5.4 Procedure in an Uncontested Claim

LibraryWorkers' Compensation Practice in Virginia (Virginia CLE) (2020 Ed.)

5.4 PROCEDURE IN AN UNCONTESTED CLAIM

5.401 In General. The great majority of workers' compensation claims are settled without litigation. In most cases, the employee and the employer/insurer are in substantial agreement on the facts upon which the award and termination of benefits are conditioned. The Act provides a simple, efficient, and speedy method for the resolution of these claims. Forms required under the Act are available from the Commission's website and in many cases can be filed electronically. 66 Once an Award Agreement is executed

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and approved by the Commission, an award is entered that signifies acceptance of the injury by accident or occupational disease, body parts/nature of injury, the average weekly wage, the weekly compensation rate, periods of disability payments, and a lifetime of medical benefits as long as the treatment is causally related to the compensable injury and is reasonable and necessary. When there is less than seven days of work disability, a medical-only award may be entered. 67

In an uncontested claim, any agreement between the parties concerning the award or termination of compensation benefits must be in writing, signed by the parties, and approved by the Commission. 68 The Commission will only approve an agreement if, in its opinion, the agreement serves the best interests of the employee or the employee's dependents. 69 Agreements not approved by the Commission are void. 70

If the parties reach an agreement that is memorialized in an award or order, there is no need to proceed to a hearing on either an original or change-in-condition claim. If the employee and the employer cannot agree on the material facts, recourse must be had to either an on-the-record or evidentiary hearing or the settlement process. 71

5.402 Award Agreement. 72

A. Completing the Award Agreement Form. The Act provides that where the employee and the employer agree on the material facts on which an award is conditioned, the parties may file an Award Agreement to that effect with the Commission. 73 Agreement forms may be completed by the

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employee, employer, compensation carrier, or either party's attorney. The form requires the names, addresses, 74 and telephone numbers of the injured worker and employer; the pre-injury average weekly wage; the date of the accident; and body parts/injuries that are being accepted. Attention should be paid to make sure the average weekly wage is correct as this will be the basis for any subsequent compensation payments for the injury. In the absence of fraud, duress, mutual mistake, or other facts that would entitle the parties to invoke the aid of a court, the figure cannot subsequently be altered. 75 It is very important to list all injuries on the agreement form. The failure to include a body part that was initially injured or claimed on the agreement may result in subsequent claims being deemed abandoned, barred by the of limitations, or precluded by res judicata. 76 The form requires specification of whether compensation payment is for an initial, additional, or a corrected period. The parties are required to note whether the agreement is for temporary total, temporary partial, permanent partial, permanent total, or medical-only benefits. The beginning date and weekly payments are stated. In permanent partial disability cases, the percentage of disability, the designation of whether there is a loss of a member, loss of use of a member, or disfigurement must be provided. The parties must note if a lump sum payment with a four-percent discount is part of the agreement. Permanent partial cases also require the attachment of medical reports showing maximum medical improvement and percentage of loss of use or an amputation chart. 77

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In fatal cases, the Fatal Award Agreement must have attached a death certificate, marriage license, and birth certificates of children where applicable.

Upon completion of the agreement form, it is signed by the parties and their legal representatives and forwarded to the Commission for approval.

B. Filing Agreement Form with the Commission. Until the parties agree as to average weekly wage, compensability, body parts/nature of injury, type of compensation, and disability periods, the insurer has no duty to submit an Award Agreement form to the Commission. 78 It may continue to make voluntary payments of compensation and medical bills, but the statute of limitations will continue to run, and a de facto award will not be entered. 79 Thus, counsel for the injured worker should be mindful of the need to file a Claim Form with the Commission before the statutory period even if an agreement is being negotiated. However, once the parties have agreed and executed the Award Agreement, the failure to promptly file the agreement violates the statute and frustrates a primary purpose of the Act and may result in a fine and sanctions against the employer or carrier. 80

In certain circumstances the payment of benefits coupled with failure to file an agreement may result in a de facto award. A de facto award is not a substitute for filing a timely claim, but it does relieve the employee from providing evidence of marketing of remaining work capacity during the period compensation was paid without an award. 81

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C. Withdrawal of Agreement. Either party can withdraw consent to an agreement before entry of an award. If the agreement has already been submitted, a written request to the Commission advising of the withdrawal of consent and requesting that an award not be entered is appropriate. If an award has already been entered, a request for review seeking to have the award set aside can be filed. If a review request is filed within 30 days of the award, the Commission will vacate the award. 82

D. Effect of Commission Approval. As noted, an Award Agreement must be approved by the Commission before it has any effect. 83

Upon receipt of the Award Agreement, the Commission will review it to make sure that approval is clearly in the best interest of the employee or his or her dependents. 84 The Commission usually communicates with the parties if there is a problem with the agreement and provides an opportunity to correct or complete a new form. Problems generally relate to information concerning the agreed period of disability not comporting with what was provided electronically by the insurance carrier, a difference in the average weekly wage from what is contained in the Commission file, or other issues. If the agreement is rejected, it is void. 85

If after reviewing the agreement, the Commission determines that it is clearly in the best interest of the injured worker or his or her dependents, it will note approval and issue an award. The agreement becomes binding on both parties including any infants or incapacitated defendants affected by it. The award has the force and effect of an award entered after a

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hearing in a contested case. 86 It is conclusive of the fact that both the employer and the employee are subject to the provisions of the Act, that the injury resulted from an accident or occupational disease that arose out of and in the course of employment, and that the Commission has jurisdiction over the parties for purposes of enforcement. 87

5.403 Termination of Wage Loss Award. 88

A. Termination of Award. The Act provides that where the parties agree on the facts necessary to terminate an outstanding award of benefits for total or partial incapacity because the employee has returned to work or is able to return to pre-injury work, they may file for a Termination of Wage Loss Award to that effect with the Commission. The statement must stipulate the date on which the employee returned or was released to preinjury work and the average weekly wage at that time. The statute of limitations for further compensation begins to run from the date compensation was last paid pursuant to the terminated award.

The Termination of Wage Loss Award form may only be used to terminate an award for a release to return to pre-injury work or an actual return to work at or greater than the pre-injury wage. The form cannot be modified to terminate or change benefits for other reasons. For...

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