Can I Get Workers' Compensation for this in Virginia or Will My Claim be Denied?

Mental Stress: Can I Get Workers' Compensation for this in Virginia or Will My Claim be Denied?

In my 30 years of practice as a Virginia Workers' Compensation Lawyer, I have had many claimants contact me and say my work or my supervisor is causing me mental stress. Many times these claimants have gone to a psychiatrist or a psychologist for treatment. Often, the impairment has become so severe they have been taken out of work. They want to know can they be compensated for their lost time through the Virginia Workers' Compensation system. They say (1) my stress happened at work and (2) my doctors say I have lost time and incurred medical bills due to this stress. They say why cannot I be compensated under the workers' compensation law?

The short answer is "NO" as a general rule mental stress is not compensable. Gradual infliction of mental stress by your work or by your supervisor is not an "accident" or a "disease" under the Virginia Workers' Compensation law. As defined by the Workers' Compensation Commission, an "accident" to be compensable must occur at a specific time and thus gradually occurring mental stress cannot qualify as an accident. It is also not an occupational disease unless it can be shown that mental stress is "characteristic" of only that employment which is normally an impossible burden. The Commission has said in the past problems associated with personnel and management are inherent in all employment.

The first exception to the above rule is if the claimant's work is in a particularly high stress occupation it is possible for a claimant to show his or her "mental stress" is characteristic of the employment. For example, the Commission has found an emergency dispatcher was employed in an occupation where stress was characteristic of the employment.

The second exception to this rule is if the claimant has a compensable "accident" or "disease" that aggravates or causes mental stress or depression then the aggravation may be compensable. The typical example of this is the worker who has a severe injury which results in chronic pain. The pain causes depression. In that instance, the depression will compensable. Of course, the treating physician must make the connection between the accident and the stress.

A third exception to the general rule that mental stress is not compensable is if the mental stress arises out of a single specific incident. A typical example of this would be the rescue squad worker who has to go to the scene of a horrible accident and develops a mental impairment due to the exposure to the accident. I had a case involving a school bus driver who had a student point a gun at her head and pull the trigger. The gun was not loaded but the driver developed a post traumatic stress disorder as a result of the incident and the Commission found her claim to be compensable.

In summary, even though your boss has treated you badly, harassed you and has made you go to a doctor and lose time from work, your mental stress is not compensable under the Virginia Workers' Compensation Act. Also, even though you have deadlines to meet which has caused you stress, it is not compensable in Virginia. Nonetheless, you should always check with an experienced Virginia workers' compensation attorney. Your problem may meet one of the exceptions I have listed above.

Virginia Workers Compensation Denied: The Important Questions

Virginia Workers Compensation Denied: The Important Questions

If your comp claim was denied for Virginia Worker's Compensation, then as an injured worker there are some questions you need to ask about the denial of your claim. The insurance company letter will typically say your work place injury & accident is "not compensable" under the Virginia Workers' Compensation Act. You need to ask yourself the following questions:

1. Did you injure yourself in a specific accident or was it a gradually occurring problem (such as tendinitis)?

2. Did you report it to a supervisor immediately and was an Accident Report filled out the day of the accident or at least within two to three days after the accident?

3. Did you immediately go to a doctor or an emergency room that day or at least the following day?

4. If you slipped and fell at work, do you know what caused the fall such as water on the floor, a slippery carpet, etc.?

5. Was there a witness who can confirm your accident and is he or she willing to come forward?

6. Were you under the influence of any drug such as marijuana, cocaine or alcohol at the time of your accident (Many employers will give an injured employee a drug test)?

7. Were you doing a work activity at the time of the accident or were you on a personal mission or errand?

8. Were you the victim of horseplay by a fellow employee?

9. Were you the victim of a personal assault by a fellow employee or someone else who was a stranger to the employment?

10. Did your injury occur as a result of an ordinary activity such as bending, stooping, reaching, etc.?

11. Did you injury occur as the result of a fight with a co-worker or your boss?

12. If you fell on a stairs, did you slip as the result of poor lighting, water on the stairs, other substance on the stairs, bad carpet, etc.

If your denial involves any of the above circumstances, then you should not talk to the insurance company but rather you should talk immediately to an attorney who specializes in Virginia Workers' Compensation. You can check my article, "How to Choose the Best Virginia Workers Compensation Attorney." Knowledge of your problem is your best weapon.

Copyright© 2006, Jerry Lutkenhaus. ALL RIGHTS RESERVED

This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Workers At Risk For Asbestos Diseases Should Seek Periodic Medical Check-Ups

Workers At Risk For Asbestos Diseases Should Seek Periodic Medical Check-Ups

Individuals who have been exposed to asbestos in Virginia should be checked periodically for asbestos-related diseases. Those who worked in the armed forces, Virginia refineries, chemical plants, auto factories and shipyards before the 1980s should tell their doctors about their potential history of asbestos exposure. Early detection is vital in many cases of asbestos-related diseases, as even lung cancers have a better prognosis when caught early.

Primarily caused by asbestos exposure, asbestosis is a scarring of the lower lobes of the lungs. Virginia workers who were employed in high-risk industries, including ship building, automotive repair and mining, should be particularly wary of developing asbestosis and other asbestos-related diseases. At-risk workers in Virginia who have a history of asbestos exposure should see their doctors for periodic asbestosis screenings. To detect asbestosis, the physician will take an x-ray of the lungs, which will be read by a certified radiologist. This diagnostic tool can establish whether the individual has any lung scarring associated with asbestos exposure. Although asbestosis is not cancerous, it can become progressive and may require the patient to depend on inhalers. Patients who have been diagnosed with asbestosis should be monitored with regular x-rays and lung function tests to track the progression of the disease.

Patients with a history of asbestos exposure should be screened for lung cancer and mesothelioma, a deadly cancer of the mesothelium. To check for cancers of the lungs, the doctor will listen to the patient's breathing with a stethoscope to detect any strange noises. For instance, a doctor may hear a dull sound when tapping on the chest of a patient with fluid buildup in the lungs. When screening for lung-related cancers, the doctor may also check the patient's legs for swelling and fingers for clubbing. These symptoms may indicate that there is a problem with the lungs.

After performing a physical exam, the doctor may order a chest x-ray to check for suspicious masses, fluid or tissue thickening. A chest x-ray of a patient with lung cancer may display abnormal fluid or masses, while an x-ray of a mesothelioma patient would show pleural thickening. Should the x-ray show any abnormalities, the patient would be sent to a specialist for further evaluation. Although an x-ray can show signs of lung cancer and mesothelioma, a diagnosis of these asbestos-related diseases can only be made through a tissue biopsy.

When visiting a doctor for a check-up, at-risk Virginia workers should be honest about their past to ensure the proper screening and diagnostic tests are utilized. The doctor will typically ask about the patient's history of asbestos exposure and previous jobs. He or she may also inquire about the work history of the patient's family members, as asbestos fibers could have been carried home on the clothes, skin and hair of those exposed to the mineral. Lastly, the doctor may ask whether the patient is experiencing any symptoms related to asbestos-related diseases, such as shortness of breath or coughing.

Asbestos is a mineral that was widely used due to its heat resistance and insulating properties. Individuals working with the mineral on a daily basis are particularly at-risk for developing asbestos-related illnesses, although symptoms of these diseases may not appear for several decades. Because of the latency period of asbestos-related diseases, individuals who worked in the armed forces, Virginia shipyards, oil refineries, steel mills, railroads or power plants should see their doctor for a check-up.

Fired After A Workers' Compensation Accident In Virginia

Fired After A Workers' Compensation Accident In Virginia - Five Tips You Can Use

You have been "fired" by your employer. You had an accident on the job. You feel this is not right. This is the basic knowledge you need to know.

1. If you fired as a retaliation for filing an injury claim, you have a right under Virginia Law (Section 65.2-308 of the Code of Virginia) to sue your employer. You can recover actual damages and attorney's fees in this type of lawsuit. You may have to contact a "wrongful discharge attorney" who specializes in employment law.

2. If you are fired because you tested positive for drugs or alcohol at the time of the accident, you need to contact an experienced workers compensation attorney. The employer may have a right to fire you for a violation of its anti-drug policy but you still may be able to receive workers' compensation if the drugs or alcohol did not "cause" the accident. The attorney may be able to show by a pathologist your drug or alcohol level was not the "cause" of the accident.

3. If you are fired after you return to work after an accident and are placed on light duty, you may lose your workers' compensation benefits if the employer can show you were fired for misconduct such as violation of a drug policy, absenteeism, insubordination, fighting, etc.

4. If you return to work with the same employer where you suffered your work injury, the employer may look for an excuse to fire you. Thus, you must be aware the employer may look for an legitimate reason to fire you when you return. Therefore, you must be extra careful that you do not give the employer a legitimate reason to terminate your employment such as absenteeism, tardiness, insubordination, fighting, etc.

5. If you are fired from your job and you still have work restrictions as a result of your on the job accident, you can file with the Virginia Workers' Compensation Commission to go back on workers' compensation benefits provided the termination of employment was not due to your own misconduct and provided you are within two (2) years of the last date you received workers' compensation benefits.

Summary, it is bad enough to be injured on the job. It can add "insult to your injury" if you are also fired as a result of your accident. There are certain things you need to know if this happens.

I have listed some "tips" about this scenario. The main thing to know if this happens is you should first consult an experienced workers' compensation attorney and then perhaps a wrongful discharge attorney.

This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Mesothelioma Class Action Lawsuit

Mesothelioma Class Action Lawsuit

In the 1970's the onslaught of Asbestos lawsuits began. The target of the class action lawsuits have been shipbuilders, manufacturers, mining companies and construction companies. Because many of these buildings/mines/ships still stand mesothelioma and of course mesothelioma class action lawsuits continue.Mesothelioma causes death so you would think that the reward should be substantial. But of course. In actuality the average reward is $1 million. A great trade for a life! Hundreds of cases can be in a class action lawsuit and a jury may grant a $100 million as a reward since it seems like a good punishment. What does $1 million do for someone whose life is ruined?

Well not much of course, BUT even less if they do not even get the whole $1 million. The average attorneys' fees have been 40% of the total reward. So, the victims life is ruined and he gets $600,000 but the lawyer gets $400,000 for redundant work. This would explain why the web is dominated by class action lawyers seeking new mesothelioma clients. One name added to a list that was already going to trial = $400,000 for the lawyer.

Findlaw.com actually states "If you are bound by the outcome of the class action, you can't bring your own mesothelioma case and you won't have direct control of the lawsuit (but for the ability to raise some objections about a proposed settlement or the amount of the attorney's fees). You are also more likely to receive a lower amount of damages when your claim is grouped with so many other victims of asbestos-related disease, as awards for mesothelioma claims are generally higher than asbestosis and other asbestos-related diseases.

With a mesothelioma claim, you are probably better off on your own. You have the ability to directly control your case, attorney fees, and potential damages. But you will also have to hire and pay for your own lawyer and you won't share in any benefits received in the mesothelioma lawsuit class action."