Losing Your Virginia Workers’ Compensation Due to an Employer’s Application for a Hearing

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In Virginia, the insurer can cut off compensation payments by filing an Employer’s Request for a Hearing with the Virginia Workers’ Compensation Commission.

The two typical grounds for an Employer’s Application are (1) the injured worker has returned to work or (2) a doctor says the injured worker no longer has work restrictions due to the work accident. In the first instance, the insurer is protected from overpaying the worker since after all the worker is back at work earning a salary but the worker will “lose compensation” rights. So, the insurer wants to be relieved from the obligation of paying weekly payments and thus the Employer’s Application immediately suspends the requirement. In the second instance if the treating doctor has released the worker with no work restrictions then again the insurer can be protected from overpaying compensation (even though the worker has not returned to work) by filing the Employer’s Application attaching the medical report and again the injured worker will “lose compensation” when benefits are suspended.

Sometimes, the insurer is not convinced the injured worker cannot work even though the treating doctor has not released the worker. In that instance the insurer procures a contrary medical report by sending the worker to an independent medical doctor (who is not independent but rather is paid for by the insurer to deliver an opinion the insurer wants to hear). If the insurer can obtain a report releasing the worker, the insurer will again file an Employer’s Request for Hearing attaching the “independent” medical report. At that point since the report is not from the treating doctor the Commission has a problem. Should it agree to the suspension of benefits and refer the Employer’s Application for a Hearing (which would mean the injured worker will “lose compensation” until there is a hearing which can be months down the road? Often, to counteract the Employer’s Application the injured worker or the worker’s lawyer will submit a report from the treating doctor contradicting the “independent” medical report. Then the Senior Claims Examiner will have to decide if benefits should be suspended pending a hearing or should the Employer’s Application be dismissed. It used to be in this situation the Senior Claims Examiner would “always” dismiss an Employer’s Application if it was directly contradicted by a treating doctor’s report. However, there has been a trend to refer these cases to a hearing which means a suspension of benefits (the worker loses compensation) until there is a hearing which may be months away which means hardship for the injured worker.

In conclusion, sometimes the worker should “lose” his or her compensation when the worker has returned to work or has been released by the treating doctor. However, it does not seem fair for the worker to “lose” his or her compensation when the release is not by the treating doctor. Unfortunately in Virginia, the insurer can become impatient with the worker’s recovery and can procure a release of the worker from an independent medical doctor (who is a hired gun).


Source by Jerry Lutkenhaus

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