DI 52120.255 Virginia Workers' Compensation (WC)
Workers’ compensation is monitored by the Virginia WC Board. WC insurance is provided through private carriers or employers may self-insure. Virginia’s Section 50-Rule 3 provides that all agreements as to payment of WC must be put in writing by the employer and promptly filed with the WC Commission. If the claim is denied the employer must notify the worker and the commission in writing.
A. Types of WC payments
The Virginia Workers’ Compensation Act is Statute 65.2; chapter 5 (65.2-500 through 65.2-531) describes indemnity payments. All periodic payments are subject to the state maximum and minimum amounts (see the chart under ‘REFERENCES’ below).
Except for Scheduled Awards and PT, the total of all other types of WC together cannot exceed 500 weeks per injury.
TT: Payments are made while the worker is temporarily unable to perform any work. It is based on 2/3 of the worker’s gross average weekly wage and may continue for up to 500 weeks.
TP: This is paid when the injured worker cannot return to regular work and is given a light duty job at a lower wage. TP is paid at 2/3 of the difference between the worker’s wages before and after his injury. The period of payment awarded may be extended if the worker is still disabled within 1 year of final payment, but TP is limited to 500 weeks.
PT: These payments are based on 2/3 of the worker’s gross average weekly wage and continue for the duration of the disability. PT is paid after TT but can be concurrent with PP. PT may be awarded if the worker lost both his hands, arms, feet, legs, eyes (or any two in the same accident), or is paralyzed or disabled from a severe brain injury. Certain cases of coal worker's pneumoconiosis also qualify for PT.
PP (Specific Disability):
Disfigurement: VA pays disfigurement benefits, but only when resulting from an injury not otherwise compensated as a Scheduled Award. They are based on 2/3 of worker’s average weekly wage for a maximum of 60 weeks.
Scheduled PP for a Specific Loss: These Scheduled Awards are paid for the loss of (or loss of use of) a certain body part. This PP is paid in addition to TT benefits starting upon termination of the TT benefits. Scheduled awards are NOT reduced because of receipt of TT benefits. PP can be paid simultaneously with TP, but each combined payment then counts as 2 weeks against the total maximum allowable period of 500 weeks.
LS Payments: Liability for compensation may be redeemed, in whole or in part, through payment by the employer of a lump sum when the parties agree and the Commission deems it to be to their best interests. The lump sum must be approved by the Commission in order to be binding.
B. Cost-of-Living Adjustments (COLA)
There is a state chart that gives the yearly WC COLA percentages. See ‘Exhibits’, below.
Who gets COLAs? Only individuals receiving TT or PT benefits are entitled to cost of living increases.
What are the rules for COLAs? Cost of living increases must be specifically requested by the worker. Also, a worker is only eligible to receive a COLA if the combination of his WC and Social Security benefits is less than a certain limit set by VA WC regulations. Because of this, beneficiaries often stop receiving COLAs once we process our DIB award.
Do we offset for COLAs? YES. Make adjustments in the amount of offset with the COLA effective date. In the past, we treated Virginia COLA increases as reverse offset. However, OGC determined in 05/1996 that Virginia’s COLAs were not paid under a recognized reverse offset plan and therefore should NOT be treated as reverse offset. No formal change of position was made; it was just decided that our earlier procedure was erroneous. Based on this decision, use the full periodic benefit, including the COLA increase, for WC offset computation purposes. If the resulting calculation yields a benefit payment amount lower than the prior computation AND we can determine that the difference is due to the prior treatment of the COLA as reverse offset, consider reopening only as allowed under the rules of administrative finality. Follow GN 04010.020, Reopenings -- Errors on the Face of the Evidence.
When are COLAs due? COLAs are effective October 1st of each year if the date of the accident was prior to July 1st of that year and if the worker is entitled to them.
NOTE: The VA WC Board does not keep track of WC COLAs. If you request information from the VA WC Board they may only report the original base rate. You must contact the insurance carrier to ascertain if the beneficiary received any COLAs.
C. Attorney fees
Attorney fees for claimants are approved by the agency on a case-by-case basis. In certain cases, the attorney fee may be added to a WC award. Only attorneys are allowed to charge fees.
D. Retirement insurance benefit (RIB) considerations
VA does not offset WC for receipt of RIB.
E. Time limitations for filing claims
Initial claim: An injured worker must file a claim with the WC Commission within 2 years from the date of the accident or any right to benefits may be lost. Claims for an occupational disease must be filed within 2 years from the date the doctor tells the employee the disease is work related, or 5 years from the date the employee was last exposed to the work condition causing the disease, whichever is sooner. (Certain diseases, such as coal workers' pneumoconiosis have different limitation periods.)
Relapse: If after returning to work the worker is again disabled, he must file a claim for TP, TT, or PT within 2 years of the date for which he was last paid compensation under an award. (This is called a "change in condition.") Payment only goes back 90 days from the date of filing with the Commission. However, if the claim is for PP the worker has 3 years from the last date for which he was entitled to compensation paid under an award.
F. Verifying WC
Generally, it is easy to get basic WC information from the State. Call the Virginia WC Board at 1-877-664-2566. Although they may not disclose payment information over the phone, they will usually provide the insurance carrier’s name, address, and phone number. If they refuse to disclose any information by phone, fax them at 804-367-9740. However, see the ‘note’ in section DI 52120.255B. above regarding contacting the carrier for proof of COLA increases.
G. WC Forms
1. COLA/Social Security Verification Request (VWC Form No. CA51):
This form must be filed by the worker in order to apply for a WC COLA. Questions 1 & 2 on the form must be completed by SSA, and it must be signed by us as well.
2. Agreement to Pay Benefits (VWC Form No. 4):
This form is completed whenever a claim been accepted as compensable and the injured worker is entitled to an award. The Agreement to Pay Benefits provides the basis for the initial award of compensation, and contains sufficient information to establish the essential elements of a compensable claim.
3. Supplemental Agreement to Pay Benefits (VWC Form No. 4A):
This form is filed for subsequent periods of WC. If additional CONSECUTIVE periods of temporary partial disability occur, a VWC Form No. 4G may be filed instead of this form.
4. Supplemental Agreement to Pay Varying Temporary Partial Benefits Request Form (VWC Form No. 4G):
This form is completed whenever additional consecutive periods of TP occur. If the periods are not consecutive, a VWC Form No. 4A is filed instead.
5. Agreement for the Settlement of an Award in a Lump Sum or Partial Lump Sum (VWC Form No. 12A):
This form is filed and completed by the worker when requesting the payment of a Permanent Partial Disability Award in a Lump Sum or Partial Lump Sum. The worker’s injuries must have stabilized and be permanent. The filing of this form with the Virginia Workers’ Compensation Commission is a requirement under §65.2-522.
6. Termination of Wage Loss Award (VWC Form No. 46):
This form is completed when the worker returns (or was able to return) to regular or light-duty employment. This form should reflect WC payments and COLA adjustments that were paid (there should be a detailed summary of payments for each period of disability in the space reserved for use by the insurer or employer at the bottom of the form). However, note that the employer is not required to report payments that had been previously reported. When reporting multiple periods of compensation that are not consecutive, a separate Termination of Wage Loss Award form should have been filed for each period.