DEFINITIONS

Employer

Per Section 65.2-101, and employer includes (i) any person, the Commonwealth or any political subdivision thereof and any individual, firm, association or cooperation, or the receiver or trustee of the same, of the legal representative of a deceased employer, using the service of another for pay and (ii) any volunteer fire company or volunteer lifesaving or rescue squad electing to be included any maintaining coverage as an employer under this title. If the employer is insured, it includes his insurer so far as applicable.

Thornton v. Family Institute of Virginia, JCN VA02000005511 (August 24, 2012)

The Full Commission affirmed the finding of the Deputy Commissioner that claimant was a casual employee; thus, not entitled to benefits under the Act. The Full Commission also held, assuming arguendo, that if claimant was an employee under the Act, claimant was not injured during the course of his employment with the employer. The claimant worked for the employer performing yard work. He worked approximately twice a week during the year before his fall; however, he admitted that he would not work if he had work to perform elsewhere or there was no work to be performed at the employer's place of business. He further admitted that he would occasionally stop at the employer's place of business and ask whether work was available. The Full Commission noted that it was significant that the usual course of the employer's business as a counseling office did not include yard work. The Full Commission also noted that it was clear that the claimant was working for the personal benefit of Dr. Hadeed's personal residence as opposed to his business.

Statutory Employer

For a statutory employer/employee relationship to exist: (1) the work must be part of the owner/contractor’s trade, business, or occupation and (2) the owner/contractor must have contracted with another to have work performed.

Moore v. Virginia International Terminals, Inc., 283 Va. 232, 720 S.E.2d 117 (January 13, 2012)

The Supreme Court reversed and held that the trial court erred in finding that VPA was the statutory employer of CP&O at the time of the accident. Therefore, the Supreme Court held that a civil action could proceed against VPA since it was not shielded by the exclusivity principle of the Act. The Supreme Court noted that the plain language of Virginia Code Section 65.2-302(A) required two discrete elements must be present for a statutory employer/employee relationship to exist: (1) the work must be part of the owner/contractor's trade, business, or occupation, and (2) the owner/contractor must have contracted with another to have work performed. The Supreme Court held that the second prong of this test was missing between VPA and CP&O.

Employee

Per Sec 65.2-101: "Employee" means, among other things:

a. Every person, including aliens and minors, in the service of another under any contract of hire or apprenticeship, written or implied, whether lawfully or unlawfully employed, except (i) one whose employment is not in the usual course of the trade, business, occupation or profession of the employer or (ii) as otherwise provided in subdivision 2 of this definition.

b. Any sole proprietor, shareholder of a stock corporation having only one shareholder, member of a limited liability company having only one member, or all partners of a business electing to be included as an employee under the workers' compensation coverage of such business if the insurer is notified of this election. Any sole proprietor, shareholder or member or the partners shall, upon such election, be entitled to employee benefits and be subject to employee responsibilities prescribed in this title.

"Employee" shall not mean:

a. Casual employees.

b. Any person who suffers an injury on or after July 1, 2012, for which there is jurisdiction under either the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Section 901 et seq., and its extensions, or the Merchant Marine Act of 1920, 46 U.S.C. Section 30104 et seq.

The term “trade business or occupation” generally means business operations of persons and private corporations rather than administrative functions of a political subdivision of the State. Board of Supervisors v. Boaz, 176 Va. 126, 10 S.E. 2d 498 (1940).

Specific employees included and excluded are listed in Section 65.2-101 of the Act. A claimant seeking benefits under the Act bears the burden of proving that he is an employee within the definition encompassed by the Act. Sheridan v. Skyline Express, Inc., No. 2520-94-4 (Ct. of Appeals April 25, 1995).

Borrowed Employee

It is critical to examine if employee has been loaned to another employer who is controlling the employee’s work. If so, this other employer will be responsible for benefits under the Act.

Liberty Mutual Insurance Corporation v. Herndon, et al., 59 Va. App. 544, 721 S.E.2d 32 (February 7, 2012)

The Court of Appeals held that the Commission properly determined that there was sufficient evidence to support that claimant was acting as a borrowed employee at the time of this accident and that his injury arose out of the employment. The Court of Appeals noted that the Commission properly determined that this was not an unexplained accident case and that the evidence established that the claimant fell while he was pulling plywood and fell through a small hole where a stairwell was to be built. The Court of Appeals noted that this case was distinguished from PYA/Monarch & Reliance Ins. Co. v. Harris, 22 Va. App. 215, 468 S.E.2d 688 (1996) in that claimant actually fell. The Court of Appeals went on to note that it was clear that claimant's severe injuries suggested a fall from a great height. The Court of Appeals noted that "because claimant's fall from height was the result of the work environment and the fall from height caused his injuries, he has established the 'causal connection between the . . . injury and the conditions under which the employer require[d] the work to be performed.'" The Court of Appeals also noted that the Commission properly found that claimant was acting as a borrowed employee at the time of the accident. The Court of Appeals noted nine different considerations with control being the most important.

Independent Contractor

The Act covers employees but not independent contractors. To determine whether an individual is an independent contractor Virginia follows the common law test which examines the following elements: (1) selection and engagement of the employee; (2) payment of wages; (3) hire or dismissal; and (4) the power of control over the employee’s actions. The fourth item is the most important element considered by the Commission.

Hernandez v. Hilario Vega-Mejia, JCN VA02000006731 (May 1, 2013)

The Full Commission affirmed the finding of the Deputy Commissioner that claimant was not an employee. Evidence revealed that the claimant uses his own tools, was paid by the job, and was not provided instruction on how to perform his work.

Moore v. Holt Building Group, JCN VA000-0035-8988 (August 9, 2012)

The Full Commission affirmed the finding of the Deputy Commissioner that claimant was an independent contractor not entitled to benefits under the Act. The claimant was supplied with work by Holt. He did not have a contract. Claimant said that he and an assistant would go over to the job and the claimant would give Holt an "idea" of how much he thought the job would cost based on how long they thought the job would take to complete. Holt testified that he did not supervise the claimant and the assistant, but that he would stop by the site at least once a day. They were performing painting work. Holt and claimant agreed that claimant was not hired to do work on an hourly basis. Claimant estimated jobs based on the time to complete the job and a $200.00 per day, per man rate. Claimant was not paid until the job was complete. Taxes were not withheld on behalf of the claimant or the assistant. Claimant provided most of the tools that they were using. The Full Commission affirmed the finding of the Deputy Commissioner that facts did not demonstrate that claimant was an employee entitled to benefits under the Act.

Undocumented Workers

Under the Virginia Workers’ Compensation Act, the employer and carrier are not required to pay a partially incapacitated employee indemnity benefits if they are not eligible for lawful employment in the United States. If an injured worker is totally incapacitated, however, they may receive temporary total disability benefits.

Rodriguez v. Pivaral Mendoza Corp., VWC File No. 238-05-01 (February 3, 2011)

The Full Commission affirmed a claim’s dismissal with prejudice by the Deputy Commissioner. The claimant fell from a roof, sustaining severe injuries. Claimant was an illegal alien and filed a claim using the name of Israel Rodriguez. Claimant also provided interrogatories under oath using the same name. Claimant testified at a deposition that his real name was Venicio Alexander Sipac Gomez. The Deputy Commissioner sustained employer’s Motion to Dismiss the claim based upon the claimant’s admission that he was not Israel Rodriguez. The Full Commission affirmed the dismissal of the claim with prejudice by the Deputy Commissioner. The statute of limitations expired after the dismissal; thus, the claimant was time barred from re-filing under his real name.

Volunteers

Volunteers are not considered an “employee” within the meaning of the Virginia Workers’ Compensation Act. A claimant has the burden of showing the elements of the employment relationship, including (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the employer’s power of control over the employee’s actions. Behrensen v. Whitaker, 10 Va. App. 364, 366, 392 S.E.2d 508, 509 (1990).

Holloway v. City of Newport News Sch. Bd., VWC File No. VA010-0242-4697 (May 7, 2010)

The Full Commission affirmed the finding of the Deputy Commissioner that claimant’s injuries were not covered under the Act since her activities were performed as a volunteer. Claimant, a school security officer, testified that the assistant principal asked her to act as the “hospitality coordinator” for a school pageant. The claimant acknowledged that she did not submit a time slip for her work at the pageant and had no discussions about compensation for these activities. The Full Commission affirmed the finding that claimant was acting as a volunteer; thus, not covered by the Act. Commissioner Diamond dissented.

EXCLUSIVE REMEDY

General Rule

Per Section 65.2-307, the employee's rights under Act exclude all others.

A. The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise, on account of such injury, loss of service or death.

B. Notwithstanding this exclusion, nothing in the Act shall bar an employer from voluntarily agreeing to pay an employee compensation above and beyond those benefits provided for in the Act. Nothing herein, however, shall be deemed to affect or alter any existing right or remedy of the employer or employee under the Act.

Exclusivity Principle

Va. Code Section 65.2-307 provides that workers’ compensation benefits will be the sole remedy when the employer and employee have both accepted the provisions of the Act to pay and accept compensation.

Estate of Kenneth M. Gibbs v. Newport News Shipbuilding and Drydock Company, 284 Va. App. 677, 733 S.E.2d 648 (November 1, 2012)

The Supreme Court reversed and remanded the decision of the trial Court dismissing a wrongful death action by sustaining a plea in bar of the Virginia Workers’ Compensation Act. Decedent was serving on active duty with the armed forces of the United States at the time of his injury. The Navy entered into a contract with Newport News Shipbuilding and Drydock Company for the purchase of two nuclear submarines. The vessels were to be constructed in the Shipyard and delivered to the Navy upon completion. The decedent’s duties were to test and inspect electronic systems on the vessel during the six month period before its final delivery. The decedent has brought a civil action against the Shipyard of the defendant alleging exposure to asbestosis products that resulted in malignant mesothelioma. The Supreme Court noted that the language of Virginia Code Section 65.2-307(A) was plain and unambiguous. It went on to note that the exclusivity provision applies only when the employer and employee have both “accepted the provisions of this Title the Act respectively to pay and accept compensation.” The Supreme Court held that because the Navy would not in any circumstance have been liable to pay compensation under the Act, it was not the Shipyard’s statutory employer. The Supreme Court noted that lacking any remedy under the Act, the Estate was unaffected by the exclusivity bar of Virginia Code Section 65.2-307; therefore, the trial Court erred in sustaining the Shipyard’s plea in bar. Justices McClanahan and Mims both dissented.

No Exception Recognized

Not applicable in Virginia.

Exceptions

In Virginia, a claimant who alleged an injury by accident while employed in a job also covered by the Federal Longshore and Harbor Workers' Act, 33 U.S.C. Section 901 et seq could file concurrent State and Federal claims, but receive only a single recovery. Pursuant to legislation passed in 2012, any Longshoreman injured on or after July 1, 2012 in Virginia is barred from filing a state claim. The LHWCA is the exclusive remedy.

An employee may maintain a common law tort action against an "other party" tortfeasor (i.e. not a co-worker) if, at the time of the accident, the employee was not performing work that is part of the tortfeasor's "trade, business, or occupation." Burch v. Hechinger Co. 264 Va. 165, 563.SE. 2d 745 (200); Bosher v. Jamerson, 207 Va. 539, 151 S.E. 2d 375 (1966)

JURISDICTION AND LIMITATIONS OF ACTIONS

General Rule

Per 65.2-601 the right to compensation under this title shall be forever barred, unless a claim be filed with the Commission within two years after the accident. Death benefits payable under this title shall be payable only if: (i) death results from the accident, (ii) a claim for benefits under this title has been filed within two years after the accident, and (iii) the claim for such death benefits is filed within two years from the date of death.

Extraterritorial Jurisdiction

Per 65.2-508, foreign injuries occur when an accident happens while the employee is employed elsewhere than in this Commonwealth which would entitle him or his dependents to compensation if it had happened in this Commonwealth, the employee or his dependents shall be entitled to compensation, if:

1. The contract of employment was made in this Commonwealth; and

2. The employer's place of business is in this Commonwealth, provided the contract of employment was not expressly for service exclusively outside of the Commonwealth.

However, if an employee shall receive compensation or damages under the laws of any other state, nothing herein contained shall be construed so as to permit a total compensation for the same injury greater than is provided for in this title.

The Commission has jurisdiction over accidents occurring in Virginia and foreign accidents (outside Virginia) when the employer has a place of business in Virginia and the contract of hire was entered in Virginia, provided the contract of employment was not expressly for services exclusively outside of Virginia.

Bayne v. Mesa Airlines, Inc., VWC File No. 238-02-37 (September 16, 2009)

The Full Commission affirmed the finding that the Commission did not have jurisdiction over this foreign injury. Claimant, a flight attendant, sustained an injury in Detroit, Michigan. She testified that she underwent training in Phoenix, Arizona, at the main headquarters, and then was told that she would have a job at National Airport. She was domiciled at National Airport for one year and after that, was domiciled at Dulles Airport.

The Full Commission affirmed the finding of the Deputy Commissioner that the Commission had no jurisdiction pursuant to Virginia Code Section 65.2-508 since the contract of employment was not made in Virginia. Virginia Code Section 65.2-508 requires that the employer not only have a place of business in the Commonwealth, but also that the contract of employment be entered in the Commonwealth in order to exercise jurisdiction over foreign accidents (those outside of the Commonwealth of Virginia).

Herrera v. Martin, 49 Va. App 469, 642 S.E.2d 309(March 27, 2007)

The Court of Appeals affirmed the finding of the Commission that it lacked jurisdiction to hear the claimants’ claim for death benefits. Evidence revealed that the decedent was in transit from Mexico when he was involved in a fatal accident. The claimant had not obtained the visa required for entry into the United States, had not filled out an I-9 form, and had not executed an employment contract. Thus, the Court of Appeals agreed with the Commission that the decedent failed to complete the “last act necessary” to create a valid employment contract. Virginia Code Section 65.2-508 governs foreign injuries, and prevents the Virginia Commission from exercising jurisdiction unless contract of employment was entered in the Commonwealth and the employer’s place of business is in the Commonwealth, provided that the contract of employment was not expressly for services exclusively outside of the Commonwealth.

Time Limitation

The right to compensation under the Virginia Workers’ Compensation Act is barred unless the claimant files a claim with the commission within two years after the accident, absent tolling of the statute of limitations for employer’s failure to file an accident report pursuant to Code Section 65.2-602 or fraud. The Commission does not need to request a hearing within that time frame, as long as the claimant’s notice advises the Commission of necessary elements of his or her claim. Specifically, the claim must identify the employer, the date of the accident, the location of the accident, and the alleged injuries suffered. Meadows v. Cochran Industries, JCN VA00000301614 (July 8, 2013).

Discovery Rule

Under the Virginia Workers’ Compensation Act, a claimant may be compensated for an occupational disease that did not arise out of a single, specific incident and, instead, gradually developed over time. In the case of coal miners’ pneumoconiosis, the claimant’s claim for benefits will be barred unless he files a claim for benefits within (a) three years after diagnosis of the disease, as category 1/0 or greater or (b) within five years from the date of the last injurious exposure in employment, whichever occurs first. In most other occupational disease claims, including, but not limited to byssinosis, asbestosis, symptomatic and asymptomatic HIV, and diseases directly attributable to rescue efforts at the Pentagon on September 11, 2001, the claimant must file a claim within two years after diagnosis of the disease is first communicated to the employee. In addition, once an occupational disease diagnosis is communicated to the employee, they are required to give notice to their employer within 60 days. However, failure to give notice does not bar a claim, unless doing so resulted in clear prejudice to the employer and carrier.

Notice of Injury

• A claimant will not be entitled to benefits under the Virginia Workers’ Compensation Act unless notice of the accident is given to the employer within thirty (30) days, absent reasonable excuse and no prejudice to the employer. Va. Code Section 65.2-600.

• In any event, claimant is not entitled to benefits (medical or indemnity) until after notice to employer has been given unless employer had actual knowledge of accident. Va. Code Section 65.2-600(C).

For disease claims, the claimant must provide notice within sixty (60) days after disease connected to work is communicated to employee. Benefits will not be barred unless clear prejudice to employer is established. Va. Code Section 65.2-405.

In Virginia, a claimant must provide notice of an injury by accident within 30 days of its occurrence, absent reasonable excuse for delay.

Fairfax County Sch. Bd. v. Horgan, Record No. 2121-10-4, 2011 Va. App. LEXIS 197 (June 7, 2011)

The Court of Appeals affirmed the Full Commission’s decision finding that the claimant’s claim was not barred by his failure to give notice. The claimant sustained an injury to his knee and did not provide notice to the employer until after the 30 day period expired. The claimant testified at the hearing he did not think his injury was serious and that it would heal on its own. Once he discovered that he had a medial meniscal tear, he then reported the accident to the employer. The employer did not offer any evidence that they were prejudiced by claimant’s late reporting of the accident. The Court of Appeals noted that the claimant provided reasonable excuse for the late reporting of his accident and that the burden then shifted to the employer to show that they were prejudiced by the claimant’s late notice. The employer failed to meet its burden to prove prejudice. The majority of the Full Commission had determined that there was no question that the claimant sustained a compensable injury so the employer did not lose the opportunity to investigate the claim or prepare its defense. The Court of Appeals in affirming this decision indicated that the record supported their finding because the employer merely argued that it was prejudiced because time and activity could have worsened the claimant’s injury but provided no evidence to support their argument.

Conner v. Beamon & Johnson, Inc., VWC File No. 240-49-14 (September 10, 2010)

The Full Commission reversed the finding of the Deputy Commissioner as to notice. The Full Commission held that the claimant failed to give proper notice pursuant to Virginia Code Section 65.2-600. The claimant in this particular case did provide notice of an accident within 30 days, but did not provide timely notice of the alleged injury. The Full Commission held that section 65.2-600(b) requires that the employer receive both timely notice of an accident, and the nature and cause of the injury. The Full Commission noted that the uncontradicted evidence showed that the claimant failed to advise her supervisor, even when directly asked, that she was injured as a result of the accident. The Full Commission held that the claimant did not present a reasonable excuse for the delay in reporting the nature of her injury to the employer. The Full Commission also went on to note that given the fact that claimant began receiving medical treatment within several weeks of her fall, she could hardly contend that her failure to report injuries was because she believed that they were de minimis.

Statute of Limitations

• File Initial Claim (Section 65.2-601)2 years

•       Change in Condition (Section 65.2-708)2 years

•       Change in Condition (permanency claims) (Section 65.2-708)3 years from the date for which compensation was last paid to the claimant.

•       TTD or TPD after PPD award ends (Section 65.2-501)1 year

o       Unless actual change in condition (Section 65.2-708)2 years

•       Appeal to Full Commission (Section 65.2-705)30 days

•       Appeal to Court of Appeals (Section 65.2-706)30 days

•       Appeal to the Supreme Court 30 days (Rule 5:14 of the Rules of the Supreme Court of Virginia)

Special Rules for Death Claims

Death benefits payable under Section 65.2-601 of the Act shall be payable only if: (i) death results from the accident, (ii) a claim for benefits under this title has been filed within two years after the accident, and (iii) the claim for such death benefits is filed within two years from the date of death. Refer to 3.4.2 Occupational Disease Death Claims in the guide for additional limitations.

Occupational Disease Death Claims

If death results from an occupational disease within the statute of limitations noted in Sections 65.2-405 and 65.2-406 of the Act (refer to 3.4.3 in this guide, Special Rules for Occupational Diseases), the right to compensation under this chapter shall be barred, unless a claim is filed with the Commission within three years after such death. The limitation on time of filing will cover all occupational diseases except:

1. Cataract of the eyes due to exposure to the heat and glare of molten glass or to radiant rays such as infrared;

2. Epitheliomatous cancer or ulceration of the skin or of the corneal surface of the eye due to pitch, tar, soot, bitumen, anthracene, paraffin, mineral oil, or their compounds, products or residues;

3. Radium disability or disability due to exposure to radioactive substances and X-rays;

4. Ulceration due to chrome compound or to caustic chemical acids or alkalies and undulant fever caused by the industrial slaughtering and processing of livestock and handling of hides;

5. Mesothelioma due to exposure to asbestos; and

6. Angiosarcoma of the liver due to vinyl chloride exposure.

Special Rules for Occupational Disease

Pursuant to Section 65.2-405, the employee must give written notice of his occupational disease within sixty days after a diagnosis of an occupational disease is first communicated to the employee, he, or someone in his behalf.

Pursuant to Section 65.2-406, the following occupational diseases have special considerations regarding the statue of limitations under which the claimant can file a claim. The claim must be filed with the Commission within one of the following time periods:

1. For coal miners' pneumoconiosis, three years after a diagnosis of the disease, as category 1/0 or greater as classified under the current International Labour Office Classification of Radiographs of the Pneumoconiosis, is first communicated to the employee or the legal representative of his estate or within five years from the date of the last injurious exposure in employment, whichever first occurs;

2. For byssinosis, two years after a diagnosis of the disease is first communicated to the employee or within seven years from the date of the last injurious exposure in employment, whichever first occurs;

3. For asbestosis, two years after a diagnosis of the disease is first communicated to the employee;

4. For symptomatic or asymptomatic infection with human immunodeficiency virus including acquired immunodeficiency syndrome, two years after a positive test for infection with human immunodeficiency virus;

5. For diseases directly attributable to the rescue and relief efforts at the Pentagon following the terrorist attack of September 11, 2001, two years after a diagnosis of the disease is first communicated to the employee; or

6. For all other occupational diseases, two years after a diagnosis of the disease is first communicated to the employee or within five years from the date of the last injurious exposure in employment, whichever first occurs.

C. When a claim is made for benefits for a change of condition in an occupational disease, such as advance from one stage or category to another, a claim for change in condition must be filed with the Commission within three years from the date for which compensation was last paid for an earlier stage of the disease, except that a claim for benefits for a change in condition in asbestosis must be filed within two years from the date when diagnosis of the advanced stage is first communicated to the employee and no claim for benefits for an advanced stage of asbestosis shall be denied on the ground that there has been no subsequent accident. For a first or an advanced stage of asbestosis or mesothelioma, if the employee is still employed in the employment in which he was injuriously exposed, the weekly compensation rate shall be based upon the employee's weekly wage as of the date of communication of the first or advanced stage of the disease, as the case may be. If the employee is unemployed, or employed in another employment, the weekly compensation rate shall be based upon the average weekly wage of a person of the same or similar grade and character in the same class of employment in which the employee was injuriously exposed and preferably in the same locality or community on the date of communication to the employee of the advanced stage of the disease or mesothelioma. The weekly compensation rates herein provided shall be subject to the same maximums and minimums as provided in §65.2-500

Occupational Disease Claims

Pursuant to Section 65.2-400, "occupational disease" refers to a disease arising out of and in the course of employment, but not an ordinary disease of life to which the general public is exposed outside of the employment.

A disease shall be deemed to arise out of the employment only if there is apparent to the rational mind, upon consideration of all the circumstances:

1. A direct causal connection between the conditions under which work is performed and the occupational disease;

2. It can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment;

3. It can be fairly traced to the employment as the proximate cause;

4. It is neither a disease to which an employee may have had substantial exposure outside of the employment, nor any condition of the neck, back or spinal column;

5. It is incidental to the character of the business and not independent of the relation of employer and employee; and

6. It had its origin in a risk connected with the employment and flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction.

Hearing loss and the condition of carpal tunnel syndrome are not occupational diseases but are ordinary diseases of life as defined in Section 65.2-401.

Extension of Limitation Period

Tolling & The Doctrine of Imposition

If an employee give proper notice of their accident to their employer in accordance with Section 65.2-600 of the Virginia Code, and the employee continues to receive wages in place of indemnity benefits during periods of incapacity or the employer fails to file a report of such injury, and the employer’s actions result in prejudice to the employee, the statute of limitations is tolled for the duration that the employee receives payment, or until the employer files its first report of injury with the Commission. The Doctrine of imposition allows the commission to render decisions based on justice “shown by the total circumstances even though no fraud, mistake or concealment has been shown.

Avon Products, Inc. v. Ross, 14 Va. App. 1, 7, 456 S.E.2d 140, 143 (1995).

Reliance on the doctrine of imposition requires a threshold showing of unfairness (i.e. the employer uses superior knowledge, experience, or economic advantage to cause an “unjust deprivation to the employee of benefits provided under the Act.” Strong v. Old Dominion Power Co., 35 Va. App. 119, 126, 543 S.E.2d 598, 601 (2001). The doctrine will not be applied where the carrier’s actions are consistent with an endeavor to comply with the Act. Hampton Inn v. King, 58 Va. App. 286, 708 S.E.2d 450 (May 17, 2011)

COMPENSABILITY

General Rule

The Virginia Workers’ Compensation Act coves injuries by accident and diseases. Repetitive and cumulative trauma is generally not compensable in Virginia, although there are some exceptions (refer to 4.3.5 Occupational Diseases in this guide).

“Injury”Defined

1. Injury must be result of accident;

2. Identifiable event necessary - snap, crackle, pop;

3. Must cause sudden mechanical or structural change in body; and

4. Must have causal connection between identifiable event and sudden mechanical or structural change in body

Types of Injuries

Accident Not Required

Not applicable in Virginia.

Infectious Diseases

Pursuant to Section 65.2-401, an infectious disease can be compensable if it was contracted in the course of the employee’s employment in a hospital or sanitarium or laboratory or nursing home as defined in Section32.1-123, or while otherwise engaged in the direct delivery of health care, or in the course of employment as emergency rescue personnel and those volunteer emergency rescue personnel referred to in Section 65.2-101.

Horton v. Martha Jefferson Hosp., VWC File No. 237-21-53 (May 5, 2009)

The Full Commission affirmed the finding of the Deputy Commissioner that claimant failed to establish either an injury by accident or a compensable ordinary disease of life. The claimant worked as a registered nurse in the intensive care unit for the employer. She also worked as a nurse in a clinic at Philip Morris part-time. She treated employees of Philip Morris for general ailments and occasionally administered flu or tetanus shots. The claimant testified that she administered flu shots to over 100 individuals for a charitable organization during September 2007. She was tested in November 2007 and found to be positive for MRSA. A physician performed a records review and opined that it was not possible to identify from which of her two jobs she acquired the organism with MRSA.

The Full Commission affirmed the finding of no injury by accident given that claimant failed to prove any mechanical or structural bodily change. Further, the Full Commission affirmed the finding of the Deputy Commission that claimant failed to meet the higher burden of proof set forth in Va. Code Section 65.2-401 requiring proof by clear and convincing evidence that the ordinary disease of life arose out of and in the course of the employment and did not result from causes outside of the employment. The Full Commission noted that proof by clear and convincing evidence is only established where medical opinions state that the condition is “due to” the work, or that there is a “high probability” of causation.

Heart

Generally, a heart attack will not be covered under the Act unless claimant can identify a specific event that constitutes an added-risk of the employment resulting in the heart attack.

Pursuant to Section 65.2-402, there is a presumption of occupational disease suffered in the line of duty when hypertension or heart disease causes the death, or any health condition or impairment resulting in total or partial disability of salaried or volunteer firefighters, members of county, city, or town police departments, sheriffs and deputy sheriffs, Department of Emergency Management hazardous materials officers, police officers, including those controlled by Virginia Marine Police, Metropolitan Washington Airports Authority, Norfolk Airport Authority, and Department of Game and Inland Fisheries. This presumption only applies if the employee, if requested by the employer, submitted to pre-employment physical examinations conducted by a physician selected by the employer or carrier, and which found the employee free of hypertension or heart disease at the time of such examinations.

This presumption can be overcome by a preponderance of the evidence to the contrary.

Please refer to Section 65.2-402 of the Act for a full list of the positions covered by these presumptions.

Stelter v. Manpower, Inc., VWC File No. 226-61-38 (November 27, 2006)

The Full Commission affirmed the finding by the Deputy Commissioner that claimant sustained a myocardial infarction as a result of his October 17, 2005, work accident. Claimant was employed as a laborer and forklift operator. His job duties required that he stand most of the day, bend quite often, push and pull, and lift from thirty-five to fifty pounds. He denied prior problems with his heart or his back. He testified when he grabbed a bag that weighed between thirty-five to forty pounds and turned to place it onto a conveyor belt, his foot got caught in a hose and he began to fall. He testified that he twisted, hit his back on a motor, and landed flat on his back. Further, he testified that he had no problem holding the bag and no problem with his chest, heart, or lower back before he fell. When he fell, he indicated that he felt pain in his left leg, lower back, and chest. The claimant also testified that while he was lying on the ground, he had chest pains, like bubbles in his chest that he had never experienced before. The Full Commission agreed with the Deputy Commissioner that the claimant sustained a myocardial infarction, as well as a back strain, as a result of his work accident. The Full Commission noted that the claimant had no symptoms earlier in the day and he testified that he felt “great” until he fell. After his fall, the claimant had the onset of symptoms which he testified were different from the earlier symptoms he experienced.

Psychological Injury

Claims for mental health treatment (e.g., depression, PTSD, etc.) may be covered in Virginia. There are four (4) possible paths that mental health claims may arise: (1) injury by accident; (2) occupational disease; (3) ordinary disease of life; and (4) compensable consequence.

1. Injury by Accident

Claim for mental health treatment may be covered as an injury by accident if claimant has sustained physical injury or sudden shock or fright arising in the course of employment. To qualify as sudden shock or fright, event must be both unanticipated and a truly shocking/frightening event (relatively high burden in Virginia).

2. Occupational Disease

Claim for mental health treatment may be covered as an occupational disease if diagnosis arose out of the employment, did not arise from causes outside of the employment, characteristic of the employment, and caused by conditions peculiar to the employment. Burden of proof: clear and convincing evidence. Va. Code Section 65.2-400.

3. Ordinary Disease of Life

Claim for mental health treatment may be covered as ordinary disease of life in situations when general public exposed to disease as well outside of the employment. Claimant must establish the disease was caused by the employment and must rule-out non-work-related factors. Burden of proof: preponderance of the evidence. Va. Code Section 65.2-401.

4. Compensable Consequence

Claim for mental health treatment may be covered as compensable consequence if it directly related to the physical injury and flows from it as a natural consequence.

Interaction with Supervisors/Managerial Decisions

In Teasley v. Montgomery Ward & Co., 14 Va. App. 45, the Court of Appeals held that “disagreements over managerial decisions and conflicts with supervisory personnel that cause stressful consequences which result in purely psychological disability ordinarily are not compensable.”

Post Traumatic Stress Disorder (“PTSD”)/ Psychological Injury/Sudden Shock or Fright

A claim for PTSD may be presented by a claimant in multiple forms. It may appear as a claim for an original injury by accident. It also may appear as a claim for disease under the Act. Finally, the claimant may pursue a claim for PTSD as a compensable consequence of an original work accident. The claimant may prevail under an injury by accident theory so long as he or she can establish that the PTSD was a result of sudden shock or fright. The claimant may also prevail under a theory of compensable consequence so long as he or she can connect the diagnosis of PTSD directly to the physical work accident.

Larkin v. Thalia Gardens Apartments, VWC File No. 238-20-16 (March 26, 2010)

The Full Commission reversed the Deputy Commissioner, finding that claimant failed to prove compensable PTSD as a result of an incident at work on March 19, 2008. The claimant, a maintenance secretary, testified that she was in the employer’s shop when she heard a series of six loud bangs, which sounded to her like a generator had blown. She then received a radio call from a co-worker informing her that another co-worker had been shot and was lying outside the leasing office. The claimant described that she then headed to the leasing office and found her co-worker “laying on the ground with her brains blown out, her ear blown off, three of her fingers blew off, with her eyes open.” The Full Commission, reversing the Deputy Commissioner, found that the event did not qualify as a sudden shock or fright noting that she did not witness the actual occurrence, was not physically injured in the event, and it was not “shocking, frightening, traumatic, and unexpected.” Commissioner Diamond dissented.

Occupational Diseases

Pursuant to Section 65.2-401 of the Act, There are two types of diseases in Virginia: (1) ordinary disease of life and (2) occupational disease

1. Ordinary disease of life - Section 65.2-401 One in which the general public is exposed outside of the employment (e.g., hearing loss, asthma, bronchitis)

2. The burden of proof for ordinary disease of life is clear and convincing evidence.

3. Occupational disease - Section 65.2-400. (e.g., chemical exposure)

4. The burden of proof for occupational disease is a preponderance of the evidence.

Repetitive and Cumulative Trauma is Generally Not Compensable in Virginia.

In 1996 the Supreme Court of Virginia in Stenrich Group v. Jemott, 251 Va. 186 (1996), stated that “job-related impairments resulting from cumulative trauma caused by repetitive motion, however labeled or however defined, are, as a matter of law, not compensable under the present provisions of the Act.”

Some carved out exceptions:

• General Assembly included hearing loss and carpal tunnel syndrome in ordinary disease of life statute in 1997.

•       Some conditions can be treated as either a disease or an injury by accident. Example: carpal tunnel, DVT.

Carpal Tunnel

•       Carpal tunnel syndrome (CTS) may be covered in Virginia as either an injury by accident or disease.

•       To be compensable as an injury by accident it must be diagnosed as a result of a specific identifiable event.

•       CTS is rarely caused by a single event and such allegations should be closely examined.

•       To be compensable as ordinary disease of life claimant must prove by clear and convincing evidence, (not a mere probability) that the disease (1) was caused by work; and (2) that non-work-related factors have been ruled-out. Va. Code Section 65.2-401. The legislature covered CTS as an ordinary disease of life as of 1997.

•       When presented with CTS disease claims it is often advisable to approach the treating doctors to attempt to determine whether they will agree (1) that the CTS cannot be connected to the work by clear and convincing evidence and/or (2) that non-work-related factors cannot be ruled-out as cause for CTS. If they agree, the claim is not compensable as an ordinary disease.

Preexisting Conditions

In Virginia, even if the employee has a pre-existing medical condition, the employer and carrier may still be responsible for a work accident that aggravates or accelerates that pre-existing condition.

•       However, ordinary diseases of life that are aggravated by, but not caused by, the employment are not covered in Virginia. See Ashland Oil Co. v. Bean, 225 Va. 1 (1983).

•       When these situations arise the adjuster should examine the mechanics of the work accident, prior medical treatment (diagnoses, any diagnostics, amount of treatment, and timing) and complaints expressed by claimant pre-accident as compared to post-accident.

•       An Independent Medical Evaluation is often advisable in these cases.

Compensable Consequences

•        When an employee who has had a compensable work accident, then has a second injury that is causally related to the first injury, the second injury is considered to be a “compensable consequence” of the first injury and will be covered under the Act.

• Example: Claimant injures right knee in compensable work accident. Right knee is an accepted injury. Right knee gives out causing claimant to fall and injure left knee. Left knee is a compensable consequence.

•       Exception: If the second injury is the result of an independent intervening cause attributable to claimant’s own intentional conduct, the second injury is not covered.

•       Case law indicates that the doctrine of compensable consequences will not extend out to every injury that is remotely related to the compensable work accident.

•       In Amoco Foam Products v. Johnson, 257 Va. 29 (1999), the Supreme Court of Virginia essentially found that if “A” (being the compensable injury) causes “B” and “B” causes “C” then “C” is not a compensable consequence.

•       Example: Claimant injures right knee in compensable work accident. Right knee is an accepted injury. Right knee gives out causing claimant to fall and injure left knee. Left knee is a compensable consequence. Later, left knee gives way, claimant falls and breaks his left hand. Left hand injury is “too attenuated” and is not a compensable consequence.

•       The case of Farmington Country Club, Inc. v. Marshall, 47 Va. App. 15 (2005) is significant because it reflects that the Court of Appeals will, consistent with Amoco Foam, draw a line at how far the compensable consequence theory will reach.

EXCLUSIONS AND DEFENSES

Course of Employment

Injury must occur in the course of employment

An accident occurs in the course of employment when it takes place within the period of employment at a place where, from the nature of the work, the employee may be reasonably fulfilling the duties of his or her employment or is doing something that is reasonably incidental to the employment.

Engaged in the Furtherance of Employer’s Business

The “going” and “coming” rule. Accidents sustained while an employee is going to or from work are generally not compensable. There are three primary exceptions: (i) when the means of transportation is provided by the employer or the time consumed is paid for or included in the wages; (ii) where the way used is the sole and exclusive way of ingress or egress and is constructed by the employer; and (iii) where the employee is still charged with some duty or task of his employment.

O’Rourke v. Aramark, VWC File No. VA000-0019-8064 (December 22, 2010)

The Full Commission affirmed the finding of the Deputy Commissioner that claimant’s injury did not occur in the course of the employment. Claimant slipped and fell sustaining injury to her wrist on her way in to work. Claimant parked her personal vehicle in the Ivy/Emmett Garage, and the Green Line UVA bus to Central Grounds was the first to arrive that morning. She rode that bus, got off across the street from Newcomb Hall, at the closest stop, and walked toward the crosswalk. As she approached the crosswalk, a young woman who was with her fell on ice, and the claimant also slipped on the ice and fell within seconds, breaking her left wrist. The claimant was still on the sidewalk, about five feet from the crosswalk, when she slipped on the ice. No one from the employer specified where or whether she had to park at UVA. The employer did not pay for parking, or pay mileage or wages for her commute. The claimant knew that there was another crosswalk in front of Alumni Hall, but she testified that the crosswalk across from Newcomb Hall was the most direct route to her office. The claimant also agreed that she took a UVA bus on the morning of the accident and that three UVA bus routes drive around the entire grounds. To her knowledge, the UVA bus system was available to students and staff. Everyone was permitted to board the bus without paying or giving the driver anything. The claimant could have taken a different bus and there were other crosswalks where she could have exited the bus and other entrances to Newcomb Hall. The Full Commission agreed with the finding of the Deputy Commissioner that none of the three exceptions applied to the “going and coming rule.” The Commission noted that the Deputy Commissioner properly rejected claimant’s argument that the sidewalk was an essential means of ingress and egress to Newcomb Hall from the Green Line bus stop, and was therefore a part of the employer’s extended premises.

Not in Furtherance of Employer’s Business

Personal Comfort Doctrine vs. Detour

• Virginia follows the personal comfort doctrine, which recognizes the need for periodic breaks and excursions for food, drink, rest, and restroom visitation. Injuries suffered while on a personal comfort break are compensable only if such break is taken on the premises or extended premises of the employer, at a place and facility designated by the employer for such purpose, or incidental to required travel outside the employer’s premises to perform work duties.

• Such acts as are necessary to the life, comfort, and convenience of the servant while at work, though strictly personal to himself, and not acts of service, are incidental to the service, and injury sustained in the performance thereof is deemed to have arisen out of the employment.

• The personal comfort doctrine only applies if “the employee uses the facilities furnished to [her] by the employer, or does not depart from the employer’s premises, or go to some place thereon where [she] has no right to be.” Kraf Constr. Servs., Inc. v. Ingram, 17 Va. App. 295, 299, 437 S.E.2d 424, 427 (1993) (citation omitted).

• An employee’s actions may be considered a personal mission that his not compensable if they were engaged in an activity that was not a duty required of his work or related to it, nor had the task been specially assigned or directed by a work supervisor. Lam v. E.A. Breeden, Inc., VWC File No. 237-13-13 (September 25, 2009) (quoting Cannavino v. Kiln Creek Auto Sales, VWC File No. 175-61-73 (June 12, 1996)

  Traveling Employees

  Not applicable in Virginia. Analyzed through the “going and coming rule” per Engaged in the Furtherance of Employer’s Business above

  Commuting

  Analyzed through the “going and coming rule” per Engaged in the Furtherance of Employer’s Business above.

  No Fixed Place of Work Exception

  Not applicable in Virginia. Please see the “Going and Coming Rule.”

  Transportation Included in Employment Exception

  Not applicable in Virginia. Please see the “Going and Coming Rule.

  Special Missions, Assignments, or Circumstances Exception

  Not applicable in Virginia. Please see the “Going and Coming Rule.”

  Premises and Parking Lot Cases

  A fall in a parking lot is one application of the “extended premises doctrine.” If an employee falls in a parking lot not located on the employer’s premises, the fall may be found compensable if the employer exercised sufficient authority or control over the parking lot. In making this determination the Commission will consider multiple facts, including:

  (1) whether the employer maintained the lot;

  (2) whether the employer assigned employee parking in an area of a shared lot;

  (3) whether the lot was exclusively used by the employer;

  (4) whether the employee is provided parking by the employer as a fringe benefit; and

  (5) whether the employee falls while traveling in a place the employee is reasonably expected to be between such a parking lot and the employer’s premises.

  The test is quite subjective but at the core of the analysis, the Commission is attempting to find out if the facts are strong enough to show that the employer exercised enough control or authority over the parking lot to justify treating it as a part of the employer’s extended premises.

  Griffin v. Sandler Management Company/Tidewater Financial, JCN VA00000392948 (July 18, 2012)

  The Full Commission reversed the finding of the Deputy Commissioner and held that injury did not occur in the course of the employment. Claimant sustained multiple injuries when she slipped on black ice walking to her vehicle located in a parking lot at the end of the work day. Claimant did work at the employer's premises at the time that the injury occurred and her injury occurred while walking to the employer's premises in a generally used, public parking lot that the employer did not control or maintain. She was walking in an area open to all tenants and customers of the strip mall. The employer did not reserve a space for the claimant or require her to park in it. The Full Commission found that this common area was not an essential means of egress. The Full Commission went on to note that the risks of the parking lot to which the claimant was exposed were no different than those of any member of the public who chose to park in the lot. Hence, claimant's fall did not arise out of the employment.

  Kincaid v. Russell County DSS, JCN VA00000402846 (April 27, 2012)

  The Full Commission reversed the finding of the Deputy Commission and held that claimant's injury did occur in the course of the employment; specifically, that the extended premises doctrine applied. Claimant worked in a stand-alone two-story building surrounded on three sides by a parking lot. Claimant worked for Russell County Department of Social Services ("DSS"). The claimant testified that DSS and the Health Department used this parking lot. At the time of her fall, there were no designated areas for DSS staff parking. The Industrial Development Authority ("IDA") of Russell County owned the building housing the DSS office. The claimant testified that none of the DSS employees maintained the parking lot. There were three entrances and exits to the parking lot and three doors the claimant could have used to gain access to the building. The claimant slipped and fell while in the parking lot in an area that had recently been scraped of snow.

  Extended Premises

  The extended premises doctrine permits compensation where an injury occurs in a location that, even though it is not properly owned or maintained by claimant’s employer, nevertheless was on the premises of another that was in such proximity in relationship to the space of the employer, that it is for all practical effect the employer’s premises.

  Capital Area Pediatrics, Inc. v. Eken, Record No. 1557-12-4, 2013 Va. App. LEXIS 141 (May 7, 2013)

  The Court of Appeals affirmed the finding of the Commission that claimant was injured in the course of her employment, relying upon the extended premises doctrine. Claimant slipped and fell suffering injury on unseen ice at the sidewalk entrance immediately adjacent to her workplace. Claimant was on her way back in to work at the time she slipped and fell. The Court of Appeals explained that the extended premises doctrine permits compensation where an injury occurs in a location that, even though it is not properly owned or maintained by claimant's employer, nevertheless was on the premises of another that was in such proximity in relationship to the space of the employer, that it is for all practical effect the employer's premises. The Court of Appeals held that the Commission's finding was supported by credible evidence and that the Commission properly relied upon the decisions of Prince and Wetzel's Painting.

  American Trucking Ass’n., Inc. v. Stallings, Record No. 0980-09-4, 2010 Va. App. LEXIS 70 (February 23, 2010)

  The Court of Appeals affirmed the finding of the Commission that claimant was injured in the course of her employment. The claimant and a colleague walked to a nearby restaurant to have lunch. They intended to return to work using the building’s west entrance, the entrance closest to the restaurant where they had lunch. After exiting the public street and walking past the electronic card reader and gate that controlled access to the building’s paved driveway and underground garage, claimant slipped on icy ground resulting in injuries. The Court of Appeals noted that the claimant was required to traverse the area where she fell in order to reach her workplace. Further, the Court of Appeals noted that the evidence was undisputed that claimant suffered her injuries after exiting the public street on foot and after passing the electronic card reader and gate controlling vehicular traffic onto the building’s property. The Court of Appeals held that the Commission properly found that the employment began in point of time before the work was entered upon and in point of space before the place where the work to be done was reached. Therefore, the Court of Appeals found that there was sufficient credible evidence supporting the Commission’s finding that claimant was injured on the employer’s extended premises.

  Related to Employment

  In order for an employee’s claim to be considered to be compensable under the Act, the claimant has a burden of showing that sustained an “injury by accident” that “arose out of “ and “in the course and scope of their employment.” Each must be present and it is often a very fact-specific analysis, etc.

  1. Injury by Accident.

  The “injury by accident” requirement for compensability requires a showing by the claimant that he or she was indeed injured as a direct result of a specific accident. Stated differently, the claimant must show a sudden mechanical or structural change in the body from a compensable accident.

  Family Dollar Stores, Inc. v. Presgraves, Record No. 0814-10-4, 2010 Va. App. LEXIS 491 (December 21, 2010)

  The Court of Appeals affirmed the finding of the Commission that claimant established a sudden identifiable injury by accident. The Court of Appeals noted that “the evidence shows that the event, which precipitated [the claimant’s] injuries was the cranking of a handle for 10 to 30 minutes, which is not an activity that was normal, repetitive work required by his position.” The Court of Appeals went on to note that “[the claimant’s] injuries were not caused by gradual growth of repetitive acts, but resulted from the single event of cranking the handle on a definite occasion during the performance of the specific piece of work such that it was an identifiable incident. The causative event occurred within the course of 10 to 30 minutes, which the Commission properly determined was a reasonably definite time period.”

  Hoffman v. Carter, 50 Va. App. 199, 648 S.E.2d 318 (2007)

  The Court of Appeals affirmed the finding of the Commission that the claimant sustained a sudden injury by accident. Claimant described that he was performing demolition work on plaster walls. The claimant described that he worked three to four hours, noticed “a lot of dust and stuff in [his] nostrils [,]” and began “coughing the stuff up pretty much.” The claimant described that he continued coughing and left work early the following day. The Court of Appeals found that the evidence was “sufficient to support a finding that [claimant’s] exposure to plaster dust was ‘bounded by rigid temporal precision,’ and thus, constituted ‘an identifiable incident.’”

  2.Arising out of

  Virginia is not a positional risk state. A claimant must prove that the injury was due to an added risk of the employment. The Commission has ever-evolving case law precedent with regard to the analysis of added risk related to specially stairs, ladders, bending, stooping, walking, food, chairs, assault,

  Gobashi v. Fairfax County Public Schools, Record No. 0446-12-4 (December 4, 2012)

  The Court of Appeals affirmed the finding of the Commission that claimant’s injury to her knee, incurred as she hurried to a classroom, did not arise out of her employment. Claimant was on her way to a classroom with an autistic student after assisting another special needs child in the bathroom. The Court of Appeals agreed with the Commission that nothing in the record suggested an emergency situation was created on this particular day by claimant’s being delayed for a few minutes from being with the autistic students in the classroom; hence, the injury did not arise out of the employment.

  Wythe County Cmty. Hosp. v. Turpin, VWC File No. VA00000183028, 2011 Va. App. LEXIS 299 (October 4, 2011)

  The Court of Appeals affirmed the finding of the Full Commission that the claimant proved a compensable injury arising out of the employment. Claimant testified that she lost control of her vehicle when she was distracted by her cell phone light, which had caught her attention. The claimant testified that at the time of her accident, she was working, on-call, for the employer. Claimant was required to be available for contact by her employer while on-call. She kept a beeper and a cell phone in the front pocket of her nursing uniform to quickly respond to such work-related calls. The Court of Appeals agreed that in the specific circumstances presented in this case, the claimant’s injury arose out of the employment. The Court of Appeals noted that the accident resulted from the particular manner in which her work was being performed, i.e., routinely and promptly responding to calls while working from her car.

  3.In the course of

  The “in the course of” requirement for compensability refers to time, place and circumstances under which the alleged injury occurred.

  Whitt v. Halliburton Energy Services, Record No. 2281-11-3, 2012 Va. App. LEXIS 156 (May 15, 2012)

  The Court of Appeals affirmed the finding of the Commission that claimant did not sustain injury in the course of his employment. Claimant was injured while performing an agility test required for a certain job. The Court of Appeals noted that given the specific facts at issue claimant had not shown that the injury occurred in the course of the employment. The Court of Appeals went on to note:

  We certainly do not foreclose the possibility that an employee who is injured while undergoing an evaluation for a promotion or alternative position of employment may fall within the scope of the Virginia Workers' Compensation Act. We simply conclude on the particular facts before us that an employee who seeks to obtain a new position of employment with his current employer on his own initiative and volition, without being required or expected by his employer to seek such a new position, and who is injured while performing a test administered by an undisclosed person or entity, at an undisclosed location, and at a time that may or may not fall within work hours, is not "reasonably fulfilling duties of his employment or engaged in doing something incidental thereto." (citation omitted)

  Lopez-Arias v. Shoppers Food Warehouse, VWC File No. VA010-0242-5770 (December 3, 2010)

  The Full Commission affirmed the finding of the Deputy Commissioner that claimant’s injury arose out of and in the course of her employment. Claimant stated that when she arrived at the store, she went to the head cashier to find out where she was assigned that day, put her purse and sweater under the cash register, and set up the register. She had some time before her shift was to start, and could not punch in until 10:30 a.m., so she decided to get something to eat. The claimant described that she walked into an area of the store designated as the public cafeteria, purchased food, heated it in the microwave, and went to a table. When she sat in a chair, it gave way, and she fell to the floor sustaining injuries.

  The Full Commission noted that claimant’s injury arose in the course of the employment because it occurred on the employer’s premises and she was engaging in anticipated behavior, which was beneficial to the employer and reasonably incidental to her employment. Specifically, the Full Commission noted that claimant arrived early to be able to punch in on time, she checked her assignment, put her things under her assigned register, and set up the register so it would be ready for the day’s work. The claimant had a few minutes before her shift began and could not punch in early and so she decided to eat breakfast. The Full Commission noted that the employer benefited from this behavior as it allowed the claimant to arrive early to work and to start her shift on time. The Full Commission also rejected the employer’s assertion that the injury did not arise out of the employment arguing that she would have been equally exposed to the hazards of sitting in a broken chair apart from the employment. The Full Commission noted that the broken chair was in an area in which employees eat and was a risk of the employment.

  Intentionally Self-Inflicted Injury or Death

  No compensation shall be awarded to the employee or his dependents for an injury or death caused by the employee’s intentional self-inflicted injury.

  In order to prevail, the employer must show that the claimant “willfully” undertook the action, proximately causing his accident or injury. In order to establish that the employee’s actions were willful, the employer must show something more than more than a mere exercise of the will in doing the act. It imports a wrongful intention. Uninsured Employer’s Fund v. Keppel, 1 Va. App. 162, 33 S.E.2d 851 (1985). Proof of negligence, even gross negligence, alone will not support defense of a willful act without a showing of wrongful intention. Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 327, 437 S.E.2d 205 (1993).

  Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs

  Although impairment or intoxication that causes an injury will completely bar entitlement to benefits under the Virginia Workers’ Compensation Act, there is no statutory exclusion for intoxicated employees. Rather, a severely intoxicated employee has removed himself or herself from the scope of employment and therefore injuries suffered are not “in the course of” employment. See e.g., American Safety Razor Co., et al. v. Hunter, 2 Va. App. 258 (1986).

  To prevail, the employer must establish that the intoxication was a proximate cause of the injury. In other words, it is not enough to simply establish that the claimant was impaired, but rather the employer must also establish that the impairment proximately caused the claimant’s injuries.

  The inquiry in intoxication cases is whether the injury likely would not have occurred, but for the claimant’s intoxication. Wyle v. Professional Services Industries, Inc., 12 Va. App. 684 (1991). The Commission must consider whether the claimant’s intoxication played any part in contributing to his or her injury, such as by affecting her balance or causing the employee to disregard a danger. Id.

  In order to prevail in these cases, an employer often needs a properly preserved drug screen and the opinion of a toxicologist.

  Suggs v. Southland Concrete Corp., Record No. 0797-08-4, 2008 Va. App. LEXIS 368 (August 5, 2008).

  The Court of Appeals summarily affirmed the finding of the Commission that the claimant’s injuries were due to willful misconduct, namely intoxication. The employer had a toxicologist testify that claimant’s blood alcohol content was 0.213. Further, the toxicologist testified that the claimant’s impairment resulted in him overlooking one of his job duties. The Commission found that the claimant’s intoxication was the proximate cause of his injury. The Commission observed that this was not a case in which there was another cause of the accident such as in American Safety Razor Co. v. Hunter, 2 Va. App. 258 (1986) (finding that sudden movement of a forklift, not employee’s intoxication, caused the accident.)

  Employee’s Violation of Positive Orders of Employer

  An intentional violation of a safety rule resulting in injury will completely bar a claim for benefits by the claimant. To prevail, the employer must establish: (1) the safety rule or regulation was reasonable; (2) that the safety rule or regulation was made known to the employee; (3) that the safety rule or regulation was for the employee’s benefit; and (4) that the employee intentionally undertook the forbidden act.

  If there is proof presented of a pattern or practice of failing to discipline employees for violating the safety rule under circumstances where the employer had knowledge that the claimant or other employees were violation the rule, it will defeat the defense. The Court of Appeals has held that the proper analysis is the employer’s efforts to enforce compliance with the rule not necessarily any particular punishment given to a particular employee. Mouhssine v. Crystal City Laundry, 62 Va. App. 65, 741 S.E.2d 804 (May 14, 2013).

  Personal Animosity

  Determining the motive of the attacker is critical in assault cases. The claimant must prove that the assault was directed against him as an employee or against him because of the employment in order to be covered under the Act. Assaults which are purely personal with no connection to the employment are not covered under the Act.

  Billett v. Cowan Distribution Services, JCN VA00000648813 (April 5, 2013)

  The Full Commission affirmed the finding of the Deputy Commissioner that claimant proved a compensable injury arising out of the employment. Claimant, a truck driver, was asleep in the cab of his truck when he was woken by someone pounding on his truck at approximately 1:30 a.m. to 1:45 a.m. He opened the privacy curtain and saw a man standing by the driver's door of the truck. He sat down in the driver's seat and rolled down his window about half-way. The man indicated that he needed the claimant to move his truck. The claimant then advised the man that he was unable to move the truck, because he was on his mandated break and moving the truck would trigger a violation. The man punched the claimant several times through the opening of the window, jumped down and ran to a truck. The Commission found that, based on the demand of claimant's assailant, also a truck driver, demand that he move his truck, and claimant's refusal to do so because moving his truck at the time would have triggered a violation of his mandated 10-hour break, there was sufficient evidence in the record to prove that claimant was targeted for this assault as a result of his employment as a truck driver; thus, claimant's assault arose out of his employment.

  Washington v. Enterprise Leasing Company of Norfolk/Richmond, LLC, JCN VA000-0041-7631 (December 12, 2012)

  The Full Commission affirmed the finding of the Deputy Commissioner that claimant failed to prove a compensable injury arising out of the employment. The claimant alleged that he was attacked, carjacked, and robbed, while working. The claimant worked for the employer car rental company as a car prep/driver. He had left the Enterprise office in Emporia to go to the bank to deposit money. On his way to the bank, claimant’s boss called to give him additional instructions. He had missed his exit for the bank while talking on the phone, so he decided to stop at a Hardee’s for lunch and to use the restroom. The claimant testified that the car he was driving was part of the Enterprise rental fleet and had a small Enterprise sticker on its back. His clothes did not identify him as an Enterprise employee. While exiting the vehicle to go inside of the Hardee’s, the claimant was assaulted and shoved back into the car. He was taken to a house where he was repeatedly assaulted and someone asked him, “Where’s the money?” The assailant’s took his wallet, watch, and bracelet. They also took cash from the money bag he had from the employer and his personal cash. The Full Commission agreed with the Deputy Commissioner that the evidence failed to prove that the assault and robbery were directed at the claimant as an employee.

  Hostile Attacks

  Not applicable in Virginia. See Personal Animosity above.

  Retirement

  General Rule

  Not applicable in Virginia. Although there is no specific statute or Rule in Virginia with regard to retirement, the claimant has the burden of showing that any wage loss is attributable to partial or total disability arising out of a work accident. Thus, voluntary retirement might preclude the claimant from receiving future wage loss benefits.

  Proof of Voluntary Retirement

  Not applicable in Virginia.

  Misrepresentation of Employment Application

  In Virginia, it is a complete bar for entitlement to benefits if the employer can show a misrepresentation made by the claimant on the application for employment that has a causal relationship to the accident. To prevail, the employer must establish:

  (1) that the employee knew that the representation was false;

  (2) that the employer relied upon the false representation;

  (3) such reliance resulted in the consequent injury; and

  (4) that there was a causal relationship between the injury in question and the false representation.

  In McDaniel v. Tyson Foods, Inc., Record No. 1142-05-4, 2005 Va. App. LEXIS 357 (September 13, 2005), the Court of Appeals summarily affirmed the Commission’s finding denying benefits based upon claimant’s misrepresentations regarding his medical history during the job application. Claimant had four prior Workers’ Compensation claims involving back injuries before his employment with the employer. The head nurse for the employer testified that all new employees are asked certain questions regarding their physical capacity when determining their clearance to perform various jobs. The head nurse indicated that the claimant was hired to perform heavy physical labor in the employer’s plant and that the claimant would not have been put in that position if she had been made aware of his prior back problems. Further, claimant acknowledged that he had intentionally misrepresented his medical history when seeking work with the employer. Specifically, he agreed that he did not disclose previous injuries to his back.

  Idiopathic Falls

  An idiopathic condition is a personal, pre-existing condition of the claimant. Idiopathic falls are not compensable in Virginia. However, if an added-risk of the employment enters into the causal chain to make the risk or consequence more serious, then the injuries will be covered. In Peck v. RG Mgmt. Servs., Inc., Record No. 1401-06-4, 2006 Va. App. LEXIS 448 (October 10, 2006), the Virginia Court of Appeals held that a claimant who fell from a curb after suffering a seizure failed to establish that the curb was “incidental to the character of the business and not independent of the employment relationship.

  Two Causes Rule

  Virginia follows the two-causes rule – the employer will be responsible for payment of indemnity if disability has two-causes, one related to employment and one unrelated. Stated differently, indemnity will be owed if disability is at least, in part, caused by injuries from the work accident.

  However, pursuant to American Furniture Company v. Doane, 230 Va. 39 (1985) and its progeny the employer is generally not responsible for the effects of unrelated conditions that manifest after the compensable work accident. It is advisable in these situations that the employer obtain a clear statement from the attending physician (1) that certain conditions are unrelated to the work accident and manifested themselves after the work accident and (2) as to claimant’s work capacity excluding any disability which is the result of unrelated conditions that manifested after the accident. The employer should then offer light work to the claimant within the allowed work capacity (again related to work accident only and excluding any disability due to conditions that manifested themselves after the work accident) and if refused, file an application for refusal of selective employment.

  BENEFITS

  Calculation of Average Weekly Wage

  • Average Weekly Wage is calculated by the earnings of injured employee during the 52-weeks preceding industrial accident divided by 52.

  •       May include combined earnings from similar employment held at time of work accident

  •       If there is not a sufficient period of employment preceding accident (good rule of thumb: less than 3 days) must use earnings of similar employee

  •       Must remove periods in which there are more than seven consecutive days without pay

  •       Maximum/minimum compensation rates apply

  •       Value of perquisites. Perquisites are generally additional items provided to the employee by the employer in lieu of wages. Examples include a uniform, payment for meals and lodging. The Commission previously used a schedule to assign values to perquisites. On June 9, 2005 the Commission rescinded the schedule of perquisites. The Commission now requires that evidence of the value of perquisites be submitted.

  Pursuant to Section 65.2-509 of the Act, no indemnity compensation is due for the first seven calendar days of incapacity resulting from an injury except the benefits provided for in Section 65.2-603; but if incapacity extends beyond that period, compensation shall commence with the eighth day of disability. If, however, such incapacity shall continue for a period of more than three weeks, then compensation shall be allowed from the first day of such incapacity.

  Total Disability

  Temporary Total Disability (TTD) 65.2-500

  When incapacity from work is total, the employer shall pay 66 and 2/3% of average weekly wage (AWW). (Multiply AWW by .6667). Note, however that if the AWW is below the minimum compensation rate then you are to pay the claimant their average weekly wage instead. The claimant is not bumped up to the minimum compensation rate. Further, be certain that the resulting compensation rate does not exceed the applicable maximum compensation rate.

  Permanent total incapacity (PTD) - Section 65.2-503

  Awarded for loss of two body parts in the same accident, injury resulting in total paralysis, or brain injury rendering the employee permanently unemployable in gainful employment.

  Maximum/Minimum Compensation Rates and COLA

  Effective July 1, 2013……….…..$955.00/$238.75

  Effective July 1, 2012……….…..$935.00/$233.75

  Effective July 1, 2011…………...$905.00/$226.25

  Effective July 1, 2010…………...$885.00 / $221.25*

  Effective July 1, 2009 …………..$895.00 / $223.75

  Effective July 1, 2008 …………..$841.00 / $210.25

  Effective July 1, 2007 …………..$816.00 / $204.00

  Effective July 1, 2006 …………..$773.00 / $193.25

  Effective July 1, 2005 …………..$736.00 / $184.00

  Effective July 1, 2004 …………..$706.00 / $176.50

  *This is the first year that minimum and maximum compensation rates have decreased.

  Look at the date the accident occurred to determine which rate applies.

  Minimum compensation rate:

  Example:

  DOA: 8/1/08

  Minimum Comp Rate: $210.25

  Claimant’s AWW: $180.00

  Claimant’s Comp Rate: $180.00

  Partial Disability

  Temporary Partial Disability (TPD) (Section 65.2-502)

  When incapacity from work is partial, the employer shall pay 66 and 2/3% of the difference between the AWW before the injury and amount the claimant is able to earn after the injury.

  Selective (or Light Duty) Employment

  The claimant has a duty to accept employer provided or procured light duty or risk suspension of benefits if the refusal is unjustifiable.

  Permanent Partial Disability Benefits/Scarring & Disfigurement

  •       Functional loss of use Section 65.2-503

  •       Virginia has schedule of eligible body parts

  •       Must have reached maximum medical improvement

  Permanent Partial Disability Benefits

  The claimant is entitled to permanent partial disability benefits pursuant to Va. Code Section 65.2-503 when he or she has reached maximum medical improvement and has been provided a rating. The schedule of ratable body parts is as follows:

  Arm .....................................................................200

  Hand....................................................................150

  Foot ....................................................................125

  Leg .....................................................................175

  Severely marked disfigurement..............................60

  Pneumoconiosis (first stage)..................................50

  Pneumoconiosis (second stage).........................100

  Pneumoconiosis (third stage) .............................300

  Byssinosis ....................................... .....................50

  Thumb....................................................................60

  First Finger (index finger).......................................35

  Second Finger ................................................... ...30

  Third Finger ....................................... ...................20

  Fourth Finger..........................................................15

  Great Toe ...............................................................30

  Any other Toe..........................................................10

  Note that there is no rating to the back or for whole body impairment in Virginia.

  To calculate permanency multiply the allowed number of weeks set forth in the statute by the rating offered by the physician. For example, a 10% rating to the arm would yield an entitlement of 20 weeks of benefits (200 multiplied by .10). It should be noted that permanent partial disability benefits may not be simultaneously paid while claimant is receiving temporary total disability benefits. They may be simultaneously paid while claimant is receiving temporary partial disability benefits.

  In Virginia, cases may be settled before a permanency rating is obtained. Also, Virginia is not an MMI state; hence, indemnity exposure may extend beyond date permanency is awarded.

  Impairment Rating

  The VWCC relies on the opinions of physicians in accordance with AMA Guidelines and the Act to quantify the level of disability for a specific body part. Refer to Permanent Partial Disability Benefits.

  Vocational Rehabilitation

  •       Duty to cooperate or risk suspension of benefits

  •       The carrier may retain the services of a vocational rehabilitation counselor to assist the claimant in returning to work.

  •       If the claimant unjustifiably fails to cooperate with vocational rehabilitation, then the carrier may seek to suspend benefits. A refusal is most often shown when there are repeated missed appointments with the vocational rehabilitation counselor and/or a failure to follow-up on pre-screened job leads. The applicable statutory provision is Va. Code Section 65.2-603.

  •       Vocational rehabilitation is generally useful in those situations where the pre-injury employer is not willing to offer light duty employment and it appears unlikely that the claimant is going to be released in the near future by the attending physician back to the pre-injury job.

  •       Be sure that your vocational rehabilitation counselor is familiar with Virginia’s Vocational Rehabilitation Guidelines. Also request that reports be sent to you (and not counsel for the claimant) and that an aggressive plan be set in place that includes in-person regular meetings between the claimant and the counselor.

  •       The Commission has adopted the following guidelines for vocational rehabilitation:

  The Guidelines can be found at the Commission’s website under “Helpful Resources,” then “Rules, Regulations & Policies,” and “Vocational Rehabilitation Guidelines.”

  Return to Work with Loss of Earnings

  Refer to Temporary Partial Disability in Partial Disability.

  Earning Power Assessment

  Not applicable in Virginia.

  Employer Job Offer

  If, in the opinion of the claimant’s treating physician, an employee is partially disabled, an employer job offer must be (1) a bona fide job offer suitable to the employee’s capacity; (2) procured for the employee by the employer. Cheryl A. Moore v. VCU Health System , Record No. 0943-10-2, 2010 Va. App. LEXIS 400 (Va. Ct. App. October 12, 2010). If a claimant “unjustifiably refuses” selective employment offered by the employer, the carrier may suspend or terminate payment of indemnity benefits by “curing” their refusal (i.e. returning to work). Once the employer has produced sufficient evidence to establish that it offered the claimant suitable employment relating to the compensable claim, the burden then shifts to the claimant to demonstrate that they were justified in refusing the employer’s offer. Wal-Mart and Insurance Company of the State of Pennsylvania v. Poorman, 60 Va. App. 84, 724 S.E.2d 212 (April 24, 2012).

  Vocational Expert

  The Commission does not license vocational rehabilitation providers. However Va. Code Section 65.2-603 provides that vocational rehabilitation services that involve the exercise of “professional judgment” must be provided by a certified rehabilitation provider pursuant to Va Code Section 54.1-3510, or by a person licensed by the Boards of Counseling; Medicine; Nursing; Optometry; Psychology; or Social Work or, by a person certified by the Commission on Rehabilitation Counselor Certification (CRCC) as a certified rehabilitation counselor (CRC) or a person certified by the Commission on Certification of Work Adjustment and Vocational Evaluation Specialists (CCWAVES) as a Certified Vocational Evaluation Specialist (CVE).

  Va. Code Section 54.1-3510 defines a “certified rehabilitation provider” as a person who is certified by the Board as possessing the training, the skills and the experience as a rehabilitation provider to form an opinion by discerning and evaluating, thereby allowing for a sound and reasonable determination or recommendation as to the appropriate employment for a rehabilitation client and who may provide vocational rehabilitation services under the workers’ compensation code that involve the exercise of professional judgment.

  The code further defines "professional judgment" as consideration of the client's level of disability, functional limitations and capabilities; consideration of client aptitudes, career and technical skills and abilities; education and pre-injury employment; and identification of return-to-work options and service needs which culminate in the determination or recommendation of appropriate employment for the rehabilitation client

  Marketing Requirement

  •       A claimant that is not under an indemnity Award who has been provided light duty restrictions must be actively marketing his or her residual work capacity in order to be entitled to indemnity benefits.

  •       A claimant under an open temporary partial Award, who is then laid off from his job, has a duty to market.

  •       A claimant under an award for temporary total has no duty to market.

  •       If the period during which the claimant is not under an indemnity award and had light duty restrictions is short (approximately one to two weeks) the claimant is not likely required to market during that period.

  •       The Commission has published guidelines for acceptable marketing that are set forth below.

  1. Good faith search for work

  An employee who is partially disabled – ie., unable to perform his or her regular job, but able to perform light duty work – is required to seek light duty work in good faith in order to receive disability benefits if he or she is not on an open award.

  2. Factors the Commission considers

  In deciding whether a partially disabled employee has made a reasonable effort to find suitable light duty employment the Commission considers such factors as : (1) the nature and extent of the disability; (2) the employee’s training, age, experience and education; (3) the nature and extent of the job search; (4) the availability of jobs in the area suitable for the employee considering his disability; (5) any other matter affecting the employee’s capacity to find suitable employment.

  3. Evidence of reasonable effort

  It is presumed that in most cases the claimant made a reasonable effort to market residual work capacity when he or she (a) registered with the Virginia Employment Commission within a reasonable time after being released to return to work and (b) directly contacted at least five potential employers per week where the employee has a reasonable basis to believe that there might be a job available that he or she might be able to perform[2] and (c) if appropriate; contacted the pre-injury employer for light duty work.

  4. Keep a job search record

  Information provided by the injured worker about job contacts should be supported by facts, preferably in writing, about the names of the employers contacted; where the employers are located; the date(s) the contact was made; whether the contact was in person, by phone or via internet; and the result of the contact.

  5. Pre-injury skills or experience

  Where an injured worker has particular job skills or training, he or she may focus the search on jobs in that field if there are jobs in that field that the employee can reasonably perform. However, if within a reasonable amount of time the search is not successful, the employee must broaden the search beyond that field.

  6. Method of Contacting Employers

  Employer contacts should be conducted in a manner reasonably suited to the position sought, which in some cases may be personal visits. In other cases, contacts may be by phone, internet, mail, or through employment agents such as union hiring halls.

  7. Attempt to maximize earnings

  If the employee locates and takes a job that pays substantially less than his or her pre-injury job, the employee should continue looking for a higher paying job.

  These vocational rehabilitation guidelines can be found at the Commission’s website under “Helpful Resources,” then “VWC Rules, Regulations & Policies.”

  500-Week Cap (Section 65.2-518)

  There is a 500-week cap for benefits (TTD, TPD and PPD). No cap for PTD, indemnity can extend over the claimant’s lifetime.

  Amputation or Loss of Use

  Pursuant to Section 65.2-503 of the Act:

  A. Compensation for permanent partial and permanent total loss and disfigurement shall be awarded as provided in this section.

  B. The following losses shall be compensated for the period specified at the rate of 66 2/3 percent of the average weekly wage as defined in Section 65.2-101:

C.       Compensation shall be awarded pursuant to Section 65.2-500 for permanent and total incapacity when there is:

i.        Loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof in the same accident;

ii. Injury for all practical purposes resulting in total paralysis, as determined by the Commission based on medical evidence; or

iii. Injury to the brain which is so severe as to render the employee permanently unemployable in gainful employment.

iv. In construing this section, the permanent loss of the use of a member shall be equivalent to the loss of such member, and for the permanent partial loss or loss of use of a member, compensation may be proportionately awarded.

Compensation shall also be awarded proportionately for partial loss of vision or hearing.

D. Except as provided in subsection C, the weekly compensation payments referred to in this section shall be subject to the same limitations as to maximum and minimum as set out in Section 65.2-500.

i. Compensation awarded pursuant to this section shall be payable after payments for temporary total incapacity pursuant to Section 65.2-500.

ii. Compensation pursuant to this section may be paid simultaneously with payments for partial incapacity pursuant to Section 65.2-502.Where compensation pursuant to this section is paid simultaneously with payments for partial incapacity pursuant to Section 65.2-502, each combined payment shall count as two weeks against the total maximum allowable period of 500 weeks.

Disfigurement/Scarring

2. Scarring & Disfigurement- Section 65.2-503

•       Severely marked scarring and disfigurement

•       Maximum of 60 weeks

•       Cannot stack with functional loss rating,

Loss of Sight

Snellen’s Chart

Loss of Hearing

RULE 12 HEARING LOSS TABLE

A table for determining compensable percentage of hearing loss shall be promulgated by the Commission.

All determinations are to be made (i) without the use of a hearing aid; and (ii) with a puretone audiometer by air conduction alone.

Hearing loss in decibels is to be recorded at 500, 1,000, 2,000 and 3,000 cycles per second. The audiometer must be calibrated to the ANSI 1969 standard.

The average decibel loss is to be translated into percentage of compensable hearing loss of each ear according to the following table:

No allowance for presbycusis is to be made.

Penalties

Pursuant to Section 65.2-524 of the Ace, the defendants are subject to a penalty for any payment not made within two weeks after it becomes due of 20% of the unpaid amount, unless the Commission finds that any required payment has been made as promptly as practicable and (i) there is good cause outside the control of the employer for the delay or (ii) in the case of a self-insured employer, the employer has issued the required payment to the employee as a part of the next regular payroll after the payment becomes due.

Interest

Not applicable in Virginia.

Costs

Pursuant to Section 65.2-713

A. If the Commission or any court before whom any proceedings are brought or defended by the employer or insurer under this title shall determine that such proceedings have been brought, prosecuted, or defended without reasonable grounds, it may assess against the employer or 6insurer who has so brought, prosecuted, or defended them the whole cost of the proceedings, including a reasonable attorney's fee, to be fixed by the Commission.

B. Where the Commission finds that an employer or insurer has delayed payment without reasonable grounds, it may assess against the employer or insurer the whole cost of the proceedings, including a reasonable attorney's fee to be fixed by the Commission. In such a case where an attorney's fee is awarded against the employer or insurer, the Commission shall calculate and add to any award made to the claimant interest at the judgment rate, as set forth in Section 6.2-302, on the benefits accrued from the date the Commission determined the award should have been paid through the date of the award.

C. Where the Commission finds that an employer or insurer has filed an application for a hearing in bad faith, it shall assess against the employer or an insurer an amount up to ten percent of the total amount of the benefits accrued from the date the Commission determined the award should have been paid through the date of the award. This payment shall be in addition to any costs, fees, or awards as set forth in subsection B.

Counsel Fees

Pursuant to Section 65.2-714 of the Act, the Commission can award reasonable fees for attorneys, physicians, and hospitals, in addition to ordering the repayment of any such fees that the Commission finds excessive.

Death Benefits

When death results from the work accident within 9 years from the date of injury, the following benefits are available under the Act:

•       Total dependents can collect up to 500 weeks of indemnity benefits.

•       If there are no total dependents (as defined in the statute) up to 400 weeks of indemnity.

•       Burial expenses up to $10,000.00.

•       Costs for transportation of the body up to $1,000.00.

Widow/Widower

Death Benefits to Dependents- Section 65.2-512

1. Benefits only available if death is a result of a compensable accident and occurs within nine years of the accident,

2. claim within two years of death

3. 400 or 500 weeks of benefits-depending upon level of dependency (partial or total)

4. Burial expenses not to exceed $10,000 and transportation expenses of deceased not to exceed $1,000

Death benefits of up to 500 weeks are available to total dependants and up to 400 weeks for partial dependants. As to a spouse, actual dependency must be shown.

Sifford v. Barker Leasing Corporation, Inc., 58 Va. App. 722, 716 S.E.2d 128 (October 10, 2011)

The Court of Appeals reversed the finding of the Full Commission and held that claimant's wife was indeed entitled to death benefits. The Full Commission had held that the claimant had not established dependency. The Court of Appeals held that this was an error. The couple had entered into a written settlement agreement on May 5, 2008 which stated the parties' intent to resolve their respective rights and duties as to custody and support of their children as well as support for each other. The fatal accident occurred on September 24, 2008. The wife had returned to work as a part-time teacher's aide on September 15, 2008. The settlement agreement provided that each spouse waived spousal support but did make accommodations related to numerous expenses including payment by the husband of the house payment, health insurance, homeowner's insurance, life insurance, taxes, utilities, cable bill, and cell phone bill. The parties also shared a joint checking account. The Court of Appeals noted that the Commission erred in focusing on the purpose of the settlement agreement rather than the effect of that agreement. The Full Commission had concluded that the agreement was to benefit the child. The Court of Appeals noted that they did not dispute that finding; however, the effect of the agreement was to provide regular support to the spouse as well. The Court of Appeals held that the uncontroverted evidence in the case supported the spouse's claim for death benefits since she did rely upon her husband to maintain her accustomed standard of living. The Court of Appeals observed that she lived in the marital home rent-free. Further, that the decedent had paid all household expenses, including the mortgage, utility and cable bills. Further, he also paid all taxes. The decedent also carried dental and health insurance on both the wife and the children. He also paid for insurance on wife's car and paid her cell phone bills. The Court of Appeals noted that whether a spouse voluntarily has agreed to forfeit spousal support is a matter that is legally distinct from the question of whether the spouse is actually dependent under Virginia Code Section 65.2-512.

Runyon v. CBS Constr. Co., Record No. 1720-10-2, 2011 Va. App. LEXIS 64 (February 22, 2011)

The Court of Appeals affirmed the finding of the Commission that the claimant was not entitled to death benefits. The Court of Appeals agreed with the Commission that the spouse did not prove that she was actually dependent upon the decedent. The spouse had separated from the decedent prior to his death and at the time of his death, was neither receiving nor relying upon financial support from him. The Court of Appeals held that there was credible evidence that supported the Commission’s factual finding that the claimant was not dependent as defined in Virginia Code Section 65.2-515(A)(1). Further, the Court of Appeals affirmed the finding of the Commission that the claimant was also not entitled to permanent partial disability benefits which the decedent would have been entitled to receive during his lifetime, pursuant to Virginia Code Section 65.2-511 The Court of Appeals held that the Commission properly found that Virginia Code Section 65.2-511 only authorizes an award to a statutory dependent.

Dunnavant v. Newman Tire Co., 51 Va. App. 252, 656 S.E.2d 431 (February 12, 2008)

The Court of Appeals affirmed the finding of the Commission that the claimant, a friend of the deceased, failed to establish that he was a dependent pursuant to Va. Code Section 65.2-516 and thereby entitled to death benefits. The Court of Appeals found that the claimant was a friend unrelated to the employee and did not fit within the first class of individuals conclusively presumed to be dependents under the Va. Code Section 65.2-515(A), and that the friend failed to meet his burden of proving his status as a dependent within the second class of individuals covered by Va. Code Section 65.2-516. Although the friend claimed to have been declared disabled by the Social Security Administration, the Court observed that his conspicuous lack of easily available corroborating evidence did not support his claim that he was not medically prevented from earning a livelihood and in need of support from the employee or anyone else. The Court of Appeals agreed with the Commission’s determination that the evidence established nothing more than the existence of a mutually assisted relationship between two friends and further observed that a shared living arrangement alone did not qualify the friend as a dependent.

Death Benefits/Children

See Death Benefits above.

Death Benefits/Parents and Siblings

See Death Benefits above.

Death Benefits/Amounts of Benefits

See Death Benefits above.

Medical Benefits

Pursuant to Section 65.2-603, employees are entitled to reasonable, necessary and related medical care for compensable injuries.

The employee must select physician from panel of three (Section 65.2-603), and the panel must be tendered within reasonable time after accident.

a.The panel must include specific names of doctors from different practice groups

b.Not appropriate when claim denied

c.Carrier not responsible for unauthorized medical care unless emergency care

Medical Bill Reimbursement

For accepted claims, the carrier is not responsible for the charged medical amount by the provider, but instead is responsible for reimbursement of charges at the prevailing community rate unless there is a contract with the provider in which case the contract shall control. The applicable statutory provision is Va. Code Section 65.2-605.

•       Carriers doing business in Virginia should have a company that reviews medical bills for proper reimbursement.

•       Virginia is not a fee schedule state, nor is it a “usual and customary state.”

•       When you receive an application filed by a medical provider, you should immediately contact your medical bill review company about the basis for reduction.

•       The only permissible basis for a reduction in Virginia are:

o Prevailing community rate

o Pursuant to contract

• Immediately procure a copy of the contract, if any, or begin the process to secure data on the prevailing community rate.

•Deadlines approach quickly in this area, you are permitted to request an evidentiary hearing within 10 days of the date noted in the Commission’s letter.

•       Grounds for seeking an evidentiary hearing typically include:

o The need to conduct discovery

o The necessity of expert witnesses testimony or other testimony.

Refusal of Medical Treatment

An unjustified refusal of medical treatment will permit the employer to seek suspension of indemnity benefits. The Commission analyzes whether or not a refusal was justified from the perspective of the claimant.

7-Eleven, Inc. and Indemnity Insurance Company of North America v. Fore, Record No. 1722-12-2 (March 26, 2013)

The Court of Appeals affirmed the finding of the Commission that claimant did not unjustifiably refuse medical treatment. Claimant's treating physician recommended an osteotomy. The claimant refused to have this surgery because surgery was painful and there was no guarantee that the procedure would make her pain better. The Deputy Commissioner had suspended benefits finding an unjustified refusal of medical treatment. The Court of Appeals reversed and the Court of Appeals affirmed the finding of the Full Commission. The Court of Appeals noted that justification is a factual determination made upon an objective view of all the circumstances as they reasonably appear to the claimant. The claimant had undergone a previous surgery that resulted in her suffering extreme pain that left her debilitated for one week. The Court of Appeals noted that the Commission is not required to accept a claimant's bare fear of a particular medical treatment as sufficient justification. However, the Court of Appeals held that there was specific evidence in the record that explained claimant's refusal to undergo the osteotomy. The Court of Appeals noted that claimant's first surgery was very painful and that her treating physician described the second surgery as "brutal."

Yates v. Fairfax (County of) Board of Supervisors, JCN 234-99-91 (May 4, 2012)

The Full Commission affirmed the finding of the Deputy Commissioner that claimant's positive test for cocaine and marijuana demonstrated a refusal of medical care. The Full Commission noted that it was uncontradicted that claimant verbally agreed to abide by the doctor's pain management contract.

Wilson v. County of Fairfax Sch. Bd., VWC File No. 205-72-35 (May 27, 2009)

The Full Commission affirmed the finding of the Deputy Commissioner that claimant refused medical treatment justifying termination of her indemnity Award. The employer alleged that the claimant specifically failed to attend physical therapy and counseling sessions. Evidence was put forward that she cancelled 15 of 51 physical therapy visits, and had six no-shows and repeated late arrivals. The Full Commission agreed with the Deputy Commissioner that the claimant’s refusal was conscience and willful, justifying a finding that the claimant refused medical treatment and that claimant did not prove adequate justification for her non-compliance.

Refusal To Cooperate With IME

The employer may require that the claimant attend an independent medical evaluation scheduled at a reasonable time and place pursuant to VA Code Section 65.2-607. It is necessary to secure an authorization from the Commission to have a claimant undergo more than one independent medical evaluation per specialty. Failure to comply with an IME will permit employer to seek suspension of compensation.

Sherwin Williams Co. v. England, Record No. 2156-05-4, 2006 Va. App. LEXIS 157 (April 25, 2006)

Court of Appeals reversed the Opinion of the Commission. Claimant appeared for an examination at an orthopedic clinic and was given a six-page form to complete. Claimant refused to complete the four pages asking for a medical history in the absence of his attorney. The nurse rescheduled the examination and sent a copy of the form to the attorney with a request that the attorney advise her of any concerns about the form. Neither the attorney nor the claimant advised her of any concerns. When the claimant appeared for the appointment, he brought only the first two pages of the form, on which he had indicated only his name, the date, the date of his injury, his age, and his usual type of work. Claimant told the nurse he would answer all of her questions orally but that he "just would not fill it out." The second examination did not proceed. The Court held that it was reasonable to have the claimant provide information about his injury and his medical history and that his refusal to do so had prevented the second examination. Although claimant was justified in refusing to complete the part of the form that obligated him to pay for any balance due, this did not justify his refusal to complete the medical history portion.

Refusal To Cooperate With Vocational Rehabilitation

An unjustified refusal to cooperate with vocational rehabilitation will permit an employer to suspension of indemnity benefits.

Ilg v. United Parcel Service, Inc., et al., 284 Va. 294, 726 S.E.2d 21(June 7, 2012)

The Supreme Court reversed the Court of Appeals. The issue presented was whether employee should be permitted to offer evidence that refusal is justified because of a disabling injury which arose out of the same industrial accident for which he was awarded benefits, but which was not expressly designated in the award as a compensable injury. The parties agreed to an accepted injury to the right knee. Claimant was given light duty restrictions for the right knee however was taken totally out of work when considering injuries to his hand. No adjudication ever occurred as to whether the hand was related to the work accident but claimant had filed a claim alleging injury to the hand as a result of the work accident. The Supreme Court noted that the rationale of Doane did not resolve the inquiry before them because Ilg's asserted justification for refusing to participate in vocational rehabilitation was for reasons that were not "unrelated to the original industrial accident." The Supreme Court held that the Court of Appeals erred in determining that Ilg was precluded from asserting that his refusal of vocational rehabilitation was justified because he remained fully disabled by his hand injury related to the industrial accident for which he was receiving benefits for his compensable knee injury. The Supreme Court noted that because there had not been a determination by the Commission as to whether the disability related to Ilg's right hand in 2008 was, in fact, causally related to the 2007 accident, they expressed no opinion on that issue and remanded the case to the Court of Appeals for remand to the Commission for an evidentiary proceeding where the burden would be on Ilg to show that his refusal to participate in vocational rehabilitation was justified in light of his hand injury.

Cerros v. R. Bratti Assoc., Inc., VWC File No. 210-05-69 (November 14, 2008)

The Full Commission affirmed the finding of the Deputy Commissioner that claimant failed to cooperate with vocational rehabilitation justifying suspension of benefits. The Full Commission found that the claimant’s vocational rehabilitation counselor provided credible evidence of a lack of good faith effort made by the claimant. The Full Commission observed that the evidence established actions that reflected the claimant’s intent to sabotage the job search efforts, including his refusal to complete an application that required a credit check, his refusal to return to a prospective employer to continue interviewing for a specific position and his repeated failure to return telephone calls to his case managers. Further, the Full Commission observed that the claimant appeared to have sabotaged certain interviews by falsely asserting that he could not speak or understand English.

Cost of Living Adjustments (COLA)

Effective Date

COLA increases are effective October 1st of each year and apply to outstanding awards where the accident occurred or diagnosis (for diseases) was made before July 1 of that same year.

Qualifications

•       COLA increases do NOT need to be made automatically each year. The claimant should request a COLA increase, and must also qualify before one should be given.

•       If pro se (unrepresented) claimants are not requesting COLAs, they do not need to be paid. However, reserves should be increased to account for the cost of COLAs should they be awarded later.

•       Claimants who do not receive Social Security benefits qualify for COLAs.

•       Be mindful that a claimant may not receive more than the maximum compensation rate with any adjusted compensation rate due to COLA.

•       If the claimant does receive Social Security, they generally will not qualify for a COLA unless their compensation rate plus the amount of Social Security received is less than eighty percent of the average monthly earnings of the claimant before disability or death.

•       The Commission can require the claimant to present evidence that they are not receiving Social Security to qualify for a COLA increase.

Calculating COLA

•       The claimant is not entitled to a COLA increase if their social security disability payment and their basic indemnity award (not including any past COLA increases) is equivalent to 80% or more of their average monthly wage.
•       Social security retirement (also known as “old age insurance”) benefits do not count towards this determination. Additionally, the claimant can deduct any costs for Medicare from the amount of Social Security Disability they receive. So if the claimant gets $1,000 in SSD per month, but pays $100 a month for Medicare, their total monthly SSD income for the purposes of the COLA statute is only $900.
•       Calculating 80% of the average monthly wage is not an easy task, and the result can vary depending on how you calculate it. In Fleming v. Pitt Des Moines, a September 16, 2009 Full Commission case, the Commission set forth the following calculation that is used to determine the average monthly wage for purposes of calculating COLA.

Average Monthly Wage Calculation

Take the average weekly wage and multiply it by 52.1429. The result is then divided by 12 to determine the average monthly wage. Then multiply the average monthly wage by .80 to determine the 80% threshold. Compare this result to the result of the next calculation.

SSD & Basic Indemnity Award Calculation

Take your base compensation award (the original comp rate before any prior COLA’s) and multiply by 52.1429. The result of that is then divided by 12. Take that result and add the claimant’s monthly social security disability benefits. If the total is less than the result of the average monthly wage calculation above, then the claimant is entitled to COLA.

The COLA rate is adjusted each year and can be found on the Commission’s website, under “Helpful Resources,” then “Customer Assistance & Mediation,” and “Max/Min Benefit Amounts.”

Past COLA increases:

Medicare Set Asides

Medicare’s interests must be taken into account in all workers’ compensation settlements; however, a Medicare Set Aside is not always required.

Who qualifies for Medicare?

•       Any person 65 years of age or older is automatically Medicare eligible.
•       A person of any age who has received Social Security Disability (“SSDI”) benefits for 24 months or longer, becomes automatically Medicare eligible. Medicare’s interests should be taken into account in all cases.

Medicare Set Asides:

•       There is a difference between when a set aside is needed and when a set aside may be submitted to CMS for review.
•       You may need to have a set aside, but it might not meet the thresholds for review and approval by CMS.

When Should a Set Aside Be Submitted to CMS for Approval?

•       The claimant is currently a Medicare beneficiary and total settlement amount is greater than $25,000.00; or
•       The claimant has a reasonable expectation: of Medicare enrollment within 30 months of the settlement date and the anticipated total settlement amount for future medical expenses and disability/lost wages over the life or duration of the settlement agreement is expected to be greater than $250,000.00.
•       The parties are not required to submit a MSA to CMS when it meets the above thresholds; however, it is recommended by CMS that any MSA meeting these thresholds be submitted for review.

When is a $0 Set Aside Appropriate? It may be appropriate in several circumstances. Here are some common scenarios:

•       If the claimant’s claim is denied AND no payments have been made for medical treatment.
•       If the claimant is deceased.
•       If there is no expectation that the claimant will be treating for this injury when they reach Medicare eligibility.

What are Conditional Payments?

•       When Medicare pays for medical treatment but another payer is responsible for those payments.
•       Medicare has the right to recover conditional payments from primary payers.
•       Once settlements are approved, the parties have 60 days to reimburse Medicare for conditional payments that were primarily the responsibility of the insurer.
•       Before settlement, the parties often receive conditional payment letters notifying them of Medicare’s lien.
•       This is not a final lien amount. The lien can still increase.
•       If you do not agree that you are responsible for treatment included in the conditional payment lien, you can respond to Medicare disputing the payment.

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De facto Awards

Definition

•       A de facto award exists when a substantial amount of voluntary indemnity (lost wages) has been paid to the claimant, without forms being entered.
•       There is no exact rule regarding how many weeks of voluntary payments will equate to a de facto award.
•       Voluntary payment of medicals only will not result in a de facto award, however, voluntary payment of indemnity may, generally where agreement forms were never tendered and no defenses to original compensability exist.

Avoiding a De facto Award

•       Case law indicates that even if substantial voluntary payments have been made to a claimant without the entry of forms, disputing the initial compensability of the accident, or showing that there is a dispute regarding the average weekly wage at the time of the hearing will avoid a de facto award.
In order to avoid a de facto award, it is best to play it safe and not voluntarily pay indemnity benefits for an extended period.

Mileage Reimbursement

•       The mileage reimbursement rate effective since October 1, 2011, is 55.5 cents per mile.
•       Mileage reimbursements need to be made only after request is made by claimant. Mileage associated with travel to medical appointments, meetings with assigned vocational rehabilitation provider and associated with searching for light duty work all are eligible.
•       The carrier is not responsible for mileage associated with marketing. Placiotis v. Cunningham Bros. Used Auto Parts, VWC File No. 229-90-31 (December 9, 2009)

Child Support

•       If you are served with a Child Support Order for a claimant under an indemnity Award, it should immediately be responded to according to the timeline set forth in the Order.
•       A copy of the Child Support Order should be forwarded to the Commission.
•       You must withhold benefits pursuant to the Order, presuming the Order is proper.
•       Settlements: A case can still be settled if you have received a Child Support Order. Special language must be included in the documents. Generally, we will have to withhold between 50-65% of the settlement amount to pay to child support (with the claimant still receiving 50-35% of the settlement amount). Often it is best to withhold the entire amount listed on the Child Support Order.
•       Even if the Child Support Order comes from a state other than Virginia, it may still be enforceable.

SUBROGATION OR CREDIT

General Rule

Subrogation is available when an injury is due to the fault of a third party. This most often includes defective products, motor vehicle accidents, and when injuries in the work place are caused by strangers to the employment (those outside of the trade, business, or occupation of the employee). In Virginia, claimant must secure the consent of the workers’ compensation carrier before settling with a third party. Failure to do so results in a forfeiture of ongoing workers’ compensation benefits. Virginia does not require formal intervention into a third party case, but it is wise to send written correspondence to third party counsel and carrier advising of lien rights. Subsequent letters should be sent to the extent the lien number increases.

Attorney’s Fee

Pursuant to Va. Code Section 65.2-311, when a claimant brings a third party claim and the employer/carrier assert subrogation interests, the reasonable expenses and attorney’s fees of the claimant are apportioned pro rata between the employer and employee when a recovery occurs through either judgment or voluntary settlement. This does not apply if the employer is required to institute an action against a third party for some or all of its lien.

Motor Vehicle Accidents

Motor vehicle accidents are a common cause for a third party action that triggers the subrogation rights of the workers’ compensation employer and carrier.

Health Benefits

The employer/carrier’s lien includes the amount it has paid or is liable to pay under the Act in medical costs, surgical costs, and hospital attention.

Credits

Pursuant to Va. Code Section 65.2-309, when a claim for injury is brought against an employer/carrier, it creates statutory lien on behalf of the employer/carrier against any verdict or settlement in a suit the claimant may have against any other party for the injury. If the claimant receives proceeds from a third party suit, or settlement without satisfying the employer’s lien, the employer has the right to recover its lien either by a credit against future workers’ compensation benefits or through a civil action against the person who received the proceeds. The employer/carrier’s lien includes compensation (temporary total, temporary partial, permanent partial, permanent total), medical, surgical, hospital attention, and funeral expenses. It does not specifically include nurse case management costs or vocational rehabilitation. However, an argument can be made to include vocational rehabilitation costs, mileage reimbursements, etc. If the third party settlement exceeds the lien amount, a suspension of the Commission Award is appropriate with the carrier responsible for a percentage (determined based upon attorney’s fees and costs) of incurred medical and indemnity moving forward until the third party settlement amount is exhausted.

ATTORNEYS

Certifying Organization

Certifying Organization

The Virginia State Bar (VSB) was established in 1938 by the Virginia General Assembly, and is an administrative agency of the Supreme Court of Virginia. The Virginia State Bar is a mandatory bar that regulates the legal profession of Virginia. There is no workers’ compensation specialty license in Virginia.

Required Documentation

The Virginia Board of Bar Examiners is an agency of the Supreme Court of Virginia that is responsible for licensing those applicants that meet the requirements for being attorneys. An applicant for a Virginia Bar Examination shall:
(A) Have received a juris doctor degree from a law school approved by the American Bar Association, or the Board; or
(B) Be enrolled and in good standing in any such approved law school and, in the course of regular study, complete ALL degree requirements prior to the time such examination is given; or
(C) Have been approved by the Board and thereafter completed the required period of law study as set forth in the of the Virginia Board of Bar Examiners.
Before becoming licensed, applicants must also pass a character and fitness determination made by the Board of Bar Examiners. Additionally, all applicants must also pass the Multistate Professional Responsibility Examination that is administered by the National Conference of Bar Examiners.

Additional Information

In order to remain in good standing, all active Virginia attorneys must complete, on annual basis, 12 hours of Continuing Legal Education, including 2 hours of ethics/professionalism and 4 hours of live, interactive programs.

CLAIMS PROFESSIONALS

Claims professionals are not required to be licensed in Virginia in order to manage and adjust workers’ compensation claims. There is no licensing or continuing education requirement.

LITIGATION AND APPEAL

Workers’ Compensation Judge Proceedings

Office of Adjudication

The Commission is an agency of Virginia that administers the Virginia Workers' Compensation Act Va. Code Section 65.2-101 et. seq. In addition, the Commission administers the Criminal Injuries Compensation Fund and the Birth-Related Neurological Injury Program. The Commission's Judicial Department is charged with handling all adjudication activities relating to workers’ compensation disputes in Virginia. This Department governs evidentiary hearings and “On-the-Record” hearings, reviews and approves compromise settlements, and handles the mediation process. The Commission is governed by Deputy Commissioners at the trial level, and Commissioners at the direct appeal level. Throughout Virginia, twenty-two Deputy Commissioners hold evidentiary hearings and preside over On-the-Record hearings to resolve disputes arising under the Act. The Commission is governed by three Commissioners, which are chosen by the Virginia General Assembly to serve six-year terms. Roger L. Williams, Wesley G. Marshall, and R. Ferrell Newman currently serve as Commissioners. The Commissioners elect a Chairman for a term of three years. Mr. Williams is currently the Chairman.

Appointment of Workers’ Compensation Judges

The Full Commission is comprised of three Commissioners. These Commissioners are appointed by the General Assembly of Virginia. Deputy Commissioners are hired by the Commission.

Qualifications of WCJ

Both Commissioners and Deputy Commissioners must be Virginia licensed attorneys and have practiced workers’ compensation law for 15 years.

Procedure

Proceedings before the VWCC are governed by the Rules of the Virginia Workers’ Compensation Commission, which are meant to identify and resolve disputed issues through informal dispute resolution or hearing. These Rules set forth the procedures governing the filing of claims or applications, settlement, discovery, informal dispute resolution, hearing procedures, post hearing procedures, the filing of documents, attorneys fees, responsibilities of the employer regarding insurance, and other miscellaneous topics. The Rules also reference the Rules of the Supreme Court of Virginia. The parties are entitled to engage in discovery, which involves interrogatories, requests for admission, requests for production, subpoenas, and depositions.

The VWCC allow issue mediation, which pro se claimants can participate in, in order to resolve specific issues in dispute. The VWCC also allows for mediation to achieve a compromise settlement of a claim, and requires that both parties be represented by counsel to participate this type of mediation.

The injured employee is known as a “claimant” before the VWCC. The employer is named as a defendant, and if that employer is insured, the carrier is automatically named as a defendant as well. If the employer is uninsured, the Uninsured Employers Fund (UEF) is named as a defendant.

Upon the filing of an initial Claim for Benefits, the VWCC will typically request the position of the defendants. If the matter cannot be resolved through Agreement forms, the matter will be referred to either the evidentiary docket, or referred for an “On-the-record” hearing that does not involve an evidentiary hearing.

An employer or carrier is also entitled to file an Employer’s Application for Hearing, which can be used to terminate, suspend, or amend a previously entered Award. The VWCC also allows for Medical Provider Applications, in which a health care provider can bring a claim before the Commission to attempt to secure payment that was not made, or was underpaid by the carrier.

Investigatory Powers

Pursuant to Va. Code Sec. 65.2-203(A), Deputy commissioners shall have the power to subpoena witnesses, administer oaths, take testimony and hear the parties at issue and their representatives and witnesses, decide the issues in a summary manner, and make an award carrying out the decision. Deputies may exercise other powers and perform any duties of the Commission delegated to them by the Commission.

Reasoned Decision

Not applicable in Virginia.

Workers’ Compensation Appeal Board

General Rule

The Full Commission is comprised of three Commissioners that hear cases on appeal, and conduct a de novo review of the case before them. The Commission reviews written statements filed by the parties, and has the ability to hold oral argument before a decision is rendered.

Scope of Review of WCAB

After a decision is made by a Deputy Commissioner through either an on-the-record hearing or an evidentiary hearing, the matter may be appealed to the Full Commission. This is an appeal of right. This appeal is called a Request for Review, and must be filed within 30 days of the date of the Deputy Commissioner’s opinion. Typically the Commission will provide the transcript of the prior hearing, if such a hearing was held, for the parties to review. The Commission will issue a schedule for written statements to be filed by the parties. No new evidence is considered on Appeal except pursuant to the Rules of the VWCC, which govern after-discovered evidence. Once the written statements have been received, the Commission will review the matter and determine is oral argument is necessary. If so, oral arguments are scheduled. If not, the Commission will then review the case and issue a written opinion. The Full Commission conducts a de novo review of the case.

The Commission may order a remand to the Deputy Commissioner, if it sees fit. Generally, the Commission is limited to addressing only the matters specifically appealed. However, the Commission does have the authority to “do justice” and may address issues not specifically raised by the parties or addressed on appeal.

Original Jurisdiction

Not applicable in Virginia.

Commonwealth Court and Supreme Court

Jurisdiction

After the Commission has issued its written opinion, either party may appeal to the Court of Appeals of Virginia.

In order to perfect this appeal, a Written Notice of Appeal along with a $500.00 appeal bond must be filed with the Clerk of the Commission. This Notice of Appeal must also be filed with the Clerk of the Court of Appeals, along with a $50.00 filing fee. The appeal must be filed within 30 days of the date of the Commission’s opinion.

This is an appeal of right. The parties’ briefs and other filings are governed by the Rules of the Court of Appeals of Virginia. Oral argument is permitted before the Court of Appeals.

Appeal to Supreme Court

Either party may appeal the Court of Appeal's decision to the Supreme Court of Virginia. The appeal will be heard only at the Court's discretion. Very few of these appeals are heard at this level.

SETTLEMENT

In General

•       Resolving a case by settlement is often useful to bring the claim to a final and certain resolution.
•       In Virginia, a workers’ compensation claim can be settled at anytime!

Commission Approval

•       The Commission reviews settlements and determines whether the proposed settlement is in the best interest of the claimant prior to approving.

Payment

•       Must be made within 44 days after the approved documents are received
•       If payment is not made within 44 days, the claimant is eligible for a 20% penalty for late payment.
•       Payment of attorney’s fees should be made directly to the attorney, and mailed to the attorney.
•       Payment of money to the claimant should be made directly to the claimant and mailed to the claimant, NOT the attorney.

Appeal

•       Either party has 30 days from the date the approved settlement documents are received in which to file a Request for Review to the Full Commission, requesting that the settlement be vacated.

Structured Settlement

•       Often advisable in catastrophic cases. Can also assist in reaching settlement since carrier can show larger payments over time.

Attorney Fees

•       Attorney fees are subject to approval and award of the Commission. While there is no set attorney fee award the Commission often awards a fee of 20% to the claimant’s attorney of the settlement amount deducted from the settlement proceeds.Section 65.2-714.

Third Party Suits

•       The claimant may possess a cause of action against a third party tortfeasor (stranger to the employment) that is responsible for his or her injury. This most often arises in motor vehicle accidents, injuries caused by defective products, and when injuries in the work place are caused by strangers to the employment (those outside of the trade, business, or occupation of the employee). The employer should be mindful in the settlement papers as to whether they wish to release or retain their rights as to any recovery by the claimant against third party tortfeasors. It is also important to note that a claimant must obtain consent of the carrier before settling a third party case. Failure to do so may result in a forfeiture of ongoing entitlement to workers’ compensation benefits. See Virginia Code Section 65.2-309, et seq.

Apportionment when Claimant Recovers Against Third Party

•       Virginia Code Section 65.2-313 provides the method of determining an employer’s offset when an employee recovers against a third party.

Medicare Set Asides (MSAs)

•       May be needed depending on dollar amount of settlement, age of claimant and whether claimant is receiving SSDI. See Medicare Set Asides below.

Mandatory Mediation

Not applicable in Virginia.

Voluntary Mediation

Mediation

•       Mediation services are available through the Commission at no charge. The process is voluntary and non-binding. Claimant must be represented. This process can be useful to reach settlement with difficult claimants and/or counsel.
•       New Commission policies that went into effect on July 1, 2012 require that a representative of the employer or carrier who can provide settlement authority be available to participate in Mediation. This person can appear in person or via telephone.

Informal Settlement Conferences

Not applicable in Virginia.

Compromise and Release

Releases and Resignation of employment are not within the jurisdiction of VWCC and should not be submitted to Commission with other settlement documents.

INSURANCE

General Rule

Per Section 65.2-300, generally every employer and employee, is conclusively presumed to have accepted the provisions of the Act to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment. This section forbids an employer from entering into any contract or agreement to relieve themselves of the requirements of the Act.

An executive officer may reject coverage under the Act for injury or death by accident, but not with respect to occupational disease, if prior to such accident, notice is properly given to the employer and filed with the Commission. The Act provides for specific requirements of this notice. If an executive officer rejects coverage under the Act and proceeds in a lawsuit against the employer to recover damages for personal injury or death, the employer may use the following defenses: contributory negligence, negligence of a fellow servant and assumption of risk. An executive office that rejects coverage may revoke that rejection and accept coverage under the Act by properly giving notice to the employer and Commission.

•       Pursuant to Va. Code 65.2-800, the employer has a duty to insure payment of compensation to his employees. This section also provides local officials charged with licensing employers the authority and duty to provide notice to the employers of the statutory requirements for insurance coverage.

Va. Code 65.2-801 requires that every employer subject to the Act secure his liability thereunder by one of the following methods:
1.       Insuring and keeping insured his liability in an insurer authorized to transact the business of workers' compensation insurance in this Commonwealth;
2.       Receiving a certificate pursuant to Section 65.2-808 from the Workers' Compensation Commission authorizing such employer to be an individual self-insurer;
3.       Being a member in good standing of a group self-insurance association licensed by the State Corporation Commission;
4.       Being a member in good standing of a local government group self-insurance pool licensed by the State Corporation Commission pursuant to Section 15.2-2706 to offer workers' compensation coverage; or
5.       Entering into an agreement with a professional employer organization for professional employer services which includes voluntary market workers' compensation insurance for coemployees of the professional employer organization and the client company procured from an insurer authorized to transact the business of workers' compensation insurance in this Commonwealth. A professional employer organization may obtain voluntary market workers' compensation insurance in its own name for all coemployees which it shares or which are assigned or allocated to it pursuant to the agreement between the professional employer organization and the client company. The client company shall maintain separate voluntary market workers' compensation insurance insuring any and all employees of the client company not insured through the policy obtained by the professional employer organization.
If an employer satisfies the Act’s requirements regarding being an individual self-insurer, the Commission will certify that employer. The requirements and standards for being certified by the Commission are set forth in Va. Code 65.2-801.

The Act requires that employers and insurance carriers provide certain notices regarding their coverage and regarding changes in their coverage. Va. Code 65.2-804 details these requirements. The employer must file evidence of his compliance with the provisions of Section 65.2-801 and all others requirements by the method prescribed by the Commission annually. However, if the employer secures his liability under this title pursuant to subdivision A 1 of Section 65.2-801 then the insurance carrier shall make a filing on behalf of the employer, and such filing shall be made electronically in the form as prescribed and to the agent as designated by the Commission, within 30 days of the inception of the policy. The requirements of this notice are outlined in this section.

If an employer subsequently cancelled his insurance or membership in a licensed group self-insurance association, the employer is required to notify the Commission of the date of cancellation and the reasons therefor. The employer also must give 30 days written notice to his employees covered when a policy is cancelled, except if there is no lapse in coverage. Similarly, every insurance carrier and group self-insurance association must notify the Commission upon a cancellation of a policy issued by it.

Va. Code 65.2-804 also outlines that no policy or membership agreement in a group self-insurance association may be cancelled or nonrenewed by the insurer or group self-insurance association except if they give 30 days notice to the employer and the Commission. This is not required if the employer has obtained other insurance and the Commission is noted of this fact by the insurer assuming the risk. This is also not required if the reason for cancellation is for nonpayment of premiums, in which case 10 days notice must be given to the employer and the Commission.

Particular Requirements

Pursuant to Section 65.2-802, the requirements for licensure as group self-insurance association include:
A.       Two or more employers having a common interest may be licensed by the State Corporation Commission as a group self-insurance association and permitted to enter into agreements to pool their liabilities under this title. The members of any such group self-insurance association may also enter into agreements to pool their liabilities for workers' compensation benefits which may arise under the laws of any other jurisdiction and other types of employers' liabilities for the death or disablement of, or injury to, their employees. Benefits payable by any such association for such members' liabilities under the laws of any other jurisdiction shall extend only to employees otherwise eligible for coverage under the provisions of this title.
B.       The State Corporation Commission shall not license a group self-insurance association or grant authorization for an employer to become a member of such group unless it receives in such form as it requires satisfactory proof of the solvency of any such employer, the financial ability of each to meet his obligations as a member, and the ability of the group to pay or cause to be paid the compensation in the amount and manner and when due as provided for in this title and as may be agreed upon with respect to other types of employers' liabilities which may be authorized and provided hereunder.
C.       Members of a group shall execute a written agreement under which each agrees to jointly and severally assume and discharge any liability under this title of employers party to such agreement. Agreements among the members shall be subject to approval by the State Corporation Commission; however, no such agreement nor membership in a group self-insurance association shall relieve an employer of the liabilities imposed by this title with respect to his employees. In addition to the rights of the association under such agreements, in the event of failure of the association to enforce such rights after reasonable notice to the association, the State Corporation Commission shall have the right independently to enforce on behalf of the association the joint and several liability of its members under this title and the liability of members for any unpaid contributions and assessments. The State Corporation Commission shall be entitled to recover its expenses and attorneys' fees.
D.       Any person, firm, or corporation desiring to engage in the business of providing services for a group self-insurance association shall satisfy the State Corporation Commission of its ability to perform the services necessary to fulfill the employer's obligations under this title before it undertakes to provide such services to any group self-insurance association. The State Corporation Commission may from time to time review and alter any decision approving an employer as a member of a group or its approval of a group or of an agency servicing a group. The State Corporation Commission may in its discretion require the deposit of an acceptable security, indemnity, or bond or the purchase of such excess insurance or the ceding of reinsurance on a specific or aggregate excess of loss basis as may be required by the circumstances.
E.       The State Corporation Commission may establish reasonable requirements and standards for the approval of a group self-insurance association and the administration of such associations including, without limitation, the quality, amount and accounting of security deposits, bonds, excess insurance and reinsurance, the membership in any group self-insurance association, the amount of advance payments and reserves required of group self-insurance associations, the investment of such funds, the form and content of financial information to be submitted by a group self-insurance association and the frequency of such submissions, and the terms of agreements between members of a group self-insurance association. The State Corporation Commission may, after notice and hearing, embody such requirements and standards and such other requirements as may be reasonably necessary for the purposes of this section in regulations; however, any group self-insurance association entering into a reinsurance transaction pursuant to the provisions of this section shall be deemed an insurer for purposes of such transaction and shall be subject to Article 3.1 (Section 38.2-1316.1 et seq.) of Chapter 13 of Title 38.2.
F.       Notwithstanding any provision of this title to the contrary, each licensed group self-insurance association shall be assessed annually by the State Corporation Commission in like manner and amount to that provided by Chapter 4 (Section 38.2-400 et seq.) of Title 38.2 and shall pay such assessment in accordance with the aforesaid provisions of law; however, for the purposes of such assessment "direct gross premium income" of a licensed group self-insurance association shall be the aggregate of the amounts determined to be subject to the tax imposed by Section 65.2-1006 on each employer member of such association.
G.       Notwithstanding the provisions of Section 49-25, neither the State Corporation Commission nor any other entity or person, as obligee under any surety bond required under this section or any regulation adopted hereunder, shall be required to institute suit against an association as a condition precedent to the surety's performance under the bond.
Pursuant to Va. Code 65.2-808, whenever an employer has complied with the provisions of Section 65.2-80 relating to self-insurance, the Commission shall issue to such employer a certificate which shall remain in force for a period fixed by the Commission. But the Commission may upon at least thirty days' notice and hearing to the employer revoke the certificate upon satisfactory evidence for such revocation having been presented. At any time after such revocation, the Commission may grant a new certificate to the employer upon his petition.

General Rule Where Employer is Uninsured

Pursuant to Va. Code 65.2-805, if an employer fails to comply with the Act’s insurance requirements, it may be assessed civil penalties, including fines between $500 and $5,000. These fines are paid into the Uninsured Employer’s Fund. Further, the employer may remain liable for compensation to an injured employee under the Act or in a lawsuit for damages. Va. Code 65.2-805 provides for the right of the employer to be heard on the issue of penalties, and provides for the right to appeal such penalties. Further, this section provides the Commission with the authority to order an employer to cease and desist all business transactions and operations until it is in compliance with the requirements of the Act.

In addition to the civil penalties assessed pursuant to Section 65.2-805, any employer who knowingly and intentionally fails to comply with the provisions of Section 65.2-800 or 65.2-804 is guilty of a Class 2 misdemeanor. Venue for the prosecution hereof when there is an injury shall lie in the county or city wherein the injury occurred.

Damages by Action at Law Where Employer is Uninsured

When an employer is uninsured, he will remain liable during the continuance of his failure to any employee at law in a suit instituted by the employee against the employer to recover damages for personal injury or death by accident. In that lawsuit, the employer shall not be permitted to defend upon any of the following grounds: the employee was negligent; the injury was caused by the negligence of a fellow employee; or the employee assumed the risk of the injury.

Uninsured Employers Guaranty Fund

Va. Code 65.2-1200 establishes the Uninsured Employers Fund in Virginia, which is administered, maintained, and disbursed by the Commission. This Fund provides compensation to injured workers when the employer is uninsured. Va. Code 65.2-1201 also establishes the funding of the Uninsured Employers Fund through taxes on insurance premiums received by carriers in Virginia.

After the Fund has paid an injured worker pursuant to an Award, the Commission is subrogated to any right to recover damages which the injured employee or his personal representative or any other person may have against his employer or any third party for the injury or death. Any unsatisfied claim against an uninsured employer is referred to the Virginia Attorney General for collection.