Will I be able to go back to my pre-injury job?
We get asked this question frequently in course of representing injured workers. Very often, injured workers have an injury to their back, legs, neck or some other body part that prevents the employee from being able to perform the job they did before their accident. For example, if someone is employed as a delivery driver for a delivery company and that job requires that the employee, climb ladders and lift heavy boxes, a worker with a back injury may not be able to perform those duties. In this example, if the injured worker's doctor is of the opinion that the injured worker cannot climb ladders and/or left heavy boxes, the injured worker cannot perform the job.
That much is, obvious. What is not so obvious is how to determine whether or how much weekly compensation to which the injured worker is entitled. To answer this question, we must first answer a few other questions:
1. Is the injured worker working in a job, either with the employer or somewhere else, making less than what the injured worker made before his or her accident.
2. If not, it is the injured worker searching for work within his or her work restrictions?
How much will I be paid if I am working in a light duty job that is not my pre-injury job?
If an injured worker is "partially incapacitated" -- in other words, has light duty work restrictions, the employer is, the employer is required to pay the employee at the rate of 66 2/3 percent of the difference between employee's average earnings before the accident. If the wages are the same as or more than the the employees average earnings before the accident, then the employer is not required to pay the injured worker compensation. These benefits are typically referred to as "temporary partial" benefits. In theory an injured worker can receive a maximum of 500 weeks wage loss benefits.
What if an injured worker is on light duty that keeps the injured worker for doing the pre-accident job, but no work is available?
If an injured worker has documented light duty work restrictions and is being paid weekly benefits after an Award Order has been entered by the Virginia Workers Compensation Commission, the insurance company has the right to assign "vocational rehabilitation" to help find the injured worker, work within his or her restrictions. This process is very often stressful for injured workers for different reason. For example, sometimes the vocational rehabilitation counselor does not really understand the work restrictions. Another example is that the vocational rehabilitation counseler does not understand the injured workers past work, education or desires for future work. Very often our lawyers help facilitate this relationship.
If, on the other hand, an injured worker is not being paid weekly benefits and is seeking compensation, the injured worker must search for work within the work restrictions. This is critically important and has become an increasingly complex issue in Virginia Workers Compensation cases. Our law firm very often litigates this issue before the Commission. An injured worker who is seeking temporary partial disability or temporary total benefits has a duty to looking for work within their restrictions. A well know case set out 6 factors that the Commission and Courts will review to determine if an injured worker has properly looked for work
- The nature and extent of the disability
- The employee's training, age, experience, and education;
- The nature and extent of employee's job search
- The employee's intent in conducting the job search
- The availability of jobs in the area suitable for the employee considering the employee's disability
- Any other matter affecting the employee's capacity to find suitable employment