NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
NWCDN VIRGINIA WORKERS’ OMPENSATION UPDATE
New compensation rates as of July 1, 2012:
As of July 1, 2012, the new maximum compensation rate is $935.00 and the new minimum compensation rate is $233.75. The mileage reimbursement rate remains $.555 per mile. On October 1, 2012, the COLA rate was set at 3.1%.
New Member of the Full Commission
Effective March 1, 2013, R. Ferrell Newman, Esq. became the “neutral” representative on the Full Commission. The Virginia Workers’ Compensation Commission is comprised of one employers’ representative, one claimants’ representative and one “neutral” member. Before his appointment, Commissioner Newman was a longtime workers’ compensation attorney who has represented both claimants and employers.
Commission announces Alternative Dispute Resolution Pilot Program
The Commission has announced an Alternative Dispute Resolution (“ADR”) pilot program. This program will, initially, only apply to change in condition applications where both parties are represented by counsel. If a claim meets this criteria, Commission staff may contact the parties in order to determine whether the dispute, if any, can be promptly resolved. As part of this process, the parties can agree to a joint telephone conference call where they outline their respective positions or have a Commission staff member act as a “go-between” and the parties will not speak directly to one another. If this avenue is not successful, the next step is an “Issue Mediation.” At mediation, Deputy Commissioner Blevins will, similarly, attempt to find common ground and broker an agreement. This mediation can be done either telephonically or in-person. If successful, this program is likely to be expanded to cover initial Claim for Benefits applications and other contested issues in order to reduce the time and expense of proceeding to hearing.
Expedited Review Pilot Program
Starting with Requests for Review filed on or after January 2, 2013, the Commission will ascertain whether the parties agree to participate in the Expedited Review Pilot Program, provided the parties are represented by counsel. If the parties agree, a Notice of Written Statements and Oral Argument will be promptly issued and the appealing party will have twenty days to file its position statement with the Commission. The responding party will, then, have ten additional days to file its responsive pleading. Briefs submitted by either party are limited to ten pages. After position statements are filed, the Commission will set oral argument for no later than twenty days after the deadline for the last written statement and will aim to issue a decision within twenty days following argument.
Recent Case Law Developments
Prince William County School Board v. Rahim, 284 Va. 316, 733 S.E.2d 235 (2012), is a
case that has generated much interest throughout the workers’ compensation community and concerns the statute of limitations for change in condition applications. InRahim, the claimant filed a Claim for Benefits on November 15, 2007 asserting that she suffered a workplace accident on January 17, 2007, but did not seek any specific benefits with that filing. On September 8, 2008, she filed an Amended Claim for Benefits in which she sought both wage loss benefits and an award for lifetime medical benefits. On June 18, 2009, the parties entered into a Stipulated Order which agreed to the compensability of the workplace accident and a lifetime medical award, but which stated that the claimant suffered no wage loss since she had been provided light duty work by the employer at a wage rate equal to or greater than her pre-injury weekly wage. Accordingly, a “Medical Only Award” was entered.
Subsequently, on October 7, 2009, the claimant filed a change-in-condition application in which she sought temporary total disability benefits from August 11, 2009 to the present and continuing. The defense defended the application on the grounds that since there had not been a previous award of compensation by the Commission, the claimant’s wage loss claim was time-barred as it was filed more than twenty-four months after the workplace accident. The Supreme Court of Virginia unanimously affirmed the Court of Appeals’ 5-4 decision and found that the change-in-condition application was timely filed. In its decision, the Court held that, starting from the date of the medical award, the claimant had two years from the date compensation was last paid to file a change-in condition application. In this case, since the medical award was entered on June 18, 2009, the claimant had until at least June 17, 2011 to file her application. More specifically, the Court found that the language in Va. Code Sec. 65.2-708(a), which governs change in condition applications, encompasses medical only awards because the section states that “any award” can be reviewed, not just those awards which order payment of wage loss benefits. Importantly, the Court also noted that under Va. Code Sec. 65.2-708(c), the payment of light duty wages by the employer after the June 18, 2009 medical award would constitute payment of compensation and could act to toll the statute of limitations until compensation ceased.
2012 Legislative Changes
HB 137- Revises the language contained in § 65.2-105 regarding the statutory presumption that certain injuries arose out of and in the course of the claimant’s employment. The legislative enactment applies to situations where the injured worker is physically or mentally unable to testify and there is un-rebutted prima facie evidence that the injury arose out of and in the course of the claimant’s employment. In these instances, there is now a presumption that the injury “arose out of and was in the course of employment,” even though the claimant is not able to testify as to causation, unless there is a preponderance of the evidence to the contrary. The revised language strikes the previous statutory provision which presumed that the injury was “work related.”
HB 153- Any employee who suffers an injury on or after July 1, 2012 is excluded from coverage under the Virginia Workers’ Compensation Act if there is jurisdiction under the Longshore and Harbor Workers’ Compensation Act or the Merchant Marine Act of 1920.
HB 453- Excuses the Commonwealth of Virginia from penalties associated with failure to pay wage loss benefits pursuant to an Award if the Commonwealth has made a payroll payment to the injured worker in lieu of compensation for at-issue disability period.
HB 1169- The Virginia Workers’ Compensation Commission will retain jurisdiction over claims in connection with disputes over partially paid medical bills even in instances where partial payment has been made by an entity other than the employer, insurer, guaranty fund or uninsured employer’s fund.
SB 576- Until July 1, 2015, the maximum .5 percent tax rate may be assessed against uninsured employers or self-insured employers. The revenue generated by said tax funds benefits that are awarded against employers from the uninsured employer’s fund.
SB 577- States that a majority of Commissioners constitutes a quorum enabling the Virginia Workers’ Compensation Commission to take judicial and legislative action when there is a vacancy on the Full Commission. The Chairman of the Full Commission has the discretion to appoint a deputy commissioner to hear a review request when all Commissioners are unable to hear a review request.
For more information, please contact Lynn Fitzpatrick at 703-793-1800 or firstname.lastname@example.org