{"id":4909,"date":"2020-03-26T11:10:48","date_gmt":"2020-03-26T15:10:48","guid":{"rendered":"https:\/\/joemillerinjurylaw.com\/?p=4909"},"modified":"2020-05-26T13:45:16","modified_gmt":"2020-05-26T17:45:16","slug":"will-i-lose-my-comp-checks-if-im-laid-off-due-to-the-coronavirus","status":"publish","type":"post","link":"https:\/\/joemillerinjurylaw.com\/will-i-lose-my-comp-checks-if-im-laid-off-due-to-the-coronavirus\/","title":{"rendered":"Will I Lose my Comp Checks if I\u2019m Laid Off due to the Coronavirus?"},"content":{"rendered":"<p><b>Clearly many folks are concerned right now about the effect on their weekly compensation checks of any potential layoff of themselves and their fellow employees at work or company closures due to the severe economic downturn and mandatory closures related to the Coronavirus.\u00a0<\/b><\/p>\n<p><span style=\"font-weight: 400;\">This is a very important question right now and also this particular question regarding layoffs happens to be an evolving and very active area of VA Workers Comp law.<\/span><\/p>\n<p><iframe loading=\"lazy\" src=\"https:\/\/www.youtube.com\/embed\/2eAj7yWYgv8\" width=\"560\" height=\"315\" frameborder=\"0\" allowfullscreen=\"allowfullscreen\"><\/iframe><\/p>\n<p><span style=\"font-weight: 400;\">The short answer is if you are currently under an ongoing, finalized <\/span><a href=\"https:\/\/joemillerinjurylaw.com\/why-an-award-agreement-is-not-enough-to-get-your-comp-benefits-paid-in-virginia\/\"><span style=\"font-weight: 400;\">Award<\/span><\/a><span style=\"font-weight: 400;\"> for benefits, meaning an Award for weekly checks for either Temporary Total or Temporary Partial Disability, then NO, you will not lose your benefits; however, if you are NOT under an Award yet and your position is permanently eliminated or the layoffs are clearly permanent with no chance of re-hiring, then you will likely have a very difficult time of trying to obtain comp check benefits from the date of such layoff forward. You may only be able to claim benefits up until the date of the layoff.\u00a0 It\u2019s not impossible to prove ongoing benefits in a permanent layoff situation, but you will be required to rise to a very high level of proof to show that your inability to obtain a job is due to your disability and not just to your job being eliminated permanently.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400;\">That being said, if the layoff is only <\/span><b>temporary<\/b><span style=\"font-weight: 400;\">\u2014as many will likely be in our current situation\u2014then if you are not under an Award and on light duty, you would still be able to claim benefits; however, you would need to engage in active <\/span><a href=\"https:\/\/www.youtube.com\/watch?v=5MG2ETcn9p0\"><span style=\"font-weight: 400;\">marketing of your residual capacity to work<\/span><\/a><span style=\"font-weight: 400;\"> in order to prove your inability to find a job.\u00a0 And of course, you will likely end up at a Workers Comp Commission <\/span><a href=\"https:\/\/www.youtube.com\/watch?v=KxD2QIf7zTM\"><span style=\"font-weight: 400;\">Hearing<\/span><\/a><span style=\"font-weight: 400;\"> to prove you engaged in adequate marketing.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400;\">Of course, those held out of work 100% by their doctors due to their work injuries and have the physician\u2019s work notes to prove it would not need to prove marketing.\u00a0\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400;\">If this all seems confusing, I encourage you to <\/span><a href=\"https:\/\/www.youtube.com\/watch?v=xrKB0kQYDhY&amp;feature=emb_logo\"><span style=\"font-weight: 400;\">first see my video on the importance of being under an Open or Ongoing Award for benefits in Virginia<\/span><\/a><span style=\"font-weight: 400;\">. It\u2019s important to understand what an Award accomplishes for you in Virginia.\u00a0\u00a0<\/span><\/p>\n<p><b>So why is someone under an ongoing or Open Award in a better position compared to someone who is not in a layoff situation?\u00a0\u00a0<\/b><\/p>\n<p><span style=\"font-weight: 400;\">It\u2019s because when you&#8217;re under an ongoing Award, that Award is a proclamation or <\/span><b>Order <\/b><span style=\"font-weight: 400;\">by the Virginia Workers Compensation Commission that you are entitled to the weekly benefits stated in that Order on an ongoing basis<\/span><b>, until proven otherwise by the defense<\/b><span style=\"font-weight: 400;\">.\u00a0 In other words, you have met your burden and you have <\/span><b>won your case<\/b><span style=\"font-weight: 400;\">. Many times, the Award occurs due to an <\/span><a href=\"https:\/\/www.youtube.com\/watch?v=7ixL7IB3wBY\"><span style=\"font-weight: 400;\">Award agreement<\/span><\/a><span style=\"font-weight: 400;\">, but the result is the same\u2014once that Award has been entered by the Commission and the 30 day appeal period has passed, the Order is Final and you have <\/span><b>won.<\/b><span style=\"font-weight: 400;\">\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400;\">When you have an ongoing or Open Award for weekly benefits, it becomes the defense&#8217;s burden to prove you&#8217;ve been returned to full duty and that you are capable of performing your pre-injury work if they want to get out of paying you those weekly benefits.\u00a0 There are a few other ways for them to stop the Award, such as failure to comply with medical treatment or vocational rehabilitation, but they\u2019re not relevant to our discussion right now.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400;\">If the defense cannot prove you are capable of a return to full duty, then you are going to remain under your ongoing Award and they still have to pay you your ongoing, weekly benefits\u00a0 even during the layoff and even if the layoff is permanent.\u00a0\u00a0<\/span><\/p>\n<p><b>Now what about folks who are not under an Award yet, but are trying to prove one<\/b><span style=\"font-weight: 400;\">?\u00a0\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400;\">The case law is clear that for folks who are not yet under an Award, the difficulty of proving you are entitled to benefits really depends on whether the layoff is <\/span><b>temporary or permanent.\u00a0<\/b><\/p>\n<p><span style=\"font-weight: 400;\">This is because an injured worker who is not yet under an Award has no Order from the Commission regarding anything. Nothing has yet been proven, so the burden of proof remains on the injured worker to show he or she is entitled to benefits.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400;\">In a <\/span><b>temporary<\/b><span style=\"font-weight: 400;\"> layoff situation, if you are on light duty, assuming your employer does not accept you back at light duty status, so long as you are able to prove sufficient marketing of your residual capacity to work (i.e. <\/span><a href=\"https:\/\/www.youtube.com\/watch?v=5MG2ETcn9p0\"><span style=\"font-weight: 400;\">looking for work elsewhere within your physical restrictions<\/span><\/a><span style=\"font-weight: 400;\">) during the temporary layoff, you should be able to prove you\u2019re entitled to benefits. Of course, you will likely have to go to Hearing to prove that.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400;\">Again, if you are in a temporary layoff, and your authorized treating physician has you out 100% due to your injuries, then since you currently have no residual capacity to work per your doctor, you do not have to market or look for work.\u00a0 You would only need to prove your total incapacity with your doctor\u2019s work notes and office notes.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400;\">Unfortunately, for those of you whose positions are eliminated and are fully and permanently laid off along with your coworkers, if you are on light duty and not yet under an Award, you will\u00a0 unfortunately find it <\/span><b>much more difficult<\/b><span style=\"font-weight: 400;\"> to be <\/span><b>able to claim ongoing weekly <\/b><a href=\"https:\/\/www.youtube.com\/watch?v=b0lLhc5Fyhw\"><b>workers comp benefits<\/b><\/a><b>. <\/b><span style=\"font-weight: 400;\">The case law in such circumstance requires a higher level of proof to show that your economic loss is due to your injury and not the elimination of your job.<\/span> <span style=\"font-weight: 400;\">\u00a0\u00a0\u00a0\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400;\">The Commissioners and Judges have reasoned in the case law that since you don\u2019t yet have an Award, and your job has been eliminated, the burden is on <\/span><b>you<\/b><span style=\"font-weight: 400;\"> to prove economic loss due to your work injuries. And since the burden is on you for proof and since the reason you don\u2019t have a job is because your job was permanently eliminated, then you need to prove your economic loss is actually <\/span><b>related <\/b><span style=\"font-weight: 400;\">to your work injuries and not just the fact that your job does not exist any longer. In such cases, just doing the marketing\/looking for light duty work as usual is probably not enough. There needs to be proof that not only can you not find a job, but the reason you cannot find a job is because of your work restrictions as set forth by your treating doctor. If you don\u2019t have such proof, then the Commission will find that the loss is not related to your work injury. They will find that it is related to the fact that your job no longer exists.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400;\">Such proof may be through the hiring of an expert such as a vocational rehabilitation expert, and\/or through some kind of testimony or other evidence from one or more of the potential employers where you applied that you could not be hired because your work restrictions could not be accommodated.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400;\">We think that the <\/span><a href=\"https:\/\/cite.case.law\/va-app\/66\/531\/\"><span style=\"font-weight: 400;\">decision by the Court of Appeals back in 2016<\/span><\/a><span style=\"font-weight: 400;\"> which raised the standard of proof for permanently laid off employees was wrong and a harsh result, and in fact there were strong dissents by Judges on the case, but unfortunately those Judges were outvoted and that is the law in Virginia.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400;\">The only good news is that in many of the Full Commission decisions that have followed this 2016 Court of Appeals Case, the Commission has gone to great lengths to say it does not apply to the situation at hand. Clearly, the Full Commission also feels the Court of Appeals went too far and takes every opportunity to try to limit the harsh effects of that decision.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400;\">Also, just to be 100% clear, it is very important to distinguish between an Open or Ongoing Award and a Closed Award. A Closed Award is for some past period of weekly payments that has now ended because you have returned to work. Although such an Award contains a lifetime medical benefit and is also evidence that your claim is compensable (meaning there is no longer a defense that you did not have a legitimate, on-the-job injury) in terms of attempting to get your checks started again because you have been laid off, it\u2019s almost like have no Award at all.\u00a0 In other words, if you\u2019re on light duty, you would have to prove it\u2019s a temporary layoff and you would have to prove marketing just like the folks with no Award at all. And just like those folks, you would not be able to prove any entitlement to ongoing checks if your layoff became permanent.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400;\">We hope this article has been helpful.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400;\">From all of us here at Joe Miller Law\/The Work Injury Center, please stay safe, please follow the <\/span><a href=\"https:\/\/www.cdc.gov\/coronavirus\/2019-ncov\/prepare\/prevention.html\"><span style=\"font-weight: 400;\">CDC COVID-19 Guidelines for prevention<\/span><\/a><span style=\"font-weight: 400;\">,\u00a0 and God Willing we will all get through this safely together.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400;\">Attorney Joe Miller has been representing injured workers in Virginia and North Carolina for over 32 years. If you have any questions about a worker\u2019s compensation injury incurred by you or a loved one, please do not hesitate to reach out to us at <strong><a href=\"tel:\/\/888-694-1671\" title=\"888-694-1671\">888-694-1671<\/a><\/strong><\/span><span style=\"font-weight: 400;\">\u00a0or fill out our online <\/span><a href=\"https:\/\/joemillerinjurylaw.com\/contact-us\/\"><span style=\"font-weight: 400;\">contact form<\/span><\/a><\/p>\n<p><span style=\"font-weight: 400;\">Please do not wait to contact us, as there are time deadlines for filing your claim. If you fail to meet those deadlines, your right to benefits will be forever lost.\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Clearly many folks are concerned right now about the effect on their weekly compensation checks of any potential layoff of themselves and their fellow employees at work or company closures due to the severe economic downturn and mandatory closures related to the Coronavirus.\u00a0 This is a very important question right now and also this particular &#8230; <\/p>\n<p class=\"read-more-container\"><a title=\"Will I Lose my Comp Checks if I\u2019m Laid Off due to the Coronavirus?\" class=\"read-more button\" href=\"https:\/\/joemillerinjurylaw.com\/will-i-lose-my-comp-checks-if-im-laid-off-due-to-the-coronavirus\/#more-4909\" aria-label=\"Read more about Will I Lose my Comp Checks if I\u2019m Laid Off due to the Coronavirus?\">Read More<\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_uag_custom_page_level_css":"","footnotes":""},"categories":[231,13,96,95,10,97,31,94],"tags":[],"uagb_featured_image_src":{"full":false,"thumbnail":false,"medium":false,"medium_large":false,"large":false,"1536x1536":false,"2048x2048":false},"uagb_author_info":{"display_name":"Joe Miller","author_link":"https:\/\/joemillerinjurylaw.com\/author\/jmiller\/"},"uagb_comment_info":0,"uagb_excerpt":"Clearly many folks are concerned right now about the effect on their weekly compensation checks of any potential layoff of themselves and their fellow employees at work or company closures due to the severe economic downturn and mandatory closures related to the Coronavirus.\u00a0 This is a very important question right now and also this particular&hellip;","_links":{"self":[{"href":"https:\/\/joemillerinjurylaw.com\/wp-json\/wp\/v2\/posts\/4909"}],"collection":[{"href":"https:\/\/joemillerinjurylaw.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/joemillerinjurylaw.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/joemillerinjurylaw.com\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/joemillerinjurylaw.com\/wp-json\/wp\/v2\/comments?post=4909"}],"version-history":[{"count":0,"href":"https:\/\/joemillerinjurylaw.com\/wp-json\/wp\/v2\/posts\/4909\/revisions"}],"wp:attachment":[{"href":"https:\/\/joemillerinjurylaw.com\/wp-json\/wp\/v2\/media?parent=4909"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/joemillerinjurylaw.com\/wp-json\/wp\/v2\/categories?post=4909"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/joemillerinjurylaw.com\/wp-json\/wp\/v2\/tags?post=4909"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}