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Many of our clients come to us with a workers’ compensation claim but with no real idea of what benefits might be available under the statutory provisions which define the Workers’ Compensation system. If they have a general idea of the legal concept of “damages,” that concept very often is formed by the client’s experience with or understanding of the tort-based personal injury damages in civil actions heard in the traditional trial courts. While there are some similarities and parallels between damages in a lawsuit filed as a result of a tort committed against the plaintiff and the benefits resulting from a claim filed for workers’ compensation as a result of an accident which occurred in the course of and arising out of the claimant’s employment, there are significant differences as well. Let’s look at the two (2) proceedings with a focus on the damages/benefits available in each.

First, we look at the damages available to an injured plaintiff in a personal injury action. When I want to put my hands on a concise statement of the law in a particular area, I start with the Virginia Model Jury Instructions. After all, when the judge wants to tell the jurors in a tort case what the law of damages is, this instruction is what the judge turns to when instructing the jury. Model Instruction No. 9.000 sets out the general personal injury and property damage categories of damages. There are eight (8) categories which the jury may consider when reaching its verdict:

(1) Any bodily injuries the plaintiff sustained and their effect on his/her health according to their degree and probable duration;

(2) Any physical pain and mental anguish the plaintiff suffered in the past and any that he/she may be reasonably expected to suffer in the future;

(3) Any disfigurement or deformity and any associated humiliation or embarrassment;

(4) Any inconvenience caused in the past and any that probably will be caused in the future;

(5) Any medical expenses incurred in the past and any that may be reasonably expected to occur in the future;

(6) Any earnings the plaintiff lost because he/she was unable to work at his/her calling;

(7) Any loss of earnings and lessening of earning capacity either, that he may reasonably

be expected, to sustain in the future;

(8) Any property damage sustained.

The instruction ends with the jury charged to arrive at a verdict that “will fully and fairly compensate the plaintiff for the damages sustained as a result of the defendant’s negligence.”

Virginia Model Jury Instructions: Instruction No. 9.000 (Emphasis added.)

As I have mentioned in previous posts, in evaluating a workers’ compensation claim, there are essentially two (2) “pots of money.”
The first is an award of medical expenses. Pursuant to Virginia Code section 65.2-603, an employer of a claimant injured in a compensable accident “shall furnish … free of charge to the injured employee, a physician … and such other medical attention.” How long does the employer’s obligation to furnish medical treatment last? asks employer. “As long as necessary.” answers the statute. Code section 65.2-603 (A)1. The statutory language has been interpreted as meaning for the claimant’s lifetime. This language from the Workers’ Compensation Statute roughly parallels item 5 in our Model Jury Instruction. Consequently, we may conclude that if the injured party (plaintiff or claimant) has incurred medical expenses which were caused by the operative event, and which were deemed reasonable and necessary to treat the injuries resulting from that event, those expenses will be paid for by the employer or the defendant depending on the nature of the proceeding. That coverage extends into the future to include medical expenses “that may be reasonably expected to occur in the future.” Model Jury Instruction No. 9.000, item (5). Therefore, it appears that coverage of the injured person’s medical expenses will be largely the same whether in tort or in a workers’ compensation claim.

We begin to see more divergence between the two systems when we shift our focus to loss of income due to the accident. In the jury instruction, loss of earnings is addressed by items (6) and (7). An injured plaintiff is entitled to be paid for “any earnings he lost because he was unable to work at his calling.” Id. Loss of income, or indemnity as it is referred to in workers’ comp., can be a bit trickier in comp cases than in P.I. cases, depending on whether the claimant’s doctor has given the claimant instructions not to do any work (temporary total disability or “TTD”) or has released the claimant to return to work with restrictions, a so-called light-duty release (temporary partial disability or “TPD’). If the claimant is out of work completely, then calculating the amount of indemnity is relatively straight forward. The injured claimant is entitled to receive his pre-accident average weekly wage (AWW) which is calculated by adding the claimant’s gross earnings for the 52 weeks immediately preceding the accident and dividing the sum by 52. To get from the AWW to the compensation rate (CR), in most cases you multiply the AWW by 66.7% (2/3 of the AWW)
. An injured claimant who has been taken totally out of work is entitled to receive his CR for so long as the claimant remains on TTD up to a maximum of 500 weeks (9.6 years).

An injured plaintiff in a tort action is also entitled to recover his/her lost wages; however, proving what those wages might have been can be more complicated than calculating an AWW. In tort, there is no presumption that a plaintiff would continue to earn the same wages post-accident as he/she did pre-accident. In fact, defendants often challenge a plaintiff’s evidence of loss of future earnings as being speculative or without an adequate foundation. The burden of proof rests with the plaintiff to prove by the greater weight of the evidence that the plaintiff would remain gainfully employed and that she/he would earn income at the same level as before being injured. Perhaps the biggest difference in loss-of-income damages between our stereotypical workers’ comp claim and our equally stereotypical P.I. case is that the plaintiff need not be concerned with an artificial cut-off date for his/her lost wages, while the seriously injured claimant needs to be aware constantly that he/she has used up X number of weeks out of the maximum total of 500.

The two systems diverge even further when instead of a totally disabled claimant, we have a partially disabled one. Tort law does recognize that a plaintiff has an obligation to mitigate damages. The duty to mitigate would arguably include the plaintiff’s duty to pursue part time work if unable to work full time due to injury, but that duty to mitigate is simplicity itself when compared with a partially disabled claimant’s duty to market his/her residual capacity to work. Briefly stated, a claimant who has been released to work subject to restrictions on what she/he can do, such as a lifting restriction or a limit on the number of hours the claimant can stand or sit during a shift, or prohibitions against any overhead work, stooping, kneeling or crawling, has a duty, according to the Workers’ Compensation Commission to search for work if the claimant is limited by the doctor’s restrictions to “selective employment” which leaves the claimant in a position where the claimant is earning less post-accident than the claimant earned pre-accident. Since the employer is required by the Workers’ Compensation Statute to pay the claimant the difference between the pre-injury wage and the post-injury wage, the statute gives the employer some sticks to go along with this carrot.

The first stick is the concept of marketing. The claimant is required to “market” his/her residual capacity, in other words to look for a job which can be performed within the restrictions which will pay at least part of the pre-injury wage. What many claimants do not realize is that the ultimate goal of marketing is to put the claimant in the same income bracket as before the accident, not just to find other employment. Consequently, a claimant could find another “full-time” job which pays less than the pre-accident job, and, despite the “full-time” nature of the new job, be required to look for additional work because the new job pays less than the previous one. Marketing must be conducted in good faith and those efforts must be documented. The Commission has established guidelines for assessing a claimant’s good faith in marketing which include suggested two (2) contacts with potential employers a day or a total of 5 in a week. A claimant’s failure to market adequately is a defense for the employer to cut off indemnity benefits.

In addition to the claimant’s efforts to find work, in Workers’ Comp cases, the employer may also choose to hire a vocational rehabilitation counselor to work with the claimant to assist in locating a job. While the statute lists vocational rehabilitation as among the benefits that an employer can make available to an injured claimant, most claimant’s attorneys would disagree. On that side of the bar one hears numerous stories of voc. rehab people finding make-work jobs for which the claimants have little or no skills, aptitude, or training, with the apparent purpose of forcing the claimant either to refuse to take the job in the first place or quitting the job after trying unsuccessfully to make it work. In either case the result is the same; the original employer cuts off any further indemnity benefits. These two conditions placed on partially disabled claimants have no parallel in the tort case. While the tort plaintiff must be aware of the duty to mitigate damages, those plaintiffs do not face the snares and traps awaiting the unwary claimant seeking to collect TPD indemnity benefits in a workers’ comp claim.

I’ll call a halt to our comparison between damages available to a plaintiff in tort and the benefits available to a claimant under the statutory provisions of The Workers’ Compensation Act. I hope you will join me when I conclude this discussion in Part Two of our comparison of damages and benefits.

I am indebted to Deputy Commissioner William Culbreth for the “2-pots-of-money theory” which he often uses in his role as a mediator when trying to explain to a claimant that any amount the claimant is entitled to receive in a workers’ comp settlement must come from one or the other “pot of money.”

Have you been injured on the job? Call HammondTownsend.

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