FEAR OF REINJURY AT WORK UNDER VIRGINIA WORKERS’ COMPENSATION

Returning to work after an injury can be stressful, even with workers’ compensation benefits in place. It is not uncommon for injured employees to feel scared or anxious about going back to work after an accident.    

One of the main reasons injured employees may be hesitant to return to work is the fear of re-injury. For example, many of my clients feel that their employer did not take enough precautions to prevent the first accident, and therefore, the same thing could happen again. 

Injured employees are often also scared of being treated differently by their employers or coworkers. Some of my clients worry that they will be viewed as a liability or an inconvenience, leading to a strained work environment, especially when they are returning to work with restrictions from their doctor. 

Additionally, injured employees who are returning to their jobs with work restrictions often fear that their employers will not honor the restrictions and place them at risk of reinjury. 

If you have been injured in a work accident and are scared or anxious about returning to work, you may be able to remain out of work until you are mentally ready. However, you will need the following evidence to meet your burden of proof:   

1. A medical diagnosis of anxiety or other psychological disorder.

Testifying that you feel anxious is not enough to meet your burden of proof under Virginia law. You must have a documented diagnosis from a medical professional qualified under the law to diagnose.

2. A doctor’s note that the psychological injury is related to your work accident or related to the compensable physical injury(ies) you sustained in your work accident.

You must prove that your psychological injury is causally related to your work accident. Proving psychological injuries is more difficult than proving physical injuries, especially in situations where you have a diagnosis of the psychological condition before the accident, which is not uncommon.  

In Smith v. Fairfax Cnty. Sch. Board, VWC File No. 211-65-21 (Nov. 22, 2004), the Virginia Workers’ Compensation Commission held that a claimant’s psychological problems were related to her compensable shoulder injury and symptoms in part because of her “fear of reinjuring her shoulder in the context of unpredictable and uncontrolled behavior by the students who were responsible for her initial and subsequent injury.” 

In a recent hearing at the Deputy Commissioner level, my client suffered a compensable back injury. His orthopedic doctor released him back to work with light-duty restrictions, and he returned to work with those restrictions. At the hearing, my client testified that upon his return to work, his employer repeatedly questioned his medical limitations and asked him to perform work outside of his restrictions. He was eventually diagnosed with anxiety and his doctor related it to the pressure he felt from his employer to work outside of his restrictions, which could cause reinjury. 

The Deputy Commissioner cited the Smith case in his opinion and awarded my client lifetime medical benefits for anxiety as a compensable consequence of his compensable back injury. 

3. A work note from your doctor.

In the recent case I tried, my client’s doctor stated that he could not return to work for his pre-injury employer because of his anxiety. The Deputy Commissioner did not award my client wage loss benefits for these periods—he explained that the doctor did not take my client completely out of all work, and my client did not provide evidence of marketing his residual capacity.

4. You may need proof of marketing your residual capacity.

Under Virginia Workers’ Compensation law, there are two types of wage loss benefits: (a) Temporary Total Disability (“TTD”) and (b) Temporary Partial Disability (“TPD”). You may be entitled to TTD when either (i) your doctor takes you completely out of all work or (ii) your doctor gives you restrictions and your pre-injury employer cannot accommodate those restrictions. TPD applies when you return to work with restrictions but earn less than you did pre-injury. 

To qualify for TTD when you have restrictions your pre-injury employer cannot accommodate, you must show proof that you have marketed your residual capacity—this means you have to show proof that you have been applying for jobs that you reasonably think could accommodate your restrictions. 

In my recent case, the Deputy Commissioner correctly held that my client’s doctor did not disable him from all work, he just said he could not work for the pre-injury employer, which amounts to a work restriction. Therefore, my client must first show proof of marketing his residual capacity before the Commission can grant him temporary total disability wage loss benefits. 

Therefore, it is important to understand marketing requirements and how to properly submit proof of marketing to ensure that you can maximize your financial recovery. Consulting with an experienced Virginia workers’ compensation attorney is the best way to understand your rights and obligations. 

If you have questions about workers’ compensation, call us today at (804) 396-2780 or email us at brentjonesjba@gmail.com. My team represents injured employees all over Virginia who suffer from the mental side effects of a work accident.