Who is covered under the Virginia Workers’ Compensation Act?
The Virginia worker’s compensation law covers every person who works in the service of another for hire or as an apprentice. This includes aliens and minors. It includes people whether the contract or apprenticeship is in writing or employed and even whether the contact is legal or not. The only exception is for workers who are not employed in the usual course of the trade, business, occupation or profession of the employer. The employer must generally have more than 3 employees regularly employed to run the business. If not, then the employer is not covered under the Act or required to have workers compensation insurance.
What kinds of injuries are covered under the law?
Injuries that can be identified by a single occurrence. Workplace injuries are generally covered in Virginia if:
- They were caused by an accident
- They were work related
- The occurred during work as opposed to away from work and
- The injuries must have been caused by the accident. The injury normally be due to physical change in the body.
Virginia also covers occupational diseases such as respiratory problems or exposure to toxic chemicals. The disease must be due to work though there is no need to show that specific accident caused the disease. Medical doctors usually are called in to show that the diseases were proximately caused by workplace conditions.
Ordinary diseases generally are not covered unless it can be shown with reasonable medical certainty that the disease resulted from work and not caused outside of work, and that one of the following applies:
- The disease was a natural consequence of an actual occupational disease or
- The disease was “an infectious or contagious disease contracted during ones’ employment in a hospital, sanitarium, laboratory or nursing home, or while otherwise engaged in the direct delivery of health care, or during employment as emergency rescue personnel” or
- is characteristic of the employment and was caused by conditions peculiar to the employment.
Carpal tunnel syndrome is compensable in Virginia while other types of repetitive stress injuries are not. Hearing loss is also compensable.
Common types of occupational illnesses include asthma, mesothelioma, bronchitis, chronic encephalopathy, black lung disease and pneumoconiosis.
What workplace injuries are not compensable under Virginia workers’ compensation law?
Except for carpal tunnel syndrome, repetitive stress injuries are not compesable. Aside from diseases that do not qualify as occupational diseases; back pain, neck pain, and spinal pain are not compensable unless they relate to a specific identifiable accident. In other words, if you’ve been working in a difficult job for many years and you develop a bad back due to that, you do not have a case unless you can pin the pain and problems to one, specific injury and that injury meets the other criteria for a workers comp injury.
Are emotional claims compensable?
As with other workplace injuries, if a worker suffers psychiatric or emotional problems due to a specific physical injury, employees may be treated by a psychiatrist or psychologist – and have the bills paid for. Many workers do suffer emotionally if they, for example, suffer an amputation. They are understandably distraught over the loss of the limb, the stigma that they perceive comes with being an amputee, and of course they ponder all the things they may never be able to do again. Depression and anxiety may result, and as long as there is a proper referral by the treating physician, the treatment for such issues is completely compensable. In fact, in some cases, the proper psychiatric treatment can mean the difference between a person’s return to the workforce or complete disability. In addition, sometimes, a good psychiatrist can provide protection against overzealous nurse case managers who try to force injured workers back to work before they are ready.
In some instances, even if there is not a traceable, physical accident, psychiatric damages might be compensable if they were a direct natural consequence of some work experience – such as seeing a shooting or other violent incident. What is key in those cases is the traumatic event must be outside the normal experience one would expect for such an occupation.
When must Virginia Workers’ Compensation claims be brought.
- For accidents, generally two years from the date of the accident.
- For occupational diseases, generally two years from the time the worker learns of the illness or five years from the date of the last workplace exposure – whichever date is earlier.
Some exceptions do apply. It is best to consult with an experienced Virginia workers’ compensation lawyer as soon as possible.
Does the employer have any defenses?
Not every workplace injury is compensable. Some employee misconduct can negate the right to benefits. Common defenses include:
Injuries that are self-inflicted such as suicide are not compensable. Other workplace injuries that are not paid in Virginia are:
- Willful misconduct such as intentionally ignoring safety law if it’s clear that:
- The safety rule was proper
- The employee knew of the rule
- The rule was meant to protect the employee
- The employee intentionally ignored the rule
- Injuries due to the employee’s use of drugs or alcohol if the employer can show the intoxication or inebriation cause the worker’s injuries.
Employers do have to give formal notice of any defense in compliance with the law. Attorney Joe Miller Esq. can explain if employers failed to give a proper deadline.
Can employees be punished for fraud or knowingly making false statements or failing to make necessary disclosures
Employees who knowingly make a false statement may be found guilty of a felony. They may also lose their right to benefits. Claimants who are getting benefits have a duty to notify their employer of any significant changes that might affect his/her right to benefits. Examples include returning to another job, remarriage, being sentenced to jail, or other consequences. Employees who obtained workers’ compensation funds through fraud may be liable for any overpayments.
Can an employer fire me if a file a workers’ compensation claim?
No. Employees have a direct right to file a work injury claim in Virginia. If a worker is fired or an employer threatens an employee, the worker should immediately meet with a Virginia worker’s compensation attorney to understand his/her rights.
What if I’m an independent contractor?
Workers who are not employees cannot generally request workers’ compensation insurance. Whether a worker is an independent contractor or an employee is not always clear. A Virginia work injury attorney can explain whether you might qualify as an employee. Even if the employer says you are an independent contractor, you may be legally an employee and have work injury rights.
We see this issue litigated many times as many employers think that they can reduce their business expenses by claiming that all of their employees are in fact independent contractors. They may even attempt to have the employee sign some kind of contract that says the employee agrees that he or she is an independent contractor. These “contracts” are not effective. An employer cannot “contract away” it’s obligations under the Virginia Workers’ Compensation Act. The Virginia Workers Compensation Commission is going to look at the “facts on the ground.” Some of the factors that can persuade a Commissioner that an employee is really an employee are:
- Does the employer have the right to control when, where, and how the worker does his/her job?
- How is the worker paid, how are expenses paid, who supplies the work tools?
- The general work relationship. Is there a written contract? Did the worker get benefits such as insurance, vacation, or pensions?
- Can the employee be fired for misconduct?
- Does the employee have to follow a set of rules set forth by the employer
- Does the employee have to report to work at a specific time each day?
Speak with an Experienced Virginia Work Injury Lawyer Today
Virginia workers’ compensation attorney Joe Miller Esq. can answer all of your work injury questions. He has successfully represented thousands of injured workers during his twenty-five plus years of experience. For a free consultation, please call me at (888) 694-1671 or complete my contact form.