What rights does an injured worker have?

With potential layoffs pending on the Waterfront, many injured workers must be asking how they can compete in the open labor market to find new employment to support their families. Finding a job in today’s down economy is hard enough. Add a disabling injury to this economy, and supporting a household is difficult at best.

If you were injured on the job while working for one of the Waterfront Employers prior to July 01, 2012, you have three potential remedies to recover your lost wages, if you are laid off from a light duty position.

First remedy: Request a hearing under the Virginia Workers’ Compensation Act. Under the Virginia Workers’ Compensation Act, if you are laid off from a light duty position, you can receive compensation for lost wages from the Employer or its Insurance Company, while you look for a new light duty position in the open labor market. If you are able to find a light duty position, the Employer or its Insurance Company would still owe you the difference between what you were making at the time you were injured, and what you are able to make in your new light duty position.

Second remedy: You may also be entitled to benefits under the Longshore and Harbor Workers’ Compensation Act. Under this Federal statute, if the Employer lays you off from a light duty position, it is responsible for paying compensation to you, until it can prove that you are capable of some other light duty position. As under the Virginia Workers’ Compensation Act, the company would still owe you the difference between what you made at your pre-injury job compared to your earnings in the light duty position.

Third remedy: If you are over the age of 50 and laid off from your light duty position, you may be entitled to Social Security Disability benefits, depending on multiple factors including your education and work restrictions.

If you are injured on the Waterfront after July 01, 2012, not all of these options would be available to you, depending on the location of your injury and the job you were performing. Montagna Klein Camden, LLP is here to assist you in any of these avenues if you are laid off while performing light duty work on the Waterfront. Please feel free to contact one of our attorneys at 757-622-8100.

Virginia House Bill 153 went into effect on July 1, 2012. Any work injuries which occur after that date will not be covered under the Virginia Workers’ Compensation Act if they are covered under the Longshore and Harbor Workers’ Compensation Act. This means that Longshoremen and Shipyard workers who are covered under the Longshore and Harbor Workers’ Compensation Act will no longer have the benefit of also pursuing Virginia Workers’ Compensation Act benefits.

How will this affect you?

Cons:

1. The injured worker cannot receive benefits for a disability rating to an extremity due to a shoulder, back, neck or hip injury under the Longshore and Harbor Workers’ Compensation Act. In the past, Longshoreman would pursue those benefits under the Virginia Workers’ Compensation Act where they were compensable. That option will no longer be available.
2. Under the Longshore and Harbor Workers’ Compensation Act, an individual who has suffered an injury to one of his extremities and reached maximum medical improvement is not entitled to receive loss of wage benefits if they are unable to return to their regular employment. Instead, they are only entitled to a disability rating. Prior to July 1, 2012, we would pursue those claims for Longshoremen under the Virginia Workers’ Compensation Act where the maximum medical improvement date does not effect the individual’s entitlement to lost wage benefits while under restrictions. This option will no longer be available.

Pros:

1. The Virginia Workers’ Compensation Act is very restrictive as to pursuing third party claims against individuals whose negligence resulted in the workers’ injury. Under the Virginia Workers’ Compensation Act not only was the employer protected against such law suits, but in most situations, any subcontractors and other individuals engaged in the same trade and business as the employer were protected.

However, under the Longshore and Harbor Workers’ Compensation Act, only the employer itself is protected from being sued by an individual who is injured on the job. This means that where an injured workers’ accident, was a caused by a subcontractor working on the same job, the worker can receive workers’ compensation benefits from his employer while he recovers from the injury, and then potentially file a third party law suit against the individual, or company, who caused the injury. In those situations, the employer would be entitled to reimbursement for amounts paid on the injured workers’ behalf, but the injured worker could be paid damages for pain and suffering that resulted from the injury.

As indicated above, this change which is effective July 1, 2012 only applies to injuries that occur on or after July 1, 2012. Please keep these significant changes in mind if you, your friends or family suffer an injury on the job.