Landau Injury Law

Since 2008, the Virginia courts have ruled repeatedly against the injured worker on the issue of “marketing.”  Herndon’s injured workers lawyer Doug Landau frequently hears from claimants (and so-called personal injury attorneys) who are baffled by this requirement under Virginia law.  What is “marketing” in the context of the Virginia Workers Compensation Act ?  It is simply an injured worker’s good faith effort to look for work that they CAN do, despite their injuries or disability.  In National Linen Serv. v. McGuinn (Virginia Court of Appeals, 1989), a case I had argued an appeal on, the appellate court discussed a CLAIMANT’S DUTY TO MARKET HIS RESIDUAL CAPACITY:

“Where an employee’s disability is partial, to establish his entitlement to benefits, he must prove that he made a reasonable effort to market his residual work capacity.”  In determining whether the employee has met his burden of proof, the [Virginia Workers Compensation] Commission should consider the following:

• (1) the nature and extent of [the] employee’s disability;
• (2) the employee’s training, age, experience, and education;
• (3) the nature and extent of [the] employee’s job search;
•  (4) the employee’s intent in conducting his job search;
• (5) the availability of jobs in the area suitable for the employee, considering his disability; and
• (6) any other matter affecting [the] employee’s capacity to find suitable employment.

In posts over the next fortnight, we will discuss these requirements in more detail.

VIRGINIA LAWYERS WEEKLY Editor in Chief Paul Fletcher and Workers Comp attorney Doug Landau of the Herndon law firm ABRAMS LANDAU, discussing the Mediation of a workplace lifetime disability injury case

While any lawyer can ask for and participate in the free Mediation offered by the Virginia Workers Compensation Commission, it takes time, effort, experience and money to be properly prepared to Mediate a permanent injury or total disability case. The best Virginia Workers Compensation lawyers in Virginia come prepared with their own settlement evaluation and have discussed the issues thoroughly with their clients, and others who have a stake in the outcome of the case. Poorly prepared lawyers, attorneys who try cases “on the cheap,” and the volume law firms rarely invest the time and resources to be fully prepared to Mediate permanent disability and catastrophic workplace injury claims.

The best Virginia workers comp lawyers go into Mediation committed to negotiating in good faith. They know the range of values of the case and have had experience with similar cases in Mediation and at trial. The data that is usually assembled well before the week of the Mediation include:

1. The compensation rate
2. The average pre-injury weekly wage
3. The weeks left under the Award
4. Permanency rating(s)
5. Partial Disability rates
6. Present day values
7. Current Medical Status
8. Average Monthly Cost to date
9. Anticipated future care ross
10. Medications, mileage, DME and other reimbursements
11. Statutory Life Expectancy
12. Age-Rated Life Expectancy
13. Present Value of Medical Care, RX, DME, mileage reimbursements, etc.
14. Likelihood of payments, due to (more…)

Why not ? Mediating workers compensation cases has many advantages in terms of time, costs and certainty according to Virginia workplace injury lawyer Doug Landau of the Herndon law firm ABRAMS LANDAU, Ltd. Although there is no guarantee that an on the job accident case will settle at Mediation, the advantages include:

1. Litigation costs are reduced
2. Mediation through the Virginia Workers Compensation Commission is free of charge
3. Disputes are resolved quickly and confidentially
4. There are no lengthy, time-consuming appeals
5. Mediation can be requested at any time during the life of an on the job injury case
6. Any party can request Mediation to resolve a dispute or negotiate a compromise settlement
7. Parties retain the right to a Hearing before a workers comp judge if a dispute is not resolved through mediation
8. A follow up Mediation session, either in person or by conference call, can be scheduled
9. Mediations are held throughout the state of Virginia to accommodate the needs of the parties
10. Mediations are usually conducted by Deputy Commissioners who have been certified by the Supreme Court of Virginia to mediate on the job injury and disability cases
11. Mediations are usually involve the in-person meeting of the parties, as opposed to trying to negotiate over the phone or via e-mail or fax

According to the VWC statistics, approximately 80% of the disputed claims mediated by the Commissioner were resolved. At the Herndon law firm ABRAMS LANDAU, our own experience is that most cases do in fact settle at Mediation. If you or someone you know or care for has been injured on the job as the result of a car, truck, bicycle or motorcycle crash or slip and fall or dog bite attack and there are questions about Mediating or settling the claim, e-mail or call us at ABRAMS LANDAU, Ltd. (703-796-9555) at once.

Doug Landau of the Herndon law firm ABRAMS LANDAU and clients after Mediation in Richmond Virginia

As Deputy Commissioner Blevins pointed out in a recent presentation, successful Mediation depends on the parties’ willingness to negotiate in good faith towards a workable solution. This solution can be an agreement as to particular problems in the claim (like who will be the treating doctors) or settlement of the entire case. One of the other aspects of Mediation that many injured workers and their families do not understand is that the process is confidential. In other words, materials and communications during Mediation are not subject to disclosure in discovery or in any judicial or administrative proceeding, with limited exceptions. The purpose of Mediation is to identify the issues, clarify any misunderstandings, explore solutions and alternatives for resolution, and negotiate an agreement.

While the majority of the Virginia Workers Compensation Commission Mediations are scheduled for the purpose of reaching a full andy final settlement of the claim, almost any issue can be mediated. Plus, adds Herndon workplace injury lawyer Doug Landau, solutions outside of the workers compensation claim may be reached, such as “Global Settlements” where there is an on-the-job car crash or slip & fall case. Issues outside of the Workers Compensation Act that have been resolved in Mediations handled by the Herndon law firm ABRAMS LANDAU, Ltd., have included: Long Term Disability insurance coverage; repayment of the workers comp lien; Social Security Disability, sick, vacation and holiday leave repayment; subsequent claims; voluntary resignation; retirement; return of work equipment; and other issues to numerous to list here. If you or someone you know or care for has been injured on the job as the result of a car, truck, bicycle or motorcycle crash or slip and fall or dog bite attack and there are questions about what laws apply, e-mail or call us at ABRAMS LANDAU, Ltd. (703-796-9555) at once.

Just as in dating, sometimes the date you start with is not the one you end up with !

Herndon Social Security lawyer Doug Landau (shown in front of the Washington DC hearing Office) & his clients will "amend the onset date" of their disability in order to secure a favorable decision from an ALJ (Administrative Law Judge)

Unrepresented Social Security Disability claimants often pick a “date of onset” for their disability on their original applications that lead to denial after denial by the Federal Government.  While a disabled workers may have stopped working on a particular day due to an on the job injury or occupational disease, that date may not be supported by the objective medical evidence.  Just because a wage earner stops working on “date X,” does not mean that the Social Security Administration will find that they should receive Disability Income benefits from that date.  The rules for getting Federal Disability benefits are quite strict.

At the Herndon law firm ABRAMS LANDAU, we see Fairfax, Loudoun and Prince William families who have been denied Social Security despite what appear to be debilitating injuries.  Sometimes the medical conditions that disable our clients from working become totaling disabling months and even years after they stop working.  In these cases, when we get the case before an Administrative Law Judge (“ALJ”), our investigation (more…)

Herndon Virginia workers comp lawyer Doug Landau shares consumer group concern over the proposed Medco and Express Scripts merger, as the new giant pharmacy benefits manager could restrict the access to new drugs and give even more control to Virginia workers compensation insurance companies over injured workers and their families

If a proposed merger between Medco Health Solutions, Inc. and Express Scripts takes place, consumer groups fear that patients’ choices would be restricted and costs of medicine would be increased.  The proposed merger of two of the three largest pharmacy-benefit managers (“PBMs”) is the subject of a U.S. House antitrust subcommittee hearing. The hearing will examine the merger’s likely effect on PBM competition and health-care costs.  Five consumer-advocacy groups sent a joint letter to the U.S. Federal Trade Commission.  The consumer groups are: Consumers Union—the publisher of Consumer Reports—as well as Consumer Federation of America, National Consumers League, U.S. Public Interest Research Groups and the National Legislative Association on Prescription Drug Prices.

The groups want the government to examine the merger’s likely effect on PBM competition and health-care costs according to the Wall Street Journal.  A combined Express Scripts-Medco would “substantially” reduce competition, giving the merged company an “incredible dominance” of the fast-growing specialty pharmacy market, according to the letter.  A merger could also (more…)

Another successful Social Security Disability Hearing for a happy family in Washington, D.C. Herndon Virginia disability lawyer Doug Landau "holding the bag" for his client after presenting this Texan's case to the Federal Government's Administrative Law Judge this month

The Social Security Administration has released the new numbers for 2012. The Federal Government’s disability program has increased the amounts necessary for work determinations, the payments for Supplemental Income and the maximum taxable earnings. Earnings of less than $12,120 per year may not be viewed as “substantial” such that a wage earner would be deemed ineligible for monthly Federal disability payments.

Of significance to the Reston Herndon Social Security Disability law firm ABRAMS LANDAU, was the the amount necessary for “Substantial Gainful Activity” (or “SGA”). SGA is essentially work for pay, as opposed to interest earned on a bank account, lottery winnings, investments, sheltered workshop pay or stock or other investment income. SGA has been increased to $1010/month, up from $1,000 in 2011. (more…)

It does not matter who is behind the wheel, reasonable transportation expenses are reimbursed by the Virginia Workers Compensation Insurance Companies when such travel is in connection with medical care that satisfies the “three Rs” (Reasonable, Related and by Referral).  A call to the Herndon law Firm ABRAMS LANDAU repeated this often heard question.  In order to be reimbursed for trips to the doctor, physical therapist, hospital, radiologist, etc., it does not matter if:

• Your daughter, son, wife or parents drove you,
• You took a cab because you could not drive,
• An old friend gave you a lift in his vintage mustang,
• You hopped the local bus (or two) and then the Metro,
• A car service was required because there is no public transit nearby,
• The Medical services building charges you for parking,
• There are toll roads along the way to the therapist’s office,

As long as you have the receipts for the taxi, bus, subway, parking, tolls and other travel related expenses.  If you go to a health care provider for treatment, then such expenditures may be covered under your Workers Compensation Award.  For use of your own car (whether or not you were driving, as many ABRAMS LANDAU client cannot drive themselves to their medical appointments because of the severity of their injuries), mapquest or the mileage on the odometer can be summated for payment.  In cases where the injured or disabled worker cannot drive and has no one to take them, cab fare or car service may be reasonable under the circumstances.  In some permanent total disability cases, the insurance companies have paid for car service, limousines and taxi cabs to shuttle our clients to their necessary medical appointments.  Bottom line: keep the receipts and good written records for full reimbursement !

Clients suffering from hip, shoulder, knee and arthritis pain should try to learn as much as possible about their condition in order to get as healthy as possible after an on the job accident or car crash.  You can ask the joint replacement experts of the INOVA Joint Replacement Center (“IJRC”) about relief from arthritis, repair of damaged bones and painful inactivity.  Surgical joint replacement, with minimally invasive techniques may be the solution to your disability, pain and osteoarthritis.  IJRC is the largest joint replacement center in the metro-Washington DC area, performing over 2,000 joint replacements annually.  With the latest techniques and medical equipment, patients are returning to more active lifestyles.  Herndon joint injury lawyer Doug Landau has attended past programs, along with ABRAMS LANDAU staff, and new insights are always gained and tough questions are always answered.  While knee, hip and shoulder joint replacement surgery is not for everyone, workers compensation and disability lawyer Landau has seen friends, family members and clients make wonderful recoveries as the result of such operations.

A FREE Community Seminar on Osteoarthritis and Joint Replacement Advances will be held with Drs. Kevin Fricka and William Hamilton:

• Date:     Wednesday, April 13, 2011
• Time:     7:00 PM – 8:00 PM
• Address: Workhouse Arts Center, 9601 Ox Road, Lorton, VA 22079
• Contact Phone:     (855) 694-6682
• Free parking available in the rear of the building.

Inova Health System is pleased to present our “Ask the Expert” community lecture series. All lectures are free, but advance registration is requested.  Register online or call 855-MY-INOVA (855-694-6682).

How much can I expect to get each week if I am injured on the job in Virginia ?  That is a question frequently asked of on the job accident lawyer Doug Landau of the Herndon law firm ABRAMS LANDAU.  Each year the Virginia Legislature establishes a minimum and a maximum compensation rate for injured workers under the Workers Compensation Act.  Weekly wage loss benefits for disabled employees is supposed to be 2/3rds of their average weekly gross wages (before taxes and deductions).  However, for those employees in the Commonwealth who earn a lot of money, their comp rate may be only 50% or less of their pre-injury wages.  The minimum and maximum comp rates  (more…)