If you are under an open wage loss award from the Virginia Workers’ Compensation Commission (WCC), the insurance company is obligated to pay you for your lost wages in a timely manner. Failure to do so can result in the insurance company owing you a penalty for late payment. But despite the potential for penalties, insurance companies often do not pay benefits in a timely manner.
If you are not under a wage loss award, any payments made to you are voluntary. This means that the workers’ compensation insurer can stop paying you at any time. Unfortunately, without a wage loss award, there is nothing you or your attorney can do about late payments. Note: The workers’ compensation insurance is the entity that makes payments, (usually the employer), but the WCC works as the “court” for these types of cases.
How do I know if I am under an Award Order?
If the insurance company does not dispute your accident, the workers’ compensation adjuster should have sent you an Award Agreement to sign. This Award Agreement places you under the appropriate award for medical benefits and lost wages. After the Commission enters the Award, the insurance company is then obligated to pay you in a timely fashion. The Award Agreement looks like this.
Before you sign this agreement:
- Make sure that the injured body parts listed is correct.
- Ensure that your average weekly wage is correct.
- If the report is accurate, you should sign and swiftly return it to the insurance adjuster.
- They must then sign the agreement and file it with the Commission.
If you are not sure whether or not you received the Award Agreement, you can contact the Commission to check. If you have online access to your claim with the Commission via Webfile, the Commission’s electronic filing platform, you can also check your filings online. If you’ve never received an Award Agreement, you should promptly ask your adjuster for one. This way, you will have the appropriate award entered.
What if my Wage Loss Award is late?
Section 65.2-524 of the Code of Virginia establishes the insurance penalties for late payments. It states, in part:
If any payment is not paid within two weeks after it becomes due, there shall be added to such unpaid compensation an amount equal to 20 percent thereof…
Under this code section you are entitled to receive an additional 20% penalty on any payment that is more than 14 days overdue. Remember, a penalty only applies to payments made pursuant to an award, not voluntary payments.
How do I know if my payment is late?
The first thing you should review is the dates covered by your last payment. The date the check was issued is not the important date. Rather, you need to look at the date range of wage loss that is covered by your last payment. Specifically, look at the end date or the date you were last paid through.
For example, if your last check was issued on May 10th, but covered the period of May 6th through May 17th, your next check is not late until June 1st. This means the insurance company has until June 1st to issue your next check without being late and subject to a penalty. Payment is considered made once it is placed in the mail to you.
If the check was issued and mailed by the insurance company in a timely manner, the payment is not late. This is true even if the check is delayed due to the post office. It is important that you save all the documentation related to your payments. That way you or your attorney can determine if any payment was late and if you are owed a penalty.
How do I know when my check was mailed?
Most insurance companies do not use stamps to mail a check. Rather, the insurance will use a postage meter which puts a mailing date on the envelope as part of the postage. Look at the envelope your check came in to see the date marked on the postage. Make sure to save the envelope so that you have proof that the insurance company made the payment late.
You can also look at the date on the check itself. The insurance company could not have placed your check in the mail before the date it was issued. If the date on the check is more than 14 days after your last payment, then the check is late, and you are owed a 20% penalty.
My check was late – now what?
If you receive a late payment, you should contact your adjuster to let him or her know that you are owed a 20% penalty. If you can show your adjuster that the payment was late, often the adjuster will simply issue you the penalty.
Let’s look at an example:
If your weekly check is $1,000.00, the adjuster would owe you a penalty of $200.00. Keep in mind that the insurance company only owes you a 20% penalty on the part of the payment that is overdue. If you are paid for two weeks of wage loss in one check, you may only be entitled to a 20% penalty on one of those weeks, not both.
If the adjuster refuses to voluntarily pay you the penalty, you can file a claim with the Commission. You will need to submit proof that the payment was late. If you have an attorney, he or she can file the penalty request on your behalf. The Commission could also order the insurer to pay attorney’s fees if the Commission finds the insurance company acted unreasonably.
What if my settlement check is late?
If you settle your workers’ compensation claim, the insurance company is obligated to pay your settlement in a timely manner. However, determining when, or if, a penalty is owed is not always straightforward.
Each party can request that the Commission vacate a settlement order within 30 days of approval; meaning that each party has the right to ask if they can back out of any settlement within 30 days of its approval. However, after 30 days the settlement becomes final, and your payment is owed to you.
Therefore, the insurance company technically has 44 days to pay you your settlement proceeds without owing a penalty. After 44 days without issuing payment, you or your attorney can request a 20% penalty. Penalties on settlements can be substantial. For example, if you are owed a settlement payment of $100,000.00, the insurance company would owe you an additional $20,000.00 for late payment.
Determining when, or if, the insurance company owes you a penalty is a tricky process. If you think your awarded payments are late, it is important that you contact an attorney to help you navigate this journey. Injuries and the resulting paperwork can be overwhelming. Reach out to one of our experienced Virgina personal injury lawyers at Allen & Allen for a free case evaluation. Call 866-388-1307 today. We are here to help.
