An interview with Virginia Worker's Compensation Attorney Michele Lewane-the First Steps
Recently, Ben Glass interviewed Virginia Worker's Compensation Attorney Michele Lewain. In Ben's opinion, Michele, the author of a terrific consumer book on worker's compensation, is one of the top worker's compensation attorneys in Virginia. What follows is an excerpt from that interview. For more information about Virginia Worker's Compensation, visit attorney Michele Lewain's website and make sure you order her book.
Ben: So, it sounds like it’s not the easy sort of system that maybe it was envisioned to be a hundred years ago. Let’s talk about this. Let’s say that there’s a worker in Virginia who believes that he or she has been injured on the job. What do they first? Do they fill out a form, do they call a lawyer, do they talk to their employer, how does that work?
Michele: The first thing would be ideally to make sure there are some witnesses. Okay. One law is that you have to give your employer notice within 30 days of the accident; however, many employers have handouts that say they want notification within 24 hours and they’ll automatically deny you. You’ll eventually win through a long litigation process. So, the first thing is to immediately notify your employer. Another thing is to try to – and this is so hard when you’re – obviously you’re hurt and you don’t – you know, let’s say you slipped and fell at work, all right. Most people think, is this covered, and you know, you’re embarrassed that you slipped and fell at work and you know you broke your ankle. Well, the reality is there has to be something unique to the job which caused you to break your ankle. So, if you just slipped and fell for no reason, then it’s not going to be covered. If you slipped and fell because there was some water on the floor, it would be covered. So, what happens is you have to be very aware of your environment at the time of the incident so that you can be able to say, you know, what at work caused this accident.
Ben: So, it sounds like it actually is much more complicated than simply I showed up for work some time during that 8 or 10 hours I worked, I got hurt, therefore, I should be compensated. There really are…
Michele: Correct.
Ben: …I guess the battles between your side and the insurance company’s side in these cases.
Michele: Yes and that’s a great one as well. Repetitive injuries aren’t covered. So, if you lift three buckets of paint and at the end, you have a herniated disc in your back, it’s not going to be covered, but if at the time, you felt a pull or twinge during the second lifting of a bucket, then it would be covered. So, most people have various physical jobs and you have aches and pains and you think they’re going to go away. So, it’s something that you do need to clearly remember of what caused it. Well, was it with that second bucket.
Ben: Okay. So, you alerted us to the 30-day and sometimes shorter, and that’s pretty scary, sometimes shorter notice requirement. What happens next? So the employee E has handed in his notice to let the employer know, you know, he’s claiming a work-related injury. Walk us through the process. Well, what should happen at that time is that first reported accident should be filled out and ideally, they would get a copy of it, so they know exactly what the employer is writing down as to how the accident occurred because again, if it’s too general even in this form, you’re looking for a denial. Again, you might win eventually, but you’ll go into this long litigation process for no reason. What would happen is that get it sent to the insurance adjuster and the insurance adjuster will be calling the injured worker and getting a recorded statement, trying to find out about, you know, prior work injuries, trying to find out if you can actually articulate why you fell and usually within two to three weeks from that date, you’ll get a letter saying from them whether they have accepted or denied your claim.
Michele: Now, one unique thing about workers’ comp is that the injured worker has the burden of proof, which means you have to prove everything all along the way. So, ideally, you should kind of have a journal, write down the names of any witnesses. Write down when you talk to people because six months, nine months down the road, you might not recall those things. Also, the types of feelings that you’re having because like if you hurt your neck, you might think you didn’t hurt your shoulder but because you’re on pain medication, that you don’t feel the pain in your shoulder, so you kind of need to articulate in a journal, okay, this was when my neck started hurting, this was when my shoulder started hurting, to get the proper treatment for all the injuries that occurred. The next thing that happened is that the injured worker will get a form from the Virginia Workers’ Compensation commission and that is the state agency that runs the workers’ compensation in Virginia and a good analogy would be to think about it as a triangle. You have the – at the top of the pyramid, you have the workers’ comp commission and they are supposed to make sure everything is going correctly and then on one side, you now have the injured worker and the attorney and on the other side, it’s really the insurance company and then a little bit to the side is the employer because the employer will support the insurance company but it’s really the insurance company making these decisions, not the employer. And so, if there’s a conflict between the two, you go to the commission.
Now, that, to what I originally said with the issue of burden of proof, is the insurance company will start making voluntary payments and you think everything is fine, but there’s a two-year statute of limitations where you are supposed to file what’s called a claim for benefits with the commission and if that is not done, this statute of limitations has run and all of the sudden, these voluntary payments will stop and you don’t know why and it’s obviously because the statute of limitations has run. In insurance company, it is very adversarial because they don’t have a duty to tell you anything, your obligations or your benefits.
Ben Glass Recommends: Worker's Compensation Attorney Michele Lewane. BenGlassLaw refers cases to and highly recomends attorney Michele Lewane. Michele is the author of The Ultimate Guide to Workers’ Compensation in Virginia: Everything You Need to Know if You Get Hurt on the Job.
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