When an Injured Worker Can Not Drive . . . and Can Not be Driven

When an employee is injured at work, the employer is obligated to provide medical treatment, and the injured worker is obligated to accept and comply with the provided medical treatment. Transportation to and from medical appointments is subject to the same edict. 

It is well established that the Commission holds the employer responsible for reasonable and necessary transportation costs in connection with an injured worker's medical treatment. See Va. Code §65.2.603. Thus, when an injured worker is unable to drive, or to be driven, to a medical appointment, and requests that the employer/carrier provide transportation, the employer/carrier must provide transportation or pay the reasonable costs of such.

But what happens if the transportation company refuses to transport the injured worker due to his or her use of profanity or otherwise abusive behavior? Or suppose the injured worker makes unreasonable demands from the transportation company? Just how far must the employer/carrier go to accommodate an injured worker's transportation needs?

Unjustified refusal of medical treatment is grounds for terminating workers' compensation benefits. Va. Code §65.2-603(B). An injured workers' attitude toward medical treatment can rise to the level of refusal of medical treatment. For example, the Commission has found refusal of medical treatment where an injured worker was difficult and irate with the therapist during a functional capacity evaluation; the injured worker's attitude interfered with the provided medical care. Similarly, if the injured worker interferes with the provided medical care by creating roadblocks to transportation to the appointments, that too may be considered refusal of medical treatment.

It is likely that the Commission will require that the employer/carrier provide at least a second chance. Therefore, arrange for transportation with another company. If the new service reports similar problems, then take appropriate steps to terminate benefits until such time as the injured worker is willing to comply with medical treatment, including transportation.

As a practice point, be sure to obtain written documentation from each transportation provider regarding the injured worker's behavior and why it is unable to provide transportation to him or her - which can then serve as the documentary evidence needed to support the termination of benefits.

Workers' Compensation Insurance

With the intention of protecting employees by enabling them to collect any workers’ compensation claim due them by their employers regardless of the financial health of the employer, Virginia law requires every employer who regularly employs three or more full-time or part-time employees to purchase and maintain workers’ compensation insurance.  In addition to maintaining proper insurance, employers subject to the Virginia Workers’ Compensation Act must file evidence of their legal compliance with this law on an annual basis, or as otherwise required.  Further, employers are prohibited by law from deducting from the wages of any of its employees any part of the cost of the insurance or otherwise requiring employees to contribute to such costs.    

In complying with this insurance requirement, Virginia employers may purchase and maintain a workers’ compensation insurance policy from a company licensed to do business in Virginia.  In the alternative, an employer may apply to the Virginia Workers’ Compensation Commission for approval to operate as an independent self-insurer.  Additionally, there are other, less often utilized methods of ensuring compliance with this law that may be more cost-effective and better suited to a particular business operation.  An employer may become a member of a group self-insurance association licensed by the Virginia State Corporation Commission, or enter into an agreement with a professional employer organization (“PEO”).

Employers who refuse or neglect to obtain workers’ compensation insurance can be fined up to $5,000.00, and in fact, the Commission has been instructed by the Virginia General Assembly to impose a civil penalty on all employers that do not comply with the insurance provisions.  Also, failure to provide the required notification to the Commission, or requiring any monetary contribution from employees for the cost of insurance, can expose the employer to additional civil fines and penalties.  In addition to the civil penalties assessed, any employer who knowingly and intentionally fails to comply with the insurance requirements is guilty of a Class 2 misdemeanor; and continuing failure to obtain insurance can result in the issuance of an order requiring the offending employer to cease and desist all business transactions until such time as the proper insurance is obtained.  

If you are unsure whether you are an employer covered by the Virginia Workers’ Compensation Act, or whether you have properly complied with the laws requiring insurance coverage, please contact your attorney, lest you find out the hard, and expensive, way after a workplace injury occurs. 

To learn more about the insurance requirements, follow this link to the Virginia Workers' Compensation Commission website: VWCC: Employer FAQs.

Preventing Workers' Compensation Fraud

According to some statistics, workers’ compensation fraud contributes significantly to the annual estimated 30 billion dollar insurance fraud problem. Fraudulent workers’ compensation claims drain time and resources that are meant to assist workers legitimately injured on the job, and cost employers in higher insurance premiums.     

Though insurance fraud can be a staggering problem, there are steps employers can take to lessen the risk of suspect or bogus workers’ compensation claims.

1.             Challenge the common misperception that workers’ compensation fraud is a victimless crime and educate employees on the large-scale consequences.  Using posters and newsletters spread the word that yzou and your insurance carrier will vigorously investigate suspect claims and refer employees who bring fraudulent claims to appropriate law enforcement agencies for prosecution.    

2.             Pay attention to the rumor mill.  Following a workplace injury, and throughout the claims process, rumors often circulate among employees. Sometimes rumors are grounded in fact. Paying attention to worker scuttlebutt can help in investigating a claim’s validity.

3.             Implement an efficient injury response plan and clearly communicate the proper practices to employees.  Provide procedures for reporting occurrences.  Designate appropriate personnel to process accidents and claims, secure a description of the accident, take photographs and obtain statements from the injured worker and witnesses.  Promptly provide appropriate medical care and encourage employees to seek treatment.      

4.             Consider using video monitoring equipment. Surveillance tactics are often utilized by insurance companies to “catch” fraudulent claimants; employers can utilize similar tactics to deter fraud.  Although such tactics may seem intrusive, if properly conducted at times and places where there is no reasonable expectation of privacy, it is not an illegal invasion of privacy. 

5.             Know how your insurance carrier handles claims.  Keep the lines of communication open with your carrier or the attorney assigned to represent your interests in workers’ compensation claims.  Be responsive to information requests. 

Finally, keep in mind that although workers’ compensation fraud can be costly, and frustrating, remain wary of becoming too cautious.  Be careful about accusing anyone of workers’ compensation fraud, particularly if coupled with termination of employment.  If you cannot prove it, and often times you can’t, there may arise a strong inference that you acted improperly in response to a legitimate claim.  Be careful not to become tainted by staggering fraud statistics and keep in mind the beneficent purpose of workers’ compensation laws.

For additional information, or to report workers' compensation fraud, you can contact the Virginia State Police Insurance Fraud Program. Here is the website: Virginia State Police Insurance Fraud Program.

Employer's Accident Reports

Employers often ask why they must file an Employer’s Accident Report (“EAR”) following every injury at work, even when the employee does not lose time from work, require immediate medical attention, or file a workers’ compensation claim.  The answer is simple.  The Virginia Workers’ Compensation Act requires that an employer file the EAR within 10 days of an injury.  

However, there are other reasons why filing an EAR is important.  First, employees generally have 2 years from the date of injury to file a claim for workers’ compensation benefits; however, under certain circumstances, the failure to file an EAR tolls that 2-year period until such time as the report is filed.  

Also, filing a timely report aids insurance carriers and adjusters in processing claims, ensuring that necessary benefits and payments are made in a timely fashion.  This can help avoid possible fines and sanctions from the Virginia Workers’ Compensation Commission (“Commission”).

Finally, if an EAR is not filed, the employer or its insurance carrier may be required to appear before the Commission at a show cause hearing to explain why an EAR was not timely filed.  The Commission may assess up to a $500 penalty; and if the Commission determines the failure was willful, it can assess a penalty of not less than $500 and not more than $5,000.  

There are several events that trigger the need to file an EAR within 10 days of an injury or accident.  They include:  (1) lost time from work exceeds 7 days; (2) medical expenses exceed $1,000; (3) compensability is denied; (4) issues are disputed; (5) accident resulted in death; (6) permanent disability or disfigurement involved; or (7) a specific request is made by the Commission.  

Filing an EAR has never been simpler.  All accidents must be reported to the Commission electronically by EDI. Instructions for completing the form are provided.  You should be as thorough and accurate as possible, however, remaining equivocal is also recommended.  For example, use language such as “the employee advises . . .”  Although the EAR is generally not considered evidence, if you intend on disputing a claim, consistency is an important factor in building a strong defense. 

For more information on preparing and filing your Employer's Accident Report, contact us, or check out the Commission's website here: VWCC.Employer's Accident Report.

Welcome to Vandeventer Black's Workers' Compensation Blog

I am pleased to introduce Vandeventer Black's Workers' Compensation Blog on which I will be posting case studies, suggested practices and policies, and general observations about the workers' compensation system in Virginia, as well as the federal system pursuant to the Longshore & Harbor Workers' Compensation Act. I, along with my fellow Vandeventer Black workers' compensation attorneys, hope to be able to address your concerns, answer your questions, and provide insights gained over many combined years of legal practice in these areas. I anticipate making this blog a productive, and interactive, tool for insurance adjusters, employers, (and yes, even injured workers -

although, if you are an injured worker reading this blog, be sure to read the disclaimer above. This blog is not designed to give legal advice about any specific case or set of facts; cases must be analyzed individually), and other attorneys. So, please let me know what you think, and what you want to know. - Lisa 

My first substantive post will follow, and aptly addresses the Employer's Accident Report, which is generally how a workers' compensation claim gets its start. It therefore seemed appropriate that it be used to give this workers' compensation blog its start.