Author: Angela Neiman

Trying to preserve your legal rights and comply with the requirements of workers ‘compensation cases, all while recovering from an injury can be overwhelming. When you’re injured, you should be able to focus on healing without worrying about whether your medical treatment will be covered or having your bills paid for when out of work.

Unfortunately, many people are left struggling to understand their legal rights and protections. Reinhardt | Harper | Davis has spent years fielding calls from injured workers and understands the questions you may have right now. Below, we address the most frequently asked questions about workers’ compensation claims.

What is the 30-day notice rule?

When you’re injured at work, it is essential that you notify your employer of the injury as soon as possible. In Virginia, there is a 30-day notice rule. This means that you must inform your employer of the accident within 30 days of its occurrence. But the sooner, the better.

It’s best to do the following:

• Provide details on the nature of the injury and which body parts were affected.
• Put this notice in writing to secure a paper trail that will help support your claim later.
• Opt for a physical examination by a medical professional, as some injuries may be worse than you realize. Injuries may not be symptomatic right away, and pain can increase over time. Many people try to “tough it out,” assuming the pain will fade. However, postponing treatment will delay recovery and could cause more damage.

Failing to report the injury within 30 days could result in your workers’ compensation claim being denied or barred by the Virginia Workers’ Compensation Commission.

Can I still receive workers’ compensation benefits if the accident is my fault?

One of the best aspects of workers’ compensation is that you don’t have to prove that someone else was at fault to receive benefits. If you made an unintentional mistake that caused or contributed to your work accident, you can still receive benefits.

However, the system is not designed to cover injuries that result from intentional or reckless behavior at work, such as horseplay or ignoring safety protocols. In such cases, your benefits could be denied.

Can I see my own doctor?

Generally, an employee will be required to select a doctor from a list provided by the employer for initial treatment. When you notify your employer of your injury, they are required to provide you with a list or “panel” of approved doctors, and you will be allowed to select one of those.

In a true medical emergency, you will not be expected to wait for a list of doctors from your employer. You will be permitted to seek emergency care.

After a period of time, if the employer and its insurance carrier have denied your claim or refused to provide you with a panel of approved physicians, you may have the option to seek treatment with your own personal physician or another doctor of your choosing. This will depend on the specific circumstances of your case, so if you would prefer to see your own doctor, you should consult with your workers’ compensation attorney. If you don’t have one, consult with your employer before seeing an unapproved doctor.

Will I be able to go back to my old job?

This can depend on a number of things. First and foremost, you should always comply with your doctor’s advice. If your doctor has given you work restrictions that preclude you from performing your pre-injury job, you should not try to go back to that position unless and until your doctor tells you that it is safe to do so.

You should keep your employer informed of any work restrictions and send your employer copies of any work notes from your doctors so that:

1) Your employer does not terminate you due to a no-call / no-show situation

2) Your employer can offer you a light duty position within your restrictions, if available.

If you are taken out of work entirely for an extended period of time, or your restrictions keep you from being able to return to your position, your employer is not required to hold your position for you indefinitely. The employer may need to fill the position.

Can I file a workers’ compensation claim for someone else?

In most circumstances, no. Only the injured worker, their attorney, or a court appointed guardian can file a claim on behalf of an injured worker. Nothing, however, prevents a family member or representative of an injured worker from assisting with filing a claim. It’s best to consult with an attorney to understand the specific rules surrounding this situation.

Do I need an attorney for my workers’ compensation claim?

While you are not required to retain an attorney to represent you, the attorneys at Reinhardt | Harper | Davis believe it is crucial for you to consult with an attorney as soon as possible after an accident. Why?

This is likely your first case, and the insurance company has an attorney prepared to represent them and has trained adjusters who have dealt with thousands of cases. Also, even though the insurance company may seem to be doing everything correctly, this is often a trap for the inexperienced employee. There are literally dozens of loopholes, defenses, time limitations and other tactics insurance companies use to cause you to lose benefits.  Without an experienced attorney to assist you, the employer and carrier have the upper hand.

You may also be entitled to certain benefits that the insurance company never tells you about. Our attorneys get calls every week from injured workers who lost their benefits, and this could have been prevented if we had been contacted earlier. Don’t wait until it’s too late.

An experienced workers’ compensation attorney can guide you through the legal process, help you understand your rights and obligations, and ensure that you receive every benefit available to you.

If your accident leads to long-term disability or permanent impairment, it is in your best interest to seek legal assistance. Reinhardt | Harper | Davis offers free consultations for anyone unsure about whether or not they need legal help. We are here to support you during this difficult time.

What if I have a pre-existing condition, and my injury made it worse?

This is a very complicated, fact-specific issue. If performing your day-to-day work duties worsens your pre-existing condition, you are not likely to be entitled to benefits. Alternatively, if you had a work accident that exacerbated or accelerated your pre-existing condition, you may be entitled to benefits. This will depend on the specific pre-existing condition, and if you are entitled to any benefits at all, your benefits will be limited to the duration of the exacerbation.

This means that if your work accident temporarily worsened your pre-existing condition, then your workers’ compensation benefits will be limited in time. And once the temporary worsening has resolved and you have returned to your pre-accident level of functioning, you will no longer be entitled to workers’ compensation benefits.

If you suffered a prior work-related injury, and that initial work injury caused a new injury or condition, then you may be entitled to additional benefits.

In these instances, the employer and insurance carrier are less likely to agree to pay you benefits and cover your treatment, and these are not easy arguments to make. If you find yourself in one of these situations, you should consult an attorney.

Are part-time employees, freelancers, and contractors covered under workers’ compensation laws in Virginia?

Part-time workers are still considered employees of a business and are eligible for workers’ compensation benefits.

However, the law is not so straightforward when it comes to freelancers and contractors. These types of workers are not automatically covered, but they are not strictly barred either. Many people call us and say that their employer told them that they are not entitled to workers’ compensation benefits because they received a 1099 for their work. That is not the case. You do not have to receive a W2 to be considered an employee and receive benefits under the Virginia Workers’ Compensation Act.

Whether these other types of workers will be covered depends on the nature and structure of the working relationship. There are many factors considered in determining eligibility, such as:

• The level of the employer’s control over the work being performed
• Whose tools and equipment were used to perform the work
• How the worker was paid
• Whether there was a set work schedule
• The nature of the work being performed
• The nature of the employer’s business

A seasoned workers’ compensation attorney can help you determine whether you may be entitled to benefits and guide you through all the nuances within the law.

Can I be fired for filing a workers’ compensation claim?

Retaliation for filing a workers’ compensation claim is illegal in the state of Virginia. It is essential to note that proving wrongful termination can be challenging, and maintaining a record of your correspondence with your employer and coworkers is crucial if you believe you were terminated unfairly.

What if my employer doesn’t have light duty work for me?

If your doctor has placed you under light duty work restrictions because of your work accident, and your employer cannot offer you light duty work, your rights and duties depend on whether or not an Award Order providing you with ongoing wage loss benefits has been entered by the Commission.

If you do not have an Award Order in place for ongoing wage loss benefits, you may have a duty to “market” in order to be entitled to wage loss benefits while you are under light duty restrictions. This means that you have a duty to look for work within your light duty restrictions. If you find yourself in this situation, you should consult an attorney who can help you understand what is required of you and walk you through the nuances of marketing.

Workers’ compensation claims can be complex, but knowing your rights and understanding the process can help you ensure that you receive the maximum benefits possible. If you’ve been injured in a work accident, call the experienced workers’ compensation attorneys at Reinhardt | Harper | Davis. For a free case evaluation, call 804-359-5500. We will focus on your case so you can focus on what is more important: healing.