date last worked.
Practice Pointer: If the claimant is a sporadic worker, then the DLI is going to be less than five (5) years from the date last worked. For this type of claimant, have him/her call the local Social Security Office and check the DLI.

2. Social Security’s Definition of Disability
In a workers’ compensation case, often it suffices for the treating physician to say the claimant is “disabled” for work; does this suffice for Social Security?

Answer: No, the rules specifically do not allow the physician to be the final arbiter of the disability decision. Moreover, Social Security has a specific definition of disability. “Disability” under Social Security is based on your inability to work.
You are considered disabled under Social Security rules if:
1) You cannot do work that you did before;
2) You cannot adjust to other work because of your medical condition(s); and
3) Your disability has lasted or is expected to last at least one (1) year or result in death.
Exhibit 2A: “What We Mean By Disability”
Rule of Thumb: The claimant may say, “my doctor says I am disabled,” but the practitioner will know that is not going to be enough to satisfy Social Security.

3. The Five-Step Disability Evaluation Process
How does the Administrative Law Judge (ALJ) evaluate a claimant for disability?

Answer: The Judge uses a five step process:
1) Is the claimant engaged in Substantial Gainful Activity (SGA)?
2) Does the claimant have any severe impairments?
3) Does the claimant meet or equal a listing?
4) Can the claimant perform his/her Past Relevant Work (PRW)?
5) Can the claimant perform other lighter work in the national economy?
Exhibit 3A: “How We Decide If You Are Disabled”

4. Equaling or Meeting an Impairment Listing
How does a claimant equal or meet an Impairment Listing?

Answer: You can send the Impairment Listing for the claimant’s particular impairment to the treating doctor and inquire from the doctor if the impairment equals or meets an impairment listing. However, remember that the final decision rests with the ALJ.
Exhibit 4A: Full Impairment Listing
Rule of Thumb: It is rare but not impossible to meet or equal an Impairment Listing because most cases are decided at Step Four—can the claimant perform Past Relevant Work (PRW), and Step Five—can the claimant perform other lighter work.

5. The Grid is Your Friend; Use It
How do I win using the Grid?

Answer: The Grid is a very useful tool. Social Security, unlike Workers’ Compensation, factors in one’s age, skills, and education in deciding whether one is disabled.
Exhibit 5A: Maximum RFC Possible for Disability Finding
Rule of Thumb: One always wants to show the claimant’s Past Relevant Work (PRW), or work done in the last 15 years, was at least medium or heavy. If you can show this, then you can try to prove disability using the Sedentary or Light Duty Work Grid Rules.
What are the ideal characteristics for the Grid?
Answer: A quick look at the Grid Rules for Light Duty Work will show that Rule 202.01 will dictate a finding of disability for a worker with these characteristics assuming the worker cannot perform PRW:
1) Over age 55
2) Uneducated (less than high school);
3) Unskilled; and
4) PRW was medium/heavy work, but impairment limits claimant to light duty work.
Rule of Thumb: The Grid does not help if the claimant is 49 or younger.

6. The Department of Disability Services (DDS) Disability Determination Explanation
Prior to a hearing before the Administrative Law Judge (ALJ), how can I find out why the claimant was denied?

Answer: Fortunately, in Section A of the Social Security folder, Disability Determination Services (DDS) summarizes what has been done so far in the case. In the Disability Determination Explanation, you will find:
1) Date Last Insured (DLI);
2) Alleged impairments;
3) Medical History DDS has reviewed;
4) Vocational Limitations DDS has found;
5) Prior determinations by DDS;
6) DDS’s suggestions for other light duty work the claimant can perform; and
7) Names and signatures of DDS’s non-examining physicians.
Rule of Thumb: As early as you can in the process, obtain access to the Social Security folder so you can review the DDS determination as found in Section A.
Practice Pointer: Once Social Security schedules a hearing, attorneys enrolled for SSA’s electronic folder may access the claimant’s file at www.ssa.gov/ar. Social Security sends an encrypted CD with the same information to unrepresented claimants and attorneys not enrolled in Social Security’s electronic folder.

7. The Vocational Expert
Why does Social Security have a Vocational Expert (VE) at the hearing?
Answer: If the claimant is at Step Five in the disability evaluation process, then Social Security has the burden of proof to show the claimant can do “other work” in the national economy. Social Security very often meets this burden by having a Vocational Expert (VE) at the hearing. The ALJ will ask the VE hypotheticals based on the claimant’s age, skills, and RFCs to determine whether or not the claimant can do “other work” in the national economy. One hypothetical will probably be based on the DDS determination.
Rule of Thumb: The jobs suggested by the VE may be the same jobs already suggested by DDS in its Disability Determination Explanation.
Practice Pointer: Always have your own set of hypotheticals ready based on your client’s testimony and your favorable medical evidence.
What are some possible hypothetical questions the ALJ might ask the VE?
Answer: 1) Assume a person with the claimant’s age, education, and work history and further assume the DDS restrictions, can the claimant perform PRW or any other work?
2) Assume instead of the DDS restrictions, I accept the claimant’s testimony as credible; can the claimant perform PRW or any other work?
3) Assume instead of the DDS restrictions, I accept the work restrictions as stated by the treating physician; can the claimant perform PRW or any other employment?

8. The Residual Functional Capacity (RFC) Determination by the Administrative Law Judge (ALJ)
Does the treating physician determine the claimant’s Residual Functional Capacity (RFC)?
Answer: No, this is determined by the ALJ based on his/her review of all of the evidence.
How will I know the ALJ’s RFC determination?
Answer: If you have reviewed the DDS determination in Tip #6 of this presentation and your favorable medical evidence, you will have some idea of the ALJ’s RFC determination. This is important because at least one of the ALJ’s hypothetical questions to the VE will be based on the ALJ’s RFC.
Rule of Thumb: Make sure you get in your favorable medical reports at least two (2) weeks before the hearing so the ALJ will consider these in forming his/her hypotheticals.

9. The Residual Functional Capacity (RFC) Evaluation by the Treating Physician
How do I influence the ALJ’s RFC determination?
Answer:
Obtain RFC evaluations from the treating physicians. If the treating physician’s RFC reports are consistent with the claimant’s treatment records and other medical evidence, then the reports can be granted controlling weight by the ALJ in his/her RFC determination.
For More Information: Social Security Rulings (SSRs) 96-5p & 96-2p.

10. Social Security Rulings (SSRs)
In Social Security practice, are Social Security Rulings (SSRs) more important than case-law?
Answer: Yes. In fact, these are some of the ones a practitioner should know:
1) SSR 82-41: Transferability of Skills
2) SSR 82-62: Past Relevant Work over Last 15 Years
3) SSR 83-10: Light and Medium Work
4) SSR 83-20: Onset Date Determination
5) SSR 96-2p: Giving Controlling Weight to Treating Source Medical Opinions
6) SSR 95-5p: Medical Source Opinions on Issues Reserved to the Commissioner
7) SSR 96-7p: Evaluation of Subjective Symptoms
8) SSR 96-8p: Assessing RFC in Initial Claims
9) SSR 96-9p: Sedentary Work and the Sit/Stand Option
10) SSR 00-4p: VE Testimony must comply with Dictionary of Occupational Titles (DOT)
11) SSR 06-03p: Medical Evidence from Non-Doctors (nurses, chiropractors, etc.)
Exhibit 10A: Full Social Security Rulings
For More Information:Social Security Disability Practice by Thomas E. Bush

11. Average Current Earnings (ACE) versus the Average Weekly Wage (AWW)
Does Social Security use the workers’ compensation Average Weekly Wage (AWW) of the claimant in its computation of benefits and any Workers’ Compensation offset?

Answer: No, Social Security uses Average Current Earnings (ACE) to compute benefits and any offset. The simple explanation of the ACE is that Social Security will use the best year the claimant had in the last five (5) years before becoming disabled to determine the offset.
Exhibit 11A:POMS §DI 52150.010 – Average Current Earnings (ACE)

12. The Trial Work Period (TWP)
Does the workers’ compensation claimant lose his/her Social Security Disability benefits when the workers’ compensation vocational consultant finds him/her a light duty job?
Answer: Not right away. Social Security wishes to encourage people to return to work, so it has a Trial Work Period (TWP). Basically, it will disregard the first six (6) months of income upon a return to work before the claimant will be disqualified. This is so even if the TWP salary exceeds the Substantial Gainful Activity (SGA) as explained in Tip #13 of this presentation during this initial six-month period.
Rule of Thumb: Continued work after the sixth month will result in an “overpayment” of Social Security benefits.

13. Substantial Gainful Activity (SGA) & Disability
What amount of income indicates you are not disabled?
Answer: Social Security has a gross income trigger that indicates you are not disabled. For 2017, that trigger is $1,170.00 per month for non-blind individuals. Therefore, after a claimant is found disabled by SSA, the claimant can work part-time as long as s/he is under the gross income trigger.
Exhibit 13A: SGA Chart
Rule of Thumb: Some claimants violate SGA because they fail to realize the minimum is based on GROSS earnings and not net earnings, while others violate SGA by having five (5) part-time pay periods in one month. Also, Social Security can review a case to decide if there is “medical improvement” regardless of the claimant’s salary. Generally, a review occurs three (3) years after a finding of disability unless the ALJ specifies a shorter review period in the decision.

14. No Workers’ Compensation Offset for Social Security Retirement Benefits
Would Workers’ Compensation benefits be reduced if the claimant is on Social Security Retirement?
Answer: No.
Practice Pointer: If you have a 62-year-old claimant, sometimes he/she may want to claim Early Retirement benefits at age 62 rather than Social Security Disability, that way his/her benefits are not reduced. Later, if the claimant is not on Workers’ Compensation, the claimant can file for Social Security Disability and convert the Early Retirement to Social Security Disability provided the claimant has not reached Full Retirement Age and can show his/her DLI has not expired.
Rule of Thumb: At the claimant’s full retirement age, Social Security Disability “converts” to Social Security Retirement.

15. Lump Sum Proration to Avoid Workers’ Compensation Offset
Where do I find the rule Social Security uses to determine this?
Answer: SSA’s Program Operations Manual System (POMS). POMS DI 52150.065 (B)(2)(b) says, “If the award involves an LS, use all three proration methods described in DI 52150.060 to compute offset and select the most advantageous method [to the claimant].” POMS DI 52150.060 (D)(3)(a) says, the first priority for establishing weekly rates is, “the rate specified in the LS award.”
Exhibit 15A: POMS DI 52150.065 – Complex Lump Sum (LS) Awards and Settlements
Exhibit 15B: POMS DI 52150.060 – Prorating a Workers’ Compensation / Public Disability Benefit Lump Sum Settlement
Rule of Thumb: Make sure the prorated compensation rate is in the final order and not just in the petition.

 
WHAT IS A VIRGINIA WORKERS' COMPENSATION ACCIDENT?
  1. A workers' compensation accident is an injury at work caused by a “specific incident.” A common defense to a workers' compensation claim is that the worker cannot identify the accident. For example, a worker lifts 100 boxes and has a back injury, but does not know which box caused his injury.
  2. An injury that occurs while the worker is violating a safety rule may not be compensable. The insurer will take a recorded statement to find out if any safety rules were violated.
  3. An injury that arises out of drunkenness or drugs may not be compensable. This is why employers will require alcohol and drug tests after an injury.
  4. Injuries when the worker has a preexisting condition may not be compensable.This is another reason why the claims adjuster I will take a recorded statement.
 
WHAT IS A VIRGINIA WORKERS’ COMPENSATION INJURY?
These are the top 10 workers’ compensation injuries, which are usually compensable under the Virginia Workers’ Compensation Act:

  1. Over-exertion: The #1 cause of workers’ compensation injuries occurring after the worker lifts, pulls, carries, throws, or pushes a heavy object. (Nurses often get hurt assisting obese patients.)
  2. Slipping or Tripping: Slip on a wet floor or trip over something.
  3. Falls from a Height: Fall from a ladder, scaffold, roof, etc. (A simple “misstep” on a flight of stairs in not a compensable accident in Virginia. There must be some other cause like there was something wrong with the stairs, etc.)
  4. Reaction: Jumping out of the way of a falling object or pulling back when startled, often resulting in trauma or muscle injuries.
  5. Falling Object: Something in the workplace falls and strikes the body, often resulting in head injuries.
  6. Walking into Something: Often resulting in head, knee, neck and foot injuries.
  7. Auto Accidents: Workers who wreck while driving a company vehicle or in the course of employment, sometimes resulting in death.
  8. Machine-caused: Workers using and working around moving equipment and machinery can get their clothing, shoes, fingers, or hair caught or compressed by the device, sometimes resulting in crush injuries or amputation. (Stockers, warehouse workers, and factory workers often get hurt in fork lift, pallet jack, and assembly line accidents.)
  9. Repetitive Trauma: Virginia ONLY recognizes Carpal Tunnel Syndrome and hearing loss. (Repetitive lifting and overuse injuries which occur over time are not compensable accidents in Virginia. The claimant must be able to pinpoint a specific accident on a particular day and time, and the injury must be acute. For example, the worker lifted the 3rd box and immediately felt pain.)
  10. Fights or Assaults: Often occurs when employees get angry at management or each other, breaking up a fight between patients, or armed robbery at the job site.
 
WHAT IS A VIRGINIA WORKERS’ COMPENSATION OCCUPATIONAL DISEASE?
1. A disease arising out of and in the course of employment. It cannot be an ordinary disease of life to which the general public is exposed to outside of the employment.
2. Factors that make a disease an occupational disease:
a) a direct causal connection to the employment
b) it is a natural consequence of the employment
c) it is proximately caused by the employment
d) it was not caused by exposure outside the employment and is not a condition of the neck or back
e) it is not independent of the employer-employee relationship
f) it has its origin in a risk of the employment
3. An “ordinary disease of life” to which the general public is exposed to outside of the employment can be treated as an occupational disease if:
a) All of the “factors” listed above for an occupational disease are established by “clear and convincing evidence” and not a mere probability, AND
b) The ordinary disease of life does not result from causes outside of the employment, AND
c) ONE of the following exists:
– It follows from an occupational disease, OR
– It is an infectious or contagious disease contracted in the course of one's employment in a hospital, sanitarium, laboratory or nursing home,
or while directly delivering medical care, or in the course of one's employment as an emergency rescue personnel, OR
– It was characteristic of the employment and was caused by risks peculiar to the employment.
4. What about Hearing Loss and Carpal Tunnel Syndrome? Hearing Loss and Carpal Tunnel Syndrome are NOT occupational diseases in Virginia, but can be compensable “ordinary diseases of life” if the above criteria are met.
 
WHAT ARE VIRGINIA WORKERS’ COMPENSATION BENEFITS?
In Virginia, these are the possible workers’ compensation benefits you could be entitled to:

  1. Compensation at two-thirds of your average gross wages for up to 500 weeks. Insurance companies often make mistakes on this such as failing to include overtime, etc.
  2. Lifetime Medical Benefits. Insurance companies will refuse to pay if the treatment is not medically necessary and is not with an authorized doctor.
  3. Compensation for the permanent loss of use of an extremity. Insurance companies will often try to send you to providers who give low ratings.
  4. Annual Cost of Living Adjustment (COLA). COLA is cumulative and must be requested with documentation that the claimant is not receiving Social Security Disability benefits. For claimants with injuries before July 1, 2016, the COLA rate is 0.55% effective October 1, 2016. More Annual COLA rates.
  5. Roundtrip Mileage Reimbursement to/from authorized medical appointments and vocational meetings. You must request a Mileage Reimbursement Form from the Insurer. Mileage is reimbursed at the rate of 55.5 cents per mile effective October 1, 2011. Prior to this date, the reimbursement rate was 50.5 cents per mile.
  6. Vocational Rehabilitation. Whereas most workers hope this means retraining, most insurers use it as simple job placement at dead-end jobs.

There is no compensation for “pain and suffering” in workers’ compensation.
 
WHAT IS A VIRGINIA WORKERS’ COMPENSATION CLAIM FOR BENEFITS?
1. The WORKER is required to file a claim for the injury with the Virginia Workers' Compensation (VWC) Commission. This may not be necessary if the work comp insurance adjuster sends the injured worker a correct Award Agreement, the injured worker signs and returns it to the adjuster, the adjuster signs and files it with the VWC Commission, and the Commission enters an Award Order. However, if an Award is not entered, it is still the worker’s responsibility to file the claim within the 2-year statute of limitations.

Fill out Parts A and B on the form. List ALL body parts that were injured in the work accident and ask for all the relief you are requesting including Lifetime Medical Benefits and Compensation under Part B. Attached all medical records, outstanding medical bills, and mileage reimbursement requests to your Claim.

You can file a Claim with the VWC Commission online, by mail, or in-person:
Virginia Workers' Compensation Commission
1000 DMV Drive, Richmond, VA 23230
804-367-8615 or 1-877-664-2566

2. In the case of a WORK INJURY, the claim must be filed with the Virginia Workers' Compensation Commission within two (2) years of the date of the accident. Even if the claim has been accepted by the insurer, the worker should still check to make sure the forms have been filed with the Commission and the worker must be careful all injuries are listed.

3. In the case of an OCCUPATIONAL DISEASE, the claim must be filed within two (2) years of the date of diagnosis. This is an area that can be confusing and an experienced Workers' Compensation attorney needs to be consulted.

4. After the Claim is filed, the VWC Commission will issue a 20-Day Order directing the insurer to respond to your claim within 20 days. If the claim is accepted, the adjuster should send you an Award Agreement for you to review, sign, and return to the adjuster. If the insurer does not respond or the claim is denied, the VWC Commission will refer the Claim to Alternative Dispute Resolution (ADR) or the Hearing Docket to be scheduled in front of a Deputy Commissioner. If you are not sure whether to sign an Award Agreement or your claim has been denied, contact an experienced workers’ compensation lawyer immediately.

 
WHAT IS AN ATTENDING PHYSICIAN’S REPORT?
An Attending Physician’s Report (APR) is a VWC Commission form which can help clarify whether your work accident caused your injury, and whether you should be completely out of work or on light duty work restrictions as a result.

The APR is especially helpful when the insurer has denied your claim alleging that your medical diagnosis is not “causally related” to your work accident, or the insurer denied compensation alleging that you do not have disability from work due to your occupational injury. You should answer #1-10 of the APR yourself and get your doctor to complete the rest. Then file the APR with supporting medical records with the VWC Commission.
 
WHAT IS AN AWARD AGREEMENT / AWARD ORDER?
A Virginia Workers’ Compensation AWARD AGREEMENT is a form that the adjuster sends you when accepting your claim. Check to make sure everything is correct including your name, the employer, ALL injuries, date of injury, pre-injury average weekly wage, compensation, etc. Then sign and return the form to the adjuster and ask to be copied on his/her filing with the VWC Commission.

A Virginia Workers’ Compensation AWARD ORDER is when the Award Agreement to pay benefits signed by the claimant and the adjuster is approved by the VWC Commission. The Award Order cannot be vacated after 30 days of the Commission’s approval. The insurer cannot terminate your benefits unless it or its counsel files an Award Termination form signed by you or an Employer’s Application for Hearing.

The Award Order protects the claimant’s rights for the following reasons:
  1. 2/3 compensation for lost wages due to the work injury;
  2. 20% penalty for late payment of compensation;
  3. Possible entitlement for Cost of Living Adjustments (COLA);
  4. Ability to file a claim to reopen compensation within 2 years of the date last paid;
  5. Lifetime medical care for causally related injuries;
  6. Leverage for future settlement.

If you do not have an Award Order, then everything the insurer is doing for you is VOLUNTARY. If the adjuster will not send you an Award Agreement, then file a Claim for Benefits with the VWC Commission within 2 years of the date of accident. After you file a Claim, the Commission will issue a 20-Day Order directing the adjuster to either accept your Claim and send you an Award Agreement or deny your claim. If denied, the Commission will refer your Claim to the hearing docket and a deputy commissioner will decide whether to are entitled to an Award Order.
 
WHAT IS THE ROLE OF THE NURSE CASE MANAGER?
The insurer will often assign a Nurse Case Manager (NCM) as a “middle-man” between the medical providers and the adjuster. The NCM’s role is to facilitate medical care and ensure the claimant returns to work quickly. Failure to cooperate with the NCM may result in suspension of your compensation.

The NCM may help with scheduling medical appointments and getting medical visits, treatment, prescriptions, tests, procedures, and referrals authorized by the adjuster. However, the NCM is hired by the insurer, so s/he may not have your best interests in mind. The NCM may attend your doctor appointments. It is very important that you are present during any discussions the NCM has with your doctors to avoid the NCM going behind your back to coerce the doctor to do what the NCM wants like releasing you to work sooner than you are ready. You have the right to private examination by your doctor. You can ask your doctor to only talk to the NCM while you are present after the exam. Also be careful about signing authorizations for the NCM.

 
WHAT IS THE ROLE OF THE VOCATIONAL REHABILITATION COUNSELOR?
The insurer will often assign a Vocational Rehabilitation Counselor (Voc) to a claim to try to return the claimant to light duty work quickly, especially if the claimant is under an open Award for compensation. Failure to cooperate with vocational placement may result in suspension of your compensation. The Voc will do an initial assessment to evaluate your education level, work history, skills, and barriers to employment. The Voc will usually meet with the claimant about once a week at a local library to work on your resume and job search. The Voc will help you look for jobs within your work restrictions, usually set out in a Functional Capacity Evaluation (FCE). If the Voc wants you to apply for a job outside of your restrictions, you must still apply for it because the employer may be able to accommodate you. You must attend all meetings on time, submit all required job applications, attend all required job fairs, etc.

If you receive an interview, you cannot say or do anything that the insurer could construe as “sabotage.” You must put your best foot forward. You should not bring up your work injury or restrictions. However, if the interviewer asks you a question related to your ability to do the essential job functions, you must be truthful.

If the Voc gets you a light duty job offer within your work restrictions, the general rule is you must accept the job. If the job pays less than your preinjury wages, then you should request a Temporary Partial Disability (TPD) Award Agreement from the adjuster. If you think it is not a proper job offer like it is commission-only, over an hour commute, you have to provide your own vehicle for work duties, or it violates your work restrictions, then you should contact a highly rated workers’ compensation attorney ASAP.

 
WHAT IS A FUNCTIONAL CAPACITY EVALUATION (FCE)?
Your doctor has determined you are at Maximum Medical Improvement (MMI), meaning all medical treatment has been exhausted and you are not going to get any better. Once you are at MMI, your doctor may refer you for a Functional Capacity Evaluation (FCE).

An FCE is usually about a 4-hour test at a physical therapy facility by a certified disability examiner to determine your PERMANENT WORK RESTRICTIONS. Your ability to sit, stand, walk, crawl, climb, bend, kneel, squat, crouch, lift, carry, push, pull, reach and other functional limitations will be tested.

It is very important to give FULL EFFORT on every task the examiner asks you to do. The examiner will know if you are “self-limiting” or not giving maximum effort during the test and will note this on the report. This can be very detrimental to your workers’ compensation claim. After the FCE, an appointment should be scheduled with your doctor to go over the results. The FCE is not considered a medical report until an MD signs off on the report. Your doctor may add additional restrictions in writing such as limited work hours, etc.

After the FCE report is endorsed by your doctor, the insurer may decide to assign a vocational rehabilitation counselor for job placement within the FCE work restrictions.

 
WHAT IS AN INDEPENDENT MEDICAL EXAM (IME)?
An Independent Medical Exam (IME) is when the insurer sends you to one of their doctors, usually to dispute your doctor’s opinion. An IME is really a “defense medical exam.” The insurer’s strategy is to get their doctor to go against your doctor and say that you are not as disabled as you claim to be, your current disability is not due to the work injury, the medical care is not related/reasonable/necessary, etc. This is an attempt by the insurer to get out of paying for compensation and/or expensive medical care.

Generally, the VWC Commission allows the insurer to do an IME once a year per medical specialty. The IME should be within a reasonable distance of you of about 1 hour. If you do get a negative IME report, you should make an appointment with your doctor and see if he is willing to write a rebuttal report. The Commission generally gives a good rebuttal report by your doctor more weight than the IME report, because your doctor actually treats you on a regular basis whereas the IME doctor only reviews the medical records and examines you one time. When the situation is complicated and your doctor does not know exactly what needs to be clarified, you should consult an established workers’ compensation lawyer. Your attorney may need a phone or in-person conference with your doctor and/or your attorney may draw up a questionnaire for your doctor to complete.

 
WHAT ARE INTERROGATORIES?
Interrogatories are a set of legal questions about your workers’ compensation claim sent prior to a hearing. The insurance company lawyer will mail you questions asking how the accident happened, contact information of any witnesses, what injuries you sustained, whether you have had injuries to the same body parts before or after this work accident, what your disability is, who your medical providers are for this accident and before this accident, efforts to market your residual work capacity, etc. The lawyer may also ask you to produce documents such as medical records in your possession, wage documentation, job search log, etc. Usually, your answers are required to be notarized. The VWC Commission rule is that you answer these questions within 21 days, but you can ask defense counsel for an extension if needed. If the Commission issues an Order directing you to answer interrogatories, you must do so within the specified time limit.

Your attorney may send Interrogatories and Request for Production of documents to the insurance company lawyer too. This is to find out the insurer’s defenses to your Claim for Benefits. Based on the answers, your attorney may want to depose someone at your employer, etc.

 
WHAT IS A DEPOSITION?
A Deposition is testimony under oath in front of a court reporter prior to the actual hearing. You claim you were injured on the job and you wish compensation and medical coverage. The insurance company lawyer wants to take your Deposition in hopes to trap you in a mistake that will cost you your case. These are some mistakes to avoid:

  1. Don’t lie; you must tell the truth. It is a mistake to think you can get away with lying in your deposition. You need to be truthful about what happened to you. Remember, your testimony in a deposition is under oath. Anything you say can and will be used against you at the hearing by the other side.
  2. Don’t guess. If you do not know an answer, then just say you do not know the answer to the question. This is especially true about distances and measurements of any kind.
  3. Don’t fail to prepare. You need to review your medical history. You need to review what you have said on medical reports about your injury, accident reports about your injury, and recorded statements about your injury given to the claims adjuster. If a doctor did not take down a history of your injury, you will have to explain this omission.
  4. Don’t fail to listen to the question. You are only required to answer the question. It is not a time to be making speeches. If you don’t understand the question ask for it to be repeated. Try to give truthful concise answers to every question.
  5. Don’t fail to review Interrogatory Answers. If Interrogatory Answers have been already prepared and filed, you need to review them with your lawyer before the deposition. To the extent you can, you need to be consistent with any prior answers you have given.
  6. Don’t volunteer information. You have been injured and you want to tell your story. You want to tell how this has harmed you and your family. You want to tell about all the problems you are having. Unfortunately, the defense attorney is not going to care about your problems. You may say something that will harm your case, so just answer the question that is being asked.

In summary, if you listen to these pointers you will not make any of the mistakes listed above and hopefully your claim will be approved.

 
WHAT IS AN EMPLOYER’S APPLICATION FOR HEARING?
An Employer’s Application for Hearing (EAH) is when the insurer usually via counsel files a request to terminate the claimant’s Award for compensation with the VWC Commission.

Reasons the insurer may file an EAH:
  1. The claimant returned to preinjury work;
  2. A doctor released the claimant to preinjury work;
  3. A doctor states the claimant’s current disability is not related to the work injury;
  4. The claimant misses an IME appointment;
  5. The claimant refused selective light duty employment within residual capacity;
  6. he claimant failed to cooperate with vocational services;
  7. The claimant refused medical treatment that was reasonable, necessary, and causally related to the work injury.

First, the Commission will review the EAH for technical compliance. If the EAH is compliant, the claimant has 15 days to file evidence in opposition. Compensation is suspended while the Commission’s decision is pending. If the EAH is rejected, the Commission will send a letter to all parties explaining the reason and directing the insurer to reinstate compensation. If the Commission finds probable cause to support the insurer’s allegations, it will accept the EAH and refer it to the hearing docket.

Either party can challenge the Commission’s decision to accept or reject the EAH within 30 days from the date of the initial decision to request the review. The opposing party has 10 days from the date of the Request for Review to file a response. Then the Full Commission will issue a written decision.


 
WHAT IS A VIRGINIA WORKERS’ COMPENSATION SETTLEMENT?

A settlement is a lump sum agreed upon by the insurer and the claimant (or attorneys on their behalf) to cover future medical expenses, future wage loss compensation, and permanent disability. If interested in settling, the adjuster (or via counsel) will either make an initial offer or ask the claimant to submit a demand. Most of the time the insurer will want to settle out both the indemnity and the medical together. The value of a claim should include estimated annual medical, prescription, and mileage costs. The other factor is estimated future compensation--will the claimant most likely be disabled for the rest of the 500 weeks of maximum compensation for lost wages? Putting a value on a workers’ compensation claim is complicated, so the claimant should consult a knowledgeable attorney.

Then the insurer and the claimant (or attorneys on their behalf) will negotiate back and forth until they reach a figure that all parties agree on. Usually, defense counsel will draw up the settlement documents, the claimant and his/her attorney will sign and notarize the documents, and then the documents will be submitted to the VWC Commission for approval. If the claimant is under an open Award for compensation, then weekly payments will continue until the date the VWC Commission approves the Settlement Order.

1. A settlement of a workers' compensation claim usually means a LOSS OF ALL FUTURE RIGHTS. Workers rarely know the true value of their claim and therefore they should never settle a claim without seeing an experienced workers' compensation attorney. Sometimes the employer requires a resignation agreement, meaning the claimant can never work for that employer again.


2. Settlement of a workers' compensation claim can have an adverse effect on other benefit claims such as Social Security. Gerald G. Lutkenhaus is experienced in both Workers' Compensation and Social Security Disability. He can properly advise you about this matter.


3. Even though you have a financial emergency, you should not settle without knowing the real value of your claim. Do you have other means of medical care coverage after a work comp settlement? Contact an attorney for a free initial consultation before taking such a step.

With the above in mind, the value of the claim is determined by:
  • The compensation rate;
  • The number of weeks of potential compensation remaining;
  • The ability to return to any form of work;
  • The ability to return to some form of light duty work and availability of such work;
  • If there is a return to light duty work, the payment rate of such light duty work;
  • Permanent injuries to any extremity or hearing or vision;
  • The projection of future medical bills.

Settlement valuation can be complex and it is advisable that a claimant seek the advice of an experienced workers’ compensation attorney regarding a proper valuation before you reach that final settlement with the insurance company.


*Gerald G. Lutkenhaus was named the #1 Virginia workers’ compensation attorney in the Richmond Region in a survey of 2,000 lawyers by Richmond Magazine, July 1999.