Workers Comp and Personal Injury

Brien Roche

There is a world of difference between workers comp and personal injury claims.

In the legal world lawyers that handle one frequently handle the other too.  However workers’ compensation claims are becoming more and more complex.

Workers Comp and Personal Injury

Many workers’ comp claims involve a component of personal injury law. The injured party frequently has been injured by a third person. Therefore the worker may have what is called a third party liability claim against that person or company.

That is seen frequently on construction sites. An injured worker is working for one subcontractor. He is injured by the actions of another sub. In addition to workers comp he may have a third party liability claim. This is against the other subcontractor. Virginia law is very narrow on that issue and may bar this third party claim.

If this type of claim is governed by the workers comp law of another state, then the workers comp bar may not apply.  In Gerben v. Edwards 106 Va Cir 286 (Fairfax 2020) the employee never accepted the provisions of the Virginia Workers Compensation Act.  The employee was covered by the Maryland Act.  In this case, neither the employee nor the employer were Virginia residents, plus there was no issue of statutory employee.  The plaintiff/employee in this case was a Maryland resident and employed by a Maryland corporation and he could not have received benefits under the Virginia Act and therefore the bar was not applicable.

Auto Cases

If the vehicle that the employee is in is registered in Maryland, then the exclusion against suing the fellow employee is unenforceable up to Maryland’s minimum liability coverage limits.  It is however enforceable beyond those limits.  Wilson v. Nationwide, 395 M.D. 524 (2006)

Where an employee is driving a company vehicle and is involved in a crash there may be a third party claim. It is against the other driver. Call, or contact us for a free consult.

Workers Comp of Great Value

In many cases the most valuable claim that an injured person has is the comp claim. The worker is entitled to lifetime medical benefits.  In addition he may be entitled to nearly 10 years of lost wages. If there is a permanent total disability then the benefits are for life.

It rarely makes sense for a person to forego a workers’ comp claim. The only case where that may make sense is if the worker has other medical coverage. Therefore she does not need the  lifetime medical benefits. If there is not any substantial wage loss component that too is a factor.  On the other hand a third party claim against the wrongdoer could be of great value.

Workers’ comp claims must be coordinated with the third party claim. The workers’ comp carrier is entitled to recoup out of any settlement most of what they have paid out for the worker. Call, or contact us for a free consult.

Overview of Workers Comp Claims

What follows is a brief overview of workers comp claims pointing out some of the most important issues for a personal injury lawyer.  Some basic features of workers’ comp claims that distinguish them from other types of claims are:

• In workers’ comp cases there is no doctor-patient privilege.  As such the carrier and its reps are entitled to the medical records. Also they are entitled to have direct access to the doctor.  To exercise some control over that you may write to the doctor stating that no medical release has been provided to the carrier and that the patient’s position is that only copies of reports need be provided. Also you may state that the patient’s position is that the doctor is not required to generate a report for the carrier. Furthermore the doctor is not required to submit to a request of the carrier or its reps.  However counsel must not direct the doctor to refuse to meet or otherwise communicate with the carrier.
• The carrier will attempt to squeeze the employee in regards to a determination of average weekly wage (AWW).  Sometimes AWW is simple as the client is an hourly employee.  However that calculation must be precise as it may govern the future value of the case.

The Award

• Getting an award entered early in the case may be important. However it’s also important to make sure that you understand the full extent of the injuries.  Sometimes that is not fully grasped until several months have passed.  Those body parts and injuries must be clearly stated on the award. Otherwise you may not be able to claim those injuries later in the case.
• If there is any potential of the case becoming a permanent total claim you need to be especially mindful of AWW and the correct wording of the nature of the injury on the award. Also you must monitor closely the vocational rehab efforts by the carrier.
• You also need to be sensitive to the fact that the award could come back to bite you.  If the award says three body parts were injured, you may be limited to that.  If in the personal injury case you are claiming six body parts, there could be a res judicata issue.

Remedial

In looking at any workers comp claim you need to keep in mind that the whole purpose of the law is remedial.  What that means is that it was designed to provide a remedy.  The remedy was that 100 years ago a worker could be injured and not receive any benefits for years while he sued the employer.  That meant that he had no income.  That meant that his family went without food and housing.  The purpose of workers comp was to remedy that.  Workers comp provides prompt payment of part of the employee’s wages and full medical coverage related to that injury.  That full medical coverage is for life.

Virginia Injuries

The Virginia Act applies principally to injuries in Virginia.  It may apply to an injury occurring outside of the state if the contract of employment was made in Virginia and the employer’s place of business is in Virginia.  The exception to that is if the contract was expressly for services outside of Virginia.  Then the Virginia Act may still apply.

All employers with 3 or more employees who are regularly in service must have coverage.  “Regularly in service” does not mean constant.  It does not mean full-time.  It can be dependent upon the particular employer’s situation.

A person who performs work that is occasional or by chance is probably not covered by the Act.  However if the person is injured while performing work in the usual course of business of the employer then the Act may apply.

Workers Comp-Independent Contractors

A person who is an independent contractor may not be covered.  The issue that is looked at is the degree of control that the employer has over this person.  That control is looked at not only from the point of view of controlling the result but more importantly controlling the means and method of getting to the result. Call, or contact us for a free consult.

Workers Comp-Average Weekly Wage

Perhaps the most important issue in most workers comp claims is determining what is the average weekly wage.  In most cases this is based upon all income from the employer received over the 52-week period prior to the injury.  That sum is then divided by 52.  If the person has not worked for 52 weeks for that employer, then it is divided by the number of weeks she has worked.  If there is concurrent employment that is similar then the income from both jobs may be added together.  These wage benefits can be paid for a total of 500 weeks unless the person is permanently and totally disabled.  It that event benefits may continue for lifetime.

If the worker returns to work after the injury and then has a wage loss due to the injury then he may be entitled to temporary partial disability benefits.

Workers Comp-Duty to Market

Any employee who is not totally disabled from employment must market his so-called “residual skills”.  What that means is that the employee must attempt to find work in order to generate income based upon whatever ability he has.  If the employee fails to do that then he may either be denied wage benefits or wage benefits that have been paid could be recouped by the employer.

Statute of Limitations

There are a number of statute of limitations that apply to different claims within the workers comp scheme.  Overall an employee has 2 years from the date of the injury to file the initial claim.  That claim must be filed with the Commission.  In addition once wage benefits have ended, then the employee has 2 years from that date to assert a claim for additional wage benefits.

Permanent Partial or Scheduled Loss Benefits

Permanent partial benefits are sometimes called scheduled loss benefits.  What that means is that different body parts have different values in terms of loss or loss of use.  If you lose the use of your right arm to the tune of 25%, then that 25% has a certain value in terms of weeks of disability.  You can be awarded either a lump sum or periodic benefits based upon that.  Whatever that amount is counts towards the 500 week total of wage benefits that you are entitled to.  Oddly enough these benefits do not apply to back injuries.  The only way the back can be brought into play is that if there is a loss of use of arms or legs or other body parts which may flow from the back.

Death Cases

Benefits may be awarded to the survivors in the event the employee is killed as a result of the injury.  The burden is on the claimant to prove that the death was in fact caused by the employment.  If it is just as likely that a non-compensable cause produced the death as it is that a compensable cause did, then the burden of proof has not been met.

Where there is no evidence as to the cause of the unexplained death at work, it is presumed that the death arose out of the employment. Call, or contact us for a free consult.

Medical Benefits

When the injury occurs, the employer is required to give the employee a panel of 3 doctors.  From that panel the employee can chose 1 as the treating physician.  This doctor will treat the employee free of charge.  A challenge may be made to the panel based upon distance between the employee’s home and the doctor’s office, the doctor’s specialty and the willingness of the doctor to see the employee.  The employee must otherwise select from that panel.  If the employee seeks treatment from some other doctor, the carrier may not pay for it.

In certain instances the carrier’s right to limit the employee to the panel may be waived.  The carrier has to provide the panel within a reasonable period of time after learning of the injury or the need for a particular specialist.  That reasonable period of time is probably about two weeks.  If the client has already seen the specialist and developed a relationship, then the carrier may have forfeited their right to provide a panel.  That relationship probably is going to be evidenced by at least two to three visits.

If the carrier first found out about the need for a specialist shortly after the client saw the specialist, then they probably still have a right to dictate a panel.

Doctor Patient Relationship

To the extent that there is a case manager involved, it’s probably a good idea to send the manager a letter saying that he/she is not allowed in the exam room with the client and that the client will not sign or discuss the case with her unless you have pre-approved it.

In those instances where you’re allowed to stick with the doctor that the client has chosen, you can have the client ask the doctor not to meet independently with the case manager.  You can further ask that the doctor limit any involvement with the case manager to giving him/her a note stating the diagnosis, prognosis and work status.

If during the course of that treatment the doctor commits medical malpractice, then that is considered to be part of the injury.  Benefits are payable because of it.  The employee cannot sue the employer because of that doctor’s malpractice.  However he may be able to sue the doctor.

Workers Comp-Vocational Rehabilitation

The employer has an obligation to provide vocational rehabilitation.  In most cases what that comes down to is hiring a vocation counselor to work with the employee to find employment.  In reality this is a guise to set the employee up.  If the employee fails to cooperate with the counselor, fails to pursue employment opportunities, fails to show up for scheduled meetings, then the employer may be justified in cutting off benefits.  This becomes especially important if there is no award that has been entered.  Without a formal award, the employer may cut off benefits without approval from the commission.

In dealing with the vocational rehab counselors you need to be aware of 18 VAC 115-40-40. This is the standards of practice that govern rehab providers.  Once the provider is assigned to the case, you need to ask for a copy of the rehab plan. Also ask for copies of all weekly reports to the carrier.  This seems to be governed by subsection B7, 15 and 16 of the above referenced regs.

In addition you should be aware of the vocational rehabilitation guidelines published by the VWC.

Workers Comp-Injury by Accident

An important issue in workers comp cases is whether or not the injury was by accident.  Some people think that simply because the person is hurt at work that they have workers’ comp coverage.  That is not so.  Rather the injury must be by accident.  In addition it must arise out of and in the course of the employment.

Injury by accident means that there must be an identifiable incident that occurred at a reasonably definite time.  If over a period of time the employee develops a back pain which progresses into a herniated disc, that may not be a compensable injury.  The employee must be able to show a definite incident that occurred causing the condition.  In addition he must show that it occurred at a reasonably definite time.  More precisely, there must be a sudden mechanical or structural change in the body.  If this is simply a condition that occurred over time, it may not be compensable.

Arise Out Of

In addition the injury must arise out of the employment.  That means there must be a causal connection between the work and the injury.  Walking through the office and tripping is not necessarily something that arises out of the employment.  If there is a hole in the floor that the employee steps in, then that probably is an injury that arises out of the employment.  If the floor surface however is level with no defects and the employee simply falls, that may not be compensable.

In the Course Of

In addition the injury must be in the course of the employment.  What that means is that it must occur at a place where the employee is reasonably expected to be.  Also he must be doing something that is reasonably fulfilling of the duties assigned to him.

There are a host of different scenarios that may arise.  Injuries on the parking lot outside of the building where the employee works are usually held to be compensable.  Going to and from work typically is not covered.  There are exceptions however where the employer provides the transportation.  Also if the employer has created a sole and exclusive way of ingress or egress and where the employee has some continuing duty while on his way to or from work there may be coverage. Call, or contact us for a free consult.

Causation

Causation in a workers comp case is a little bit different than in a personal injury case.  In a workers comp case there may be 2 causes.  Where a disability has 2 causes, one of which is employment-related and the other which is not, then full benefits will be allowed.

Notice and Filing

The employee is required to give notice of the injury immediately or as soon as practical.  The outside limit for this notice is 30 days.  This likewise applies to employers that are called statutory employers.  A statutory employer may be a company that is not the direct employer but is deemed to be the employer for purposes of benefits.  The failure to provide notice within 30 days may preclude an award.  The notice should be in writing.   The fact that the employer already has knowledge of the incident may excuse notice.  However the notice should be given in any case.

After the notice is given, the employer should provide a panel of physicians.  If the employer does not do that then the employee may pick a physician.

The filing of a claim means filing that claim with the Workers’ Compensation Commission.  Merely sending it to the employer is not enough.  The filing of that claim stops the statute of limitations from running.

Change in Condition

Frequently during the course of a workers comp claim the employee’s condition may change.  The employee has 24 months from the date when compensation was last paid to claim a change in condition.  A change in condition may arise in an instance where the employee has returned to work and then for reasons related to the injury cannot work.  The employer may voluntarily agree to reinstate benefits.  If not then there may have to be a claim filed with the Commission.

Awards

An award is an order issued by the Commission.  The entry of an award is important in order to protect the employee.  Typically an award is preceded by a Memorandum of Agreement.  This is a form issued by the Commission that should be filed with the Commission.  It is critical that on that award all body parts that were injured be identified.  If the body parts or injuries are not listed, then later you cannot make a claim for any such injury.  Likewise the award should expressly state that lifetime medical benefits are awarded.  If wage benefits are also being awarded, it should identify what those are and expressly state what the average weekly wage is.

De Facto

Sometimes the employer may claim that because no award has been entered that therefore the employee is not entitled to any benefits.  In that instance the employee may be able to claim that there has been a de facto award based upon the employer’s conduct.  There are particular elements that must be met to prove that.

No Award Makes Termination Easy

The logic of having an award is that benefits may not be terminated by the employer without the Commission’s approval.  If there is no award, then the employer may terminate the benefits at-will.  If there is an award entered and there is a change in condition, a new claim may have to be filed.  A change in condition is a change in physical condition or a change in the condition in which compensation was awarded or terminated.

Sometimes based upon medical info the employer may agree to either resume benefits or terminate benefits.  If a new agreement is entered, then a new award should be entered.

Some examples of when a new agreement should be sought or a claim filed are when the employee suffers a new or additional incapacity after benefits have ended or when additional wage loss occurs because light duty work is no longer available. Call, or contact us for a free consult.

The Contested Case

Contested cases in the workers comp realm are much like any civil case.  There will eventually be a hearing before a hearing officer or Commissioner.  Prior to the hearing there may be pre-trial discovery.  There may also be motions filed.  The proceedings are much like any civil case with the exception that there is no need to bring healthcare providers before the Commission.  The Commission will consider all medical records without hearing from the provider.

Third Party Claims

The reason that personal injury lawyers get involved in workers comp cases is because of third party claims.  A third party claim is where some person other than the employer has caused the injury.  The trick in these cases is determining whether or not that other party can in fact be sued.  On a construction job in Virginia where an employee of a sub is injured as the result of the negligence of some other sub, then that other sub probably cannot be sued.  Likewise the general contractor on the job probably cannot be sued.

The persons who probably can be sued are those persons who are strangers to the business of the employer.  What that means is that you must first decide what is the trade, business or occupation of the employer.  You must  then match that with the third party who is to be sued.  If they are different then that third party probably can be sued.  If they are overlapping then that third party probably cannot be sued.  On your typical construction job, everybody is deemed to have the same trade, business or occupation as the general contractor.

If however a steelmaker is delivering steel I-beams to the job and as a result of the actions of an employee of that steelmaker the plaintiff is injured then the plaintiff probably can sue that steelmaker.

Claims Against an Employer are not Always Barred

If an employee is injured on the job then in most cases the employee’s sole remedy is workers’ comp.  The employee gives up the right to sue the employer.

If the injury is one that is not actually on the job but rather is outside typical work hours but is the fault of the employer then the employee may sue. For example, you are attending a company function that is on a weekend outside of normal work  hours. This is purely voluntary. You suffer some injury as a result of the negligence of the employer or a fellow employee. In that context you have a liability claim against  the employer.  Since the injury did not occur in the course of normal work hours it typically would not be covered under workers’ comp.

Workers Comp-Subrogation

The employer/carrier who is paying benefits to the employer has a right of subrogation.  This means they have a right to recoup the money they have paid out.  They further have a right to a credit for money that may be owed in the future.

This is important in any third party claim.  This subrogation right or lien must be dealt with.  If you do not deal with it appropriately then the employee’s workers’ comp benefits may be terminated. Call, or contact us for a free consult.

What’s Recoverable

It’s not unusual for workers’ comp carriers to try to overreach in terms of what their lien actually is.

They may claim recoupment of all vocational rehabilitation expenses.  Those are probably not recoverable under Virginia Code Section 65.2-310.  There is nothing in that Code section that indicates they can recover that.  In Sheris v. Sheris, 212 Va. 825 (1972), the court said that what the workers’ comp carrier can recover are the amounts that they “actually had to pay for the benefit of the injured employee”.  Vocational rehab expenses where the carrier is simply trying to get the employee back to work is not something that they “had” to pay and therefore should not be recoverable.  Likewise in Washington v. Miller & Rhoades, 68 O.I.C. 250 (1989), the court said that private vocational rehabilitation expenses are not recoverable.

Cost Containment Companies

As to medical expenses, the Sheris case likewise can be relied upon in terms of the scope of subrogation.  What carriers frequently do is they hire a third party broker or intermediary to find healthcare providers that will provide the services at a discounted rate.  The amount paid to that broker is not recoverable.  The amount that is recoverable is the amount that was paid to the actual healthcare provider.  In Lockwood v. Automatic Control of Tidewater, 63 O.I.C. 219 (1984), the Commission held that an independent medical exam cost is not recoverable.  Other similar expenses likewise are not recoverable.  Likewise the Miller & Rhoades case mentioned above can be cited for that same position.

It should also be pointed out that the language that is in 65.2-310 also appears in 65.2-309.1 and 65.2-313.

In terms of getting the information from these third party brokers as to what they paid to the provider, you may have to issue a subpoena to get the amount they received from the workers’ comp carrier and then the amount they actually paid to the provider.  You probably also want to get a copy of the contract between the broker and that provider.  Once you have that information, then file an application with the Commission to ask the Commission to determine the lien.

Workers Comp Settlements

If you are able to settle the Workers Comp case for a lump sum, then there may be an issue as to whether or not that lump sum is recoverable out of the third party claim.  Whether it is or is not is going to depend on the language in the Workers Comp settlement documents and the Workers Comp order.  They need to be reviewed thoroughly.  Most carriers now require that the lump sum amount be recoverable out of the third party claim.

D.C. and Maryland Cases

If your injury is governed by D.C. workers’ comp law, you need to be sensitive to D.C. Code Section 32-1535.  That Code section says that upon acceptance of compensation under an award in a Compensation Order filed with the Mayor, all rights are assigned to the employer.  If the employer does not file suit within 90 days, the employer loses that right.  The right then goes back to the injured party.  These shifting rights cannot be modified by agreement.  There is a Court of Appeals’ decision that says since they’re fixed by statute, they must be complied with.

It may be that more than one state has jurisdiction over a workers comp claim. If that is so, then the claimant can file in both jurisdictions. The claimant can then seek benefits available in one but not in the other.
Call, or contact us for a free consult. See the personal injury pages within this site for more information and also see the pages on Wikipedia.