workers’ rights

I was just injured on the job in Virginia. What should I be doing right now?

by Mike Herdman | April 30th, 2018

If you have just been injured on or in connection with your job, the following can be used as a guide for your next steps. These steps are designed to make sure you avoid common mistakes that can hurt your chances of being properly treated and compensated.

While the internet can be a great resource, this information is being provided as generally applicable advice. Every case is different, and this guide is not a substitute for a competent, experienced lawyer. Please keep in mind that you can reach out to an attorney’s office, such as mine, for a free consultation if you’ve been hurt on the job.

Step One: Report the Injury to Your Supervisor as Soon as You Can

As soon as you reasonably can, contact your supervisor and let them know that you have been hurt. If you were rushed to the hospital right after the injury, you should try to contact your employer and report the injury as soon as you are able.

If the insurance company denies your claim, you may have to prove to a judge, in court, that you were injured on the job. If you cannot prove you were injured, you may receive no compensation in connection with your injury. One of the best places to start is by building a paper trail.

So, tell your supervisor you have been injured. Call them if you cannot speak directly with them. Whether you do or do not speak directly with your supervisor, try to send an email to your supervisor or HR explaining that you were injured, and keep a copy of that email for your own records.

If you can, take pictures of where you were injured, and take down the names of people who witnessed the injury. Try to see if there is a surveillance camera that captured the injury on camera.

Once you have notified your employer that you’ve been injured, they will generally try to fill out an incident report with you and ask that you sign it. It can be ok to sign, as long as you carefully read it over and confirm that the information is correct. Do not give in to pressure to sign something that is inaccurate. If you feel that something is incorrect, you can write corrections directly on the document before signing it.

If your boss tries to persuade you to not file an incident report or claim, this is an immediate red flag that indicates you may not be treated fairly.

Most importantly, tell the truth about what has happened. If the insurance company plans on denying your claim, one of their easiest defenses is to make you look like a liar. Your best defense against this is to always tell the truth, and to be clear about what details you do know, don’t know or don’t remember.

Step Two: Get Medical Treatment

Once you’ve notified your supervisor about the injury, your next step should be to get treatment for your injuries as soon as you can. If you go to your primary care physician 3 months after the injury, you may be forgetting important details about the injury, including when you were injured and how it happened. Delaying your care hurts your recovery, and it hurts your case.

When you are being examined by a doctor for the first time, tell them what happened. Explain to them how you were hurt. Make sure they are aware that you suffered an injury at work, as they should be explaining that in their report. How you were hurt will also give the doctor a better understanding of your current condition, so that they can provide proper medical care.

Next, make sure the doctor (and every following doctor or therapist that you see) is aware of every problem you are experiencing and have experienced since your workplace injury. Doctors are not perfect. The doctors cannot treat issues that they do not know about. If you have fallen from a ladder and broken both of your wrists, the doctor should be able to see the breaks and focus a lot of your treatment on those injuries. However, what if you’re feeling numbness in your fingertips, having nightmares, hearing ringing in your ears or having trouble controlling your bladder? You need to let the doctor know about these issues. Issues that you think may seem too insignificant to talk to the doctor about may in fact be because of something more serious than you realize.

Do not be shy. Sensitive or personal health issues which you may feel embarrassed or ashamed to talk about with the doctor need to be discussed. If you’re uncomfortable bringing it up with your current doctor or nurse, you can ask for somebody else to discuss it with—maybe somebody of the same gender. No matter what has happened to you, medical professionals have likely already seen issues like yours before through training and/or experience. Your injury is not the result of a personal failing, and you will not be judged for it. All of the horrible things that can result from workplace trauma can happen to anybody. Whatever you may experience is a problem which needs to be fixed, but it can only be fixed if the doctor knows about it.

Your medical records are evidence for your case. If your records are missing complaints about certain injuries or don’t describe how or if an injury has occurred, you can find yourself having a hard time receiving benefits from your workers’ compensation case.

Step Three: Dealing With the Insurance Company

In most instances, your employer has an insurance company that provides them insurance for workers’ compensation cases. If your employer does not have insurance, they may be “self-insured” and have the money themselves, or they may be covered by the Uninsured Employer’s Fund of Virginia.

In every case, you must keep in mind that the insurance company is a profit-driven business which is looking to spend the minimum amount of money possible. In many cases, the cheapest thing to do is to provide the injured worker with medical care in order to help the injured worker recover and get back to work without needing more extensive treatment or pay for time off from work. However, when the injury is more serious, the injured worker may find that the insurance company is actively trying to cut costs, and the most effective cost cutting measure is to try and deny any responsibility for your injuries.

If you are contacted by the insurance company and asked if they have permission to take a “recorded statement,” you do not need to comply with that request. A recorded statement is when someone from the insurance company interviews you about the injury and records your statement. A recorded statement provides the insurance company with extra details and information which can (and oftentimes will) later be used against you. You are never required to give a recorded statement.

After you are injured, the insurance company must decide whether they will accept responsibility for your injury. If they have decided to accept responsibility, you should be offered a choice of at least three different doctors who can provide treatment for your injuries. This is referred to as a “panel” of doctors in Virginia. You should choose one of these doctors. After you have made your choice, this doctor and their referrals will be the responsibility of the insurance company. If you try to get your own treatment outside of this doctor, you should expect to have to pay for those costs yourself.

Step Four: Get Disability Slips From Your Doctor

Every time you see a doctor after a workers’ compensation injury, you should never leave the appointment without the doctor writing down what your medical restrictions are. Your doctor will either (1) restrict you totally from doing any sort of work, (2) restrict you from certain activities but clear you for light duty or (3) release you to return to work full duty, without restrictions.

If your doctor has restricted you to light duty (meaning you can do some work, but not all of your normal work duties), it is very important that the doctor give you clear instructions about the sorts of activities you can reasonably do at work while allowing you to recover, and without putting you at greater risk of further injury. Some examples of light duty restrictions include limits on how much weight can be lifted, as well limits on bending, kneeling, climbing, sitting or standing.

Step Five: Follow Your Doctor’s Advice and Keep Your Employer Updated

If your doctor has released you back to doing light duty or full duty work, you should let your employer know about this as soon as possible in order to see if they can provide you with work. If your doctor has released you back to full duty work, you only need to ask to return to doing the job you were doing before the injury occurred. If you were released to light duty, you need to show the doctor’s restrictions to your employer and ask them if they can accommodate those restrictions in the workplace.

If your doctor finds that you are totally disabled from work (meaning you can’t work at all—also known as temporary total disability), you should be eligible to receive workers’ compensation payments for time that you are out of work. You should let your employer know that your doctor has determined you’re totally disabled from working for the time being.

Once you have been properly released to return to your preinjury work, your only chance at being paid is by returning to work and getting paid the way you were paid before the injury. However, if you have been released by your doctor to return to light or full duty work, you need to let your employer know you are eligible to return to work (with restrictions if you’re on light duty), in order to ensure you can get paid. If your doctor has released you back to work to light duty but you do not tell your employer, you may not be eligible for workers’ compensation benefits for time off of work.

If your employer says they can accept you back to work with your current restrictions, you should make sure that they are honoring those restrictions. If your doctor, for example, tells you to not do any overhead lifting at all, yet your employer asks you to stock the top shelves, you should remind your employer that your doctor has forbidden you from doing that activity. You are allowed to refuse to do activities which your doctor has advised you to not do. If you’re being asked to do something your doctor said not to do, or you are doing something you feel you cannot do, you need to notify your doctor right away.

Step Six: Follow Up With Your Doctor

The goal of medical treatment in a workers’ compensation case is to let you recover and heal from your injuries, be released from the doctor’s care and to return to your normal life feeling healthy and able to work. However, until your doctor or therapist says you are released from care and don’t need to come back to see them anymore, you should return to them for continued treatment. At the end of your appointments, your doctor should tell you how soon they want to see you again, and you should make sure to schedule your next appointment for that time.

With proper care, your condition should improve; however, there is always the possibility that your condition can get worse. The doctor needs to know about new problems which were either not there right after the original injury, or which came about afterwards as a result of the injury. If you start feeling new problems, you need to make the doctor aware of them so they can determine if those issues are related to your injury and treat them.

Continued visits to your doctor should also keep you updated about your current work status. If you are still on light duty or temporarily totally disabled (TTD) status, but do not visit your doctor for a disability slip, it can be hard to prove you are entitled to payments for periods that you are not being seen by a doctor.

Finally, you have the right to ask your doctor for referrals to different medical specialists if they are needed. If you are referred by your doctor to another specialist or treatment provider, it’s important you try to get an appointment with them as soon as possible.

Step Seven: Should you hire an attorney?

When you’re unable to get what you want, and you cannot figure out the solution yourself, it’s okay to ask for help. If you find you’re not getting what you want or need, or you feel like you’re not being treated fairly by your employer or their insurance company, you should consult with a lawyer.

Even if you feel that your employer and insurance company seem to be treating you well, you can still talk to a lawyer. Talking to a lawyer can cost you nothing beyond time, as many lawyers give free consultations. There are often benefits available to you which you are not even aware of.

If your case has been denied by the insurance company, you should definitely speak with a lawyer. This is also true if you are not being paid for time missed from work or when the insurance company is refusing to pay for or authorize medical treatment that’s been recommended by your treating doctor.

If you decide to hire an attorney in Virginia, keep in mind that you are generally only paying the attorney a percentage out of what they have recovered for you. If your attorney gets nothing for you, they do not get paid in Virginia. Every attorney’s fee must be determined and endorsed by a judge.

Step Eight: File a Claim to Protect Your Rights

Claims for Virginia workers’ compensation benefits generally must be filed within a maximum of two years of the date you were injured. In most instances, failing to file a claim within two years can prevent you from receiving any benefits. If you do not hire an attorney, you should still file a claim for benefits with the Virginia Workers’ Compensation Commission. The following link includes the form, as well as instructions: http://www.vwc.state.va.us/content/claim-benefits-form.

Hopefully, this has helped explain what your rights are if you’re injured on the job in Virginia. Remember, every case is different, and this guide is not a substitute for a competent, experienced lawyer. If you’ve been injured at work and have additional questions about your rights, you should reach out to a competent, experienced workers’ compensation attorney.

For information on workers’ compensation claims in D.C., check out my colleague David Kapson’s blog post on that topic. For information on how workers’ compensation claims work in Maryland and D.C. when you have more than one job, my colleague David Snyder has an excellent blog post you may find helpful. For information on why the workers’ compensation system is important and protects the rights of everyday, hard-working Americans, my colleague Krista DeSmyter lays out the case in a recent post that I also strongly recommend.

Work Injuries: How Did I Get Here?

by David Kapson | March 5th, 2018

Hello, my name is David Kapson, and I am an effective and experienced personal injury attorney with a proven track record of securing medical treatment and money benefits for injured workers in the DC metro area. The purpose of this blog is to provide a resource for folks who may find themselves struggling with confusing questions and difficult decisions following a life-changing accident at work. But before we get to that, let’s start with two things I love: pop culture and stories.

From Wilkes-Barre to Washington

In 1980, the band Talking Heads released their iconic single, “Once in a Lifetime.” As the opening verse unfolds, Heads singer David Byrne asks, “How did I get here?” Many people that I have met and represented over the past seven years ask themselves the same question following a life-changing injury that occurred in the course of their employment. For some, the circumstances that lead to the question, “How did I get here?” include medical expenses, difficultly getting access to medical treatment and the heavy toll of disabling injuries that keep them out of work. Oftentimes, these injuries lead to effects that ripple through the lives of the injured worker and their families, including the inability to pay bills, buy clothes and school supplies for children, put presents under the tree at holidays, or in some cases, keep a roof over their families’ heads or food in their bellies. Let me provide a few tips if you suffer a work injury and find yourself asking, “How did I get here?”

But first, let me tell you a little about how I got here. In 1980, while the Talking Heads were taking the New York City music scene by storm, my parents were getting married in a little town outside a little place called Wilkes-Barre, Pennsylvania. This is the coal region of Pennsylvania—a blue-collar area in the Northeast where, for the most part, people made a living with their hands or their backs. Most adults I grew up around had a high school diploma, worked a trade, worked in construction and carpentry or worked in the hotel and restaurant setting. My grandfather on my mother’s side was a coal miner, starting out in underground mine shafts, and later above ground on strip mines. My mother’s brother also worked in the strip mines, and later as a carpenter where a work injury lead to his permanent and total disability. My aunt was a nurse. My grandfather on my father’s side worked for the phone company, mostly 15-20 feet above ground hanging cables on telephone poles. But I grew up running around behind the scenes of a hotel in Wilkes-Barre where both of my parents worked. In fact, it’s also where they met, but that’s another story.

My father started as a member of the banquet set-up team at the hotel. This was a physical job that required him and his co-workers to set up and break down hundreds of dining tables, chairs, and equipment in the hotel’s four large ballrooms for events like weddings, bar mitzvahs, awards dinners, meetings, etc. Eventually, after working at the hotel through college, he was able to rise through the ranks to a management position and helped to manage the hotel’s inventory supply. My mother was a banquet waitress from the time before I was born through the time I was about half way done with high school. She was then promoted to the banquet manager and began to lead a team of banquet servers and set-up workers. Today, she continues to lead the hotel’s entire banquet and catering division and is the area’s go-to person for all your wedding planning needs (plug, plug, Mom!).

My dad worked days and my mom worked nights, so most of my afternoons were spent at the hotel waiting for my dad’s shift to end and my mom’s to begin. My mom would drive me there, and my dad would take me home with him from work. I didn’t know it at the time, but my path towards helping people with work injury claims started to form when I was just a kid running around that hotel. I saw behind the scenes. I saw how physically demanding a customer service job in the hotel and restaurant industry can be. I understood the risks of how dangerous a slippery floor can be, or how a tiny mistake with a very sharp knife can change a person’s life and livelihood, or how lifting a heavy box could take a person out of work for months or even years.

Later, during high school and college, I started working at the hotel for my mom as a banquet server, and eventually as a bartender. Not only did I learn where to set the salad fork and where the bread plate goes while properly setting a table (skills I still use today to impress my wife), but I also lifted thousands of heavy trays stacked with dishes, silverware, glasses, etc. I spent many long hours and shifts on my feet and scrambling to keep the customers happy. Even as an eighteen-year-old, it was physically demanding hard work. Many of the people I worked with, especially the waitresses at that time who were in the 40s, 50s and even 60s, had made a career and supported families from the same type of work. Without my knowing, all of this experience shaped who I would become. Later, I would realize that not only did it shape me, but it shaped WHO I wanted to help in this world: honest, hardworking people who suffer a life-changing injury on the job.

My parents’ hard work gave me the opportunity to go to college and eventually law school. I sometimes tell people that I stumbled upon workers’ compensation as the area of law that I practice the most, but when I reflect, it really feels like it was my destiny all along. Now, after seven years in practice, I cannot imagine being an attorney without devoting my career to the purpose of protecting the rights of injured workers and putting their interests first.

What You Should Do if You’ve Been Hurt on the Job

So, that is how I “got here.” Let us now get to the guide or resource portion of this blog post. If you suffer a work injury and find yourself asking, “How did I get here?” remember to do these three things:

  1. Be honest.
  2. Get medical treatment.
  3. Attempt to return to work when medically cleared to do so.

Let’s look at each of these individually.

Be Honest

Sometimes, the best legal advice is the most obvious. There is a stigma in society attached to work injuries and the people who suffer them: “liars, fakers, milking the system, etc.” We have all heard it. It’s out there in the world. However, this advice is not meant for someone trying to game the system or defraud their employer by faking a work injury. It’s for the honest, hardworking person who suffers a work injury that has the potential to be life-changing.

For those people—the people I want to help—one of the most important and easiest things to do from the very beginning is to tell the truth about what happened and be honest about all of the injuries suffered as a result of the work accident. Telling the truth about what happened is important because the employer must be notified if they are going to take responsibility through the workers’ compensation system for an injured worker. In most states and jurisdictions, there is a time limit for the injured worker to report the injury to their employer in order to qualify for all of the rights and benefits associated with a workers’ compensation claim. Do not waste time. Tell the truth about what happened when notifying your employer. Even if the injury happened because it was your fault, you are not prohibited from bringing a workers’ compensation claim. It’s a no-fault system, so be honest and report truthfully.

Telling the truth should not stop after the reporting of an injury. It should continue through to all medical providers the injured worker sees for treatment following a work injury. I always tell new clients that telling the truth in this setting really has two sides. First, and most obviously, telling the truth means not lying or making up something that isn’t true. That’s the easy part: don’t lie. The second side is a little less obvious at first, but often makes the biggest difference in the end: do not hold anything back. This means paying attention to your body and telling the doctor about all of the symptoms and complaints in every part of the body injured either as a direct result or as a consequence of the work accident. Telling the doctor all of your symptoms and complaints means telling every doctor you see, whether your treating doctor, or the doctor the insurance company sends you to for an evaluation, all of the symptoms and complaints and when you experience them. For example, a person with a lower back injury may experience more pain when they have to bend, twist, stoop or when lifting. They may also experience shooting or radiating symptoms down into one or both legs when moving a certain way or performing a certain action. You may not feel this while sitting on the exam table at the moment the doctor asks, “How do you feel?” but that should not stop an injured worker from telling the doctor everything. The doctor cannot read your mind and you may not put yourself in the best position for a full recovery if you hold back when explaining to the doctor where it hurts.

Get Medical Treatment

The next simple pointer is to do what the doctor says, so you can try and get better! Another stigma or myth about a workers’ compensation claim is that it leads to a lucrative settlement or monetary award. The truth for the vast majority of people injured on the job is that the workers’ compensation system is not a solution for the rest of their lives. In fact, the longer you stay in the workers’ compensation system, the greater the chances of a poor outcome with your claim.

One way to shrink the amount of time you spend in the workers’ compensation system is to be committed to the treatment protocol outlined by your physician. That means making it to all your appointments, having honest and open dialogue with your doctor, following your doctor’s orders (i.e., physical therapy, medication, diagnostic tests like MRIs, CT-scans, etc.) and collecting the necessary paperwork and referrals from the doctor’s office to prove the insurance company a means to approve the recommended treatment. The goal here is to do as much as you can to get better and back to being yourself again. It’s not fun to be injured, so do yourself a favor and get as much treatment as you possibly can to get better!

Attempt to return to work when medically cleared to do so.

Finally, when the doctor releases you to return back to work in some capacity, make an attempt to go back to work. This is easy for injured people who make a full recovery: you get released and return to your regular, full-duty employment. For folks who are gradually released back to work with restrictions or who are facing a future of returning to the job market with permanent restrictions, the path can take some twists and turns. If you are released with some type of restriction, it is usually in your best interest to share that information with your employer and ask them whether they have work to do within those restrictions. It’s important to ask, even if you know or think you know the answer is that they don’t have work within those restrictions. In some cases, employers will offer work within the restrictions provided by the doctor, in which case I always advise my clients to give it a shot! You never know if you can actually do something unless you try, right? It may be work you can do, and in time you progress back to regular full-duty job. Or, the work might be too physically demanding, at which point your best bet is to return to the doctor to see about having the restrictions modified based on where you are in the recovery process. Generally, if your employer does not have work within your restrictions and advises you accordingly, you may still be entitled to claim workers’ compensation benefits even though you are not fully back to work.

How Injured Workers Can Find the Right Attorney

The bottom line is that the world of workers’ compensation can be difficult, confusing, and even bizarre. Hopefully this blog post shed some light on what to do to protect your rights if you are injured at work. Even if you follow these guidelines, you may still come to a point where you ask yourself, “How did I get here?” If that is the case, the best advice I can give you is to consult with an attorney who specializes in successfully handling workers’ compensation cases. I suggest to you that the measure of any attorney’s professionalism in this area is whether they are more worried about your success than you are. That is the standard I try every day to live up to for my clients, and that is the level of professionalism any potential new client should be looking for. Make no mistake—an injured worker is always better off with a knowledgeable and experienced attorney than attempting to go it alone against massive corporate insurance companies.

In closing, please allow me to offer just a little more advice about what to look for in an attorney to represent you in a workers’ compensation claim. Irrespective of number of cases they have tried, or their number of years in practice, a claimant’s workers’ compensation attorney is not worth their salt unless they do three things:

  • Educate their clients about the law and the workers’ compensation system
  • Advise their clients on how to navigate the workers’ compensation system
  • Be willing to litigate the claim against the insurance company if a dispute arises over the client’s rights to medical treatment or money benefits

I would also encourage anyone searching for a workers’ compensation attorney to place a premium on choosing a lawyer who will protect the rights of the injured worker and put their interests first.