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Is my injury covered by workers' compensation or some other law?

Posted by B. Patrick AgnewMar 12, 20200 Comments

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When an employee is injured while working in Virginia (or any other state or jurisdiction for that matter), very complex it is important for the injured worker and the injured workers representative to explore which laws govern the employee's recovery. While many, if not most, injuries are covered by the Virginia Workers Compensation Act in Virginia, many injured workers will find relief from other legal systems, agencies and courts. For example, did the injury occur while working on a boat or vessel? If so, while the injury may have potentially occurred in Virginia or with a Virginia employer, the injury claim may be covered by the Jones Act. Similarly, assume for a moment that the injured worker was injured while working for a railroad or an agent of a railroad. If this is the case the claim may arise under the Federal Employer's Liability Act. Also -- given Virginia's robust shipyard industry, many injuries are covered by the Longshore & Harbor Workers Compensation Act. Virginia is also home to many federal agencies which and federal contractors which raises the question as to whether the claim is covered under federal workers compensation laws. The purpose of this article is to offer a brief -- very brief -- summary of some of the above legal remedies for workers who are injured on the job. It is critically important for the injured worker and the attorney for the injured worker to have a clear understanding of which court or agency is responsible for governing a particular work injury.

While all of the above systems attempt to compensate an injured worker, in some way, for wage loss and medical expenses, some of the systems noted above seek to compensate the injured work for much more. There are vast differences between the ordinary work injury claim that arises under Virginia law and those that arise under the Jones Act and Federal Employer's Liability Act. The Longshore Act is very different from both the Virginia Workers Compensation Act and the other bodies of law noted above. If you are reading this article and are injured or know someone who is, please do not hesitate to contact our office to discuss the injury. If our firm cannot assist you, we will do everything possible to direct you to a firm that handles your particular case.

The Virginia Workers Compensation Act

Virginia Workers Compensation is a “no fault” system. Basically, this means that the injured worker does not have to prove that the employer was negligent. However, the injured worker must prove that the injury arose out of and in the course of his or her employment. Many cases have been litigated on this issue in Virginia.

Workers' compensation in Virginia seeks to provide medical insurance coverage for work-related injuries and illnesses for nearly every employed person in Virginia. If an injured worker is successful in a Virginia Workers Compensation claim the award for medical benefits comes without the typical deductibles and copayments that come with typical health care insurance. In addition, there are no built in time limits for treatment. If medical benefits are awarded by the Commission they come in the form of a “lifetime medical” Award. Even though the award is a lifetime award, the injured worker must always prove that the medical treatment recommended or claimed is “reasonable, necessary and causally related” to the accident. What it means to be reasonable and necessary has been accompanied by much litigation in Virginia. Similarly, whether or not a particular medical treatment is causally related to the accident has also been the source of much litigation. Sometimes, these requirements are straightforward. As a very general rule of thumb, the further an injured worker gets from the accident, particuarly if medical treatment is not ongoing, the more difficult it is to prove that the treatment is related to the accident.

The Virginia Workers Compensation Act also provides for wage loss benefits for injured workers when they are “totally” unable to work or “partially” unable to work. If a medical provider documents that the injured worker is totally not able to work, the injured worker may be entitled to “temporary total benefits”. If the injured worker is on light duty or otherwise “partially” disabled, the injured worker may be entitlement for the difference between what the injured worker is making on light duty and what the injured worker earned before the accident. If an injured worker is partially disabled but unable to perform his or her prior job and is not actually working, temporary total benefits may be paid if the injured worker properly searches for work and documents the search.

Virginia law does not provide for pain and suffering benefits under the Virginia Workers Compensation Act. However, “permanency” benefits may be paid for injuries to body parts (not the neck and back) based upon a schedule set out at VA Code 65.2-503 if the injured worker has permanent loss to the body part and is a “maximum medical improvement”.

The Longshore & Harbor Workers Act

The Longshore Act is like the Virginia Workers Compensation Act in that it is a “no fault” system. To be covered under the Longshore Act, an employee must meet three criteria: ‘Situs,' ‘Status,' and the injured worker must be employed by a maritime employer. In addition, the las has further defined and excluded certain occupations, industries, and exclusions. When an employee is injured, the employer must offer the injured worker medical treatment. authorizes the employee to obtain medical treatment as needed. The type of medical treatment that may be obtained includes, medical, surgical, nursing, hospitalization, prescription medications, diagnostic studies, faith healing, and reasonable and necessary costs of travel required for treatment. 33 U.S.C. § 907(a), 20 C.F.R. §§ 702.401,402 & 412(b).

The Longshore Act defines disability as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment”. Typically benefits come in the form of temporary total and temporary partial benefits. Temporary Disability temporary total disability is defined as the inability to earn any wages for a temporary period of time and entitles the employee to 66-2/3% is average weekly wage. 33 U.S.C. § 908(b).Temporary partial disability benetis are paid if there is a partial reduction in wage earning capacity for a temporary period of time. If so, the injured worker is entitled to 66-2/3% of the difference between his or her pre-injury earnings and his present earnings for a period not to exceed five (5) years. 33 U.S.C. § 908(e).

Permanent total disability benefits are awarded when the injured worker is unable to earn any wages until there is an improvement in the medical impairment, or until alternative employment can be found, entitling the employee to 66-2/3 percent of his average weekly wage.

The Longshore Act is similar to the Virginia Workers Compensation Act in that pain and suffering benefits are not awarded. The two laws are, however, very different. The length of time temporary wage loss benefits can be paid are different, the manner in which permanent total disability is determined is dramatically different and what is necessary to prove an injury is, in some ways, easier under the Longshore Act.

The Jones Act

One way to describe the Jones Act is that it is a hybrid between modern workers compensation systems and personal injury law. The Jones Act applies if a seaman is injured in the course of employment or if the seaman dies from the injury. If the Seaman dies in an accident, the personal representative of the seaman has the option to bring a civil action at law, with the right of trial by jury, against the employer. This provision is vastly different that most if not all state run workers compensation systems and federally administered workers compensation laws.

In order to apply, the injured worker must prove that he or she is a “seaman” In Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995) the United States Supreme Court decided on criteria to determine if an employee can be considered a “seaman”. The employment must be related to a vessel and that vessel must be "in navigation" in order to qualify under the Jones Act. Two factors are critically important:

  1. The worker's duties must meaningfully contribute to the function of the vessel or to the accomplishment of its mission.
  2. The worker must have a connection to a vessel in navigation. If the employee has a connection to a group of vessels, this may be enough. The connection must be substantial in terms in both time (duration) and (nature). In Chandris the Court also adopted the Fifth Circuit's guideline that a worker must spend at least 30% of his or her work on the water to qualify as a Seaman.

Qualification for the Jones Act is further complicated by the fact that the injured worker must show assignment to a Vessel. This is not a simple as it may seem. There are some structures that float like cranes and certain barges that would not typically be described as “vessels” but still, as a matter of law, qualify.

Damages available for injuries that occur under the Jones Act vary according the location of the injury. If the Jones Act is the sole remedy for an injured party, the injured worker can receive common law damages like pain and suffering, wage loss etc. If the injury is fatal, the Jones Act only allows for pecuniary loss suffered by survivors or dependents of a deceased seaman. In addition, there is no provision for loss of consortium claim for the spouse of a seaman solely under the Jones Act. Survivors can -- and this is important -- recover for the deceased seaman's pain and suffering that was experienced before death occurred.

The Federal Employer's Liability Act

We call this statute FELA. FELA is very different from workers compensation systems administered by states and other jurisdictions. FELA is more like the Jones Act and less like modern workers compensation systems but essentially applies to railroad workers. An injured railroad worker is required to establish some negligence on the part of the employer (railroad) in order to prevail. In ordinary workers compensation cases, negligence does not need to be shown. It does not take much negligence and even a “slight” amount is enough. Negligence can be shown in the same way as other personal injury cases. The railroad worker can show lack of reasonable care by the railroad. The injured worker can also establish negligence by showing that the railroad violated a safety rule or regulation. Ordinarily, the railroad worker would need to be established that the railed actually knew or should have known about the risk and danger that ultimately caused the railroad worker to be injured.

Unlike workers compensation cases, FELA cases are usually take place state or federal court. In some cases, the cases occur before a jury. The upside for railroad workers is that FELA providers for a much broader set of remedies than those offered under the typical workers compensation systems including non-economic damages, pain and suffering and survivorship rights.

This summary is a very brief introduction FELA. Volumes of legal writing have been written about the issues that arise in these cases. It is strongly recommended that an injured railroad worker seek legal counsel.


What has been provided here is a very -- very -- brief overview of these legal systems. The statements are broad and are not suitable be applied to particular cases. As you can see, the rights of injured workers are different depending on where they are injured, the type of employment and the nature of the employer. Each system has notable strengths and weaknesses. Each systems seeks to strike a balance between fair compensation and efficiency and each evaluate this trade off in very different ways. If you have questions about your injury and would like to discuss what remedies may be available to you, please do not hesitate to call our firm for a free case evaluation.

Why wait? Click to schedule a free Injury or Disability evaluation.