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Do I need a Lawyer for my Virginia Workers' Compensation Case? Or should I go it alone?

The workers’ compensation attorneys at our firm review new Opinions issued by the Virginia Workers’ Compensation Commission on a regular basis. In the process of reviewing those cases, it has become increasingly clear to me that, despite all the pitfalls associated with doing so, the majority of injured workers still prefer to handle their workers’ compensation claims without an attorney. Certainly, every worker has the right to do that, but I would like to briefly address in this article some thoughts on whether that is the best route to take when you are injured.

At the outset, it is important to note that when the workers’ compensation laws were originally enacted, the idea was to have a no fault system of providing guaranteed benefits to injured workers while at the same time limiting the liability of employers for those injuries. The employer would have to pay for a percentage of wage loss for limited periods of time and pay medical bills related to the injury, all so long as certain basic requirements were met on the part of the worker. As for the handling of claims, that was generally supposed to take place within a relatively non-adversarial administrative system through the Virginia Workers’ Compensation Commission. While laudable in theory, my opinion is that the workers’ compensation system today - in practice - is much different.

In today’s working world, the vast majority of employers carry workers’ compensation insurance to pay for any work injuries. At the same time, insurance is about risk, and workers are at times going to get hurt even in a relatively safe work environment, especially in physically demanding jobs. Thus, the goal of the insurance company is to set premiums and handle claims in such a way that they are able to pay claims and still generate profit. As in any business, however, the more profit, the better, so in most cases the carriers are willing to take certain steps to try and minimize the amount of money they have to pay out on claims. Thus, they will spend money on medical examinations, nurse case managers, vocational rehabilitation specialists, and attorneys, as they are entitled to, taking those steps as much in an effort to get the worker back to some kind of work as to seize any potential defenses that may arise from those actions.

Now there is nothing impermissible in those steps. However, when faced with that approach, it is best for the injured worker to know his or her rights and how to exercise those rights, and to know what the employer and carrier can and cannot do with regard to the injury, their medical treatment, their job, and there future. Having an attorney to address those issues is invaluable.

Having handled a large number of workers’ compensation claims and assisted various injured workers, it appears to me that there are essentially three perceived "cons" to hiring an attorney in a workers’ compensation claim. The first is the desire on most people’s part not to make waves with their employer. They don’t want to be looked at as money hungry, a complainer, or someone who causes trouble. The second - related to the first - is that they fear hiring a lawyer will effect their job security; in other words that they will get fired if they file a claim and hire a lawyer to help them do so (a fear which exists even though the Act specifically provides that a worker cannot be fired based solely on his filing of a workers’ compensation claim). The third is financial - they know that attorneys in general can be expensive and they don’t feel they can afford it.

As for the first two, they are in my view related to a negative public perception of workers’ compensation injuries and claims in general. At the same time, any such perception is not well founded. In that regard, the mere mention of the term "workers’ compensation" can arouse some pretty strong feeling on the part of many, many people. Yet as much as the laws were designed to help injured workers, they benefit employers as much or more. In Virginia, an employer can’t get sued by his employee outside of the workers’ compensation system - period - even if their negligence caused the injury and the worker was in no way at fault. Thus, even if the owner of the company drops a pallet on a worker and that worker loses his leg as a direct result of the employer’s negligence, he can’t sue that employer for personal injury, including pain, suffering, and inconvenience, if that injury falls under the Virginia Workers’ Compensation Act. The employer’s liability is then strictly limited under the Act.

Further, people don’t ask to get hurt. In my experience, the overwhelming majority of people I have seen and met want to work, and they work hard. They don’t want to be hurt, they want to provide for themselves and their family. Thus, even when they do get hurt, many people will continue to work or, if they miss time from work, will do what they can to get back to work as soon as possible.

In addition, despite the fact that the employer doesn’t have to advise an injured worker of their rights, and despite the fact that decisions on payment of claims generally are made by the workers’ compensation insurance carrier rather than the employer, workers like to believe that since they were hurt on the job, the employer will make sure they receive the benefits to which they are entitled. Thus, they may not do what they need to do to protect themselves.

The point is basically that the system was designed as much for the employer’s benefit as for the worker’s, and the benefits available under the Act should be pursued because they are your right as a matter of law when you are injured. Moreover, employers, through their workers’ compensation insurance carriers, take the necessary steps on their end to limit benefits. Thus, workers need to take necessary steps to inform themselves regarding their rights under the Act and to pursue those rights accordingly.

In the end, people do not get rich off of workers’ compensation benefits. They survive. At the same time, if approached properly, an injured worker can exercise his rights, maximize his recovery, and put himself in the best possible position for the future, in spite of the injury. Having an attorney who handles these types of cases on a regular basis - and who fights to maximize the workers’ compensation benefits and settlements of his clients - is the best way to insure your rights are protected when you get hurt at work.

As for the final issue, that of attorneys’ fees, we generally don’t get paid a fee unless we are successful in getting some benefit for you, and the fees are generally limited to 15 to 20% of your recovery. Along those lines, while costs are always the responsibility of the claimant, our fees are ultimately determined by the Virginia Workers’ Compensation Commission. Given the benefits we are generally able to obtain, and the fact that we defend efforts of employers and carriers to terminate or minimize benefit payments on a regular basis, we generally feel that the fees and costs associated with having an attorney involved are far outweighed by the benefits of doing so.

Whether you use our firm or not, our feeling is that under the workers’ compensation system as currently practiced, an attorney is an indispensable tool for protecting your rights and benefits. At the same time, our firm has been in business for over 40 years, and we feel our attorneys are among the best in the business. Thus, feel free to contact us in the event you are injured and wish to discuss potential representation in your pursuit of workers’ compensation benefits.

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