NWCDN VIRGINIA WORKERS’ COMPENSATION UPDATE   COMMISSION NEWS   On July 1, 2006, Commissioner Tarr concluded his three year term as the Chairman of the Virginia Workers’ Compensation Commission.  Commissioner Diamond will act as the Chairperson for the next three years.   As of July 1, 2006, the new maximum compensation rate is $773.00 and the new minimum compensation rate is $193.25.  As of October 1, 2006, the COLA rate is 3.45%.   The Commission is also beginning a program in which it will provide foreign language interpreters at no cost, provided the parties make a request for interpreter at least 30 days prior to a hearing.   LEGISLATIVE UPDATE   As of July 1, 2006, a new system for calculation of temporary partial disability benefits has been incorporated into the Workers’ Compensation Act.  For self-employed employees, salesmen who work on commission, or individuals who are closely related to their employer, temporary partial disability will now be calculated as follows:   a. if the disability lasts less than 13 weeks, the partial disability rate is set by taking the average of the claimant’s first two weeks of post injury income.  This rate is then subject to retroactive adjustment at the conclusion of the 13 weeks, or the end of the period of disability.   b. if the disability lasts longer than 13 weeks, the temporary partial rate is calculated by averaging the claimant’s total post injury wages from the current period of disability to date.  Adjustments are to be made quarterly.  Underpayments are to be paid at the time of the adjustment, while underpayments are to result in a dollar for dollar credit against future benefits, which can be taken out of ongoing disability up to one-fourth of each payment.   The Commission is also authorized to use this formula for all other employees at its own discretion.    RECENT CASE DECISIONS   CREDIT – VOLUNTARY OVERPAYMENT John A. Killen v. Westvaco Corporation, VWC File No. 205-29-00 (November 14, 2006)   John Killen was had an accepted claim for benefits related to a left knee injury of November 16, 2000.  The Commission entered various awards of benefits, most recently entering an Award for temporary total disability benefits from November 12, 2002 and continuing.    The employer filed an application on January 24, 2006, seeking to have a credit in the amount of $2,032.66, representing overpayments made by the employer based on the employer’s incorrect calculations during 2004.  The Commission awarded the credit, but reduced the amount of the credit to $1,759.13 to account for COLA payments that the employer had failed to make.  The claimant appealed, contending that he believed that the employer’s payments were all correct when they were made, and he should not now be punished for the employer’s mathematical errors.                 The Full Commission affirmed the Deputy Commissioner, and allowed the credit.  The Commission said that calculation errors constitute “voluntary” overpayments, even when the mistakes are made trying to pay pursuant to an award.  The Commission stated that allowing this credit prevents unjust enrichment to the claimant.   Editor’s Note:  This represents a change in philosophy for the Full Commission.  Previous decisions have held that the employer could not claim overpayment for payments made to satisfy an Award, even if the payment was a miscalculation.  Under prior decisions, the employer would have had to prove fraud, mutual mistake, or imposition.   SUSPENSION OF BENEFITS - REFUSAL OF MEDICAL  CARE – FCE Terry B. Carter v. City of Portsmouth School Board, VWC File No. 200-28-21 (November 8, 2006).   The claimant sustained a compensable occupational injury to her right knee, neck and back on March 13, 2000.  The Commission entered an open Award for temporary total on May 7, 2003.  On July 30, 2004 and April 28, 2005, the employer filed applications to terminate benefits based on the claimant’s failure to cooperate with employer-requested medical treatment.  Specifically, the claimant had attended an IME with Dr. Barnum, who also requested that the claimant undergo an FCE.  The claimant attended the FCE, but did not complete it.  She testified that she stopped the FCE because it was causing her pain in her knee.    The FCE report indicated that the claimant had demonstrated symptom magnification and poor effort during the FCE, noting 3 out of 5 Waddell’s signs and a score of 3 out of 22 on the validity scale, suggesting “very poor” effort.  When the FCE examiner told the claimant that the computer was indicating that she was not giving her maximum effort, the claimant began to cry and left the FCE without completing the tests.  The FCE concluded that the claimant was unable to return to work because of lack of strength.  Dr. Barnum had also indicated some suspicion of symptom magnification, stating that the claimant was attempting to falsely portray weakness in her extremities.    On this evidence the Deputy Commissioner held that the claimant had refused medical treatment and suspended benefits.  On appeal, the Full Commission found that the claimant had refused medical treatment by failing to put forth maximum effort in the FCE, and in so doing had frustrated the employer’s legitimate interest in speeding up the claimant’s recovery.   Editors Note: Again, this appears to be a deviation from the norm.  In this case, the claimant’s treating physician continued to opine that the claimant was not faking or magnifying her symptoms, and opined that is was reasonable for her to cut short the FCE if she was experiencing pain.  In many other instances, the Commission has deferred to the treating physician.  In this case the IME and the FCE report both offered very strong specific opinions as to the claimant’s submaximal effort and symptom magnification.    SUSPENSION OF BENEFITS – REFUSAL OF VOCATIONAL REHABILITATION – CHANGE OF ADDRESS Joseph Mendes v. Philip Chan t/a Yuan Ho Carry Out, VWC File No. 191-42-35 (October 20, 2006).   The claimant sustained a compensable occupational injury on May 1, 1998, which resulted in an open Award, which was suspended on two occasions because the claimant relocated to India for a period of several months without leaving an updated forwarding address.       On this occasion, the employer attempted to place the claimant with a vocational rehabilitation counselor.  As the claimant’s attorney indicated that the claimant would be in India “indefinitely,” the counselor set a meeting with the claimant several weeks out for an initial assessment at his permanent address in the United States.  When the claimant failed to appear, the Uninsured Employer’s Fund filed an application for hearing based on refusal of vocational rehabilitation.   The Deputy Commissioner suspended benefits, and the claimant appealed.  On review, the Full Commission affirmed the suspension, noting that by taking the position that the claimant was in India “indefinitely,” the claimant had put himself in a situation that left the carrier with no ability to seek vocational rehabilitation either here or in India.    Editor’s Note:  This is a useful opinion for many situations involving foreign born injured workers.  It is not uncommon for foreign born injured workers to return to their native country for several weeks or months at a time.  If they leave a forwarding address, the employer cannot suspend benefits for failure to provide an updated address.  However, unless the claimant indicates an intention for his change of address to be permanent, he or she is still subject to vocational rehabilitation in the United States at their permanent address.   For more information, please contact Lynn Fitzpatrick at (703) 793-1800 or lfitzpatrick@fandpnet.com.