News & Publications

WORKERS COMPENSATION CASE WATCH

On January 6, 2020, the Commission briefly addressed the issue of telemedicine in the treating physician relationship.  In Carter v. Mondelez International, the claimant was injured in a motor vehicle accident and was treating with a psychologist for PTSD. 

WORKERS COMPENSATION CASE WATCH

In Sorour v. Avalon Transportation, the claimant, a limousine driver, was injured in a single vehicle accident. At his supervisor’s request, the claimant was driving to the company’s office.  As he exited the highway he hit the guardrail on the exit ramp at a low speed, causing his injuries.

JLARC Recommends 25 Changes - What you must know about JLARC's Report

The Joint Legislative Audit and Review Commission (“JLARC”) conducted a review of the Virginia workers’ compensation system with a special focus on the use of disease presumptions. The JLARC report was released on December 16, 2019 and included 25 recommended changes. This article includes the following:

• What JLARC's Research Included
• Summary of JLARC's Findings
• Highlights from JLARC's 25 Recommendations
• Important Links to the Actual Report and Recommendations

For this study, JLARC staff conducted research that included:

• Structured interviews of workers’ compensation attorneys (claimant and defense); leadership and staff of state agencies; representatives of local and state organizations representing police, firefighters, and emergency medical services personnel; and insurers;

McCandlish Holton is pleased to announce that twenty-one of our attorneys are named  in the 20th Edition 'Legal Elite' by Virginia Business Magazine. Each year Virginia Business Magazine asks attorneys throughout the Commonwealth to nominate their peers for distinction in 20 categories. The full list of 21 McCandlish Holton attorneys on this year’s Legal Elite list, recognized in 11 categories: 

ADMINISTRATIVE/GOVERNMENT:

Michael R. Ward

ALTERNATIVE DISPUTE RESOLUTION:

Michael H. Gladstone

Joseph M. Moore

Brennan C. Morrissett

BANKRUPTCY/CREDITORS' RIGHTS:

1.      Employer’s Applications for Hearing

The Commission closely examines these items to determine if the Application is technically correct:

a.    Claimant’s address

b.    Grounds for the Application

c.     Relief requested

d.    Compensation rate

e.    Date compensation was paid through

f.     Presence of supporting documentation

g.    Application signed

h.    Application dated

i.      Whether the claimant and the attorney, if represented, were sent a copy of the Application.

2.      Unauthorized Practice of Law

The Commission provided these tips for adjusters about the unauthorized practice of law:

a.    An adjuster cannot appear at an evidentiary hearing to advocate for an insurer or

WORKERS COMPENSATION CASE WATCH

In a November 19, 2019 Review, the Full Commission held in Bayne v. Horizon Behavioral Health that the claimant did not establish a mechanical change as a result of her accident, and therefore, did not establish a compensable injury. 

The claimant, a clinical mental health examiner, alleged an injury to her low back as a result of an eight-year old child charging into her ten to fifteen times, causing her back to strike a horizontal door handle.  The claimant had a history of four lumbar surgeries prior to this incident.  The claimant testified that she felt a sharp increase in pain as a result of this incident.  In affirming the Deputy Commissioner’s denial, the Full Commission cited Dr. Vanichkachorn, who treated the claimant before and after the alleged work accident.  The doctor opined that there was no evidence of any structural or mechanical change in comparing diagnostic studies taken before versus after the incident.  He opined

The New Elephant in the Room

The recent public discourse (and comedy) surrounding odd uses of animals for emotional support including squirrels and alligators, makes it easy to lose sight of the fact that many people suffering from diagnosed emotional or mental disabilities rely daily on animals of all types for emotional support.  Registrations of emotional support animals have risen exponentially over the past decade, which has resulted in a need for many, including employers, to confront those who claim to need animals for support.  Employers in Virginia may have legal justification for excluding disruptive animals from the workplace, but they should be aware of the potential compliance pitfalls under the Americans with Disabilities Act (ADA) before making quick decisions about animals brought by employees. 

Employee’s Use of Emotional Support Animals and Compliance with the ADA

Under the ADA, it is unlawful to discriminate against a person in employment on the basis of the employee’s actual, documented, or perceived disability.  This bar on disability discrimination extends to hiring, firing, promotion, pay, harassment, and other significant employment decisions.  While the ADA’s main purpose is to protect the rights of the disabled in the workplace, the law is conscious of the needs of employers to maintain safe and effective workplaces.  The ADA requires an employer to make reasonable accommodations for an

Workers' Compensation Case Watch

In Manion v. Northwestern Regional Adult Detention Ctr., the claimant needed a new physician because her doctor was no longer providing pain management. The employer asked a nurse case manager to find a new doctor for the claimant and to obtain a Functional Capacity Evaluation (“FCE”) from the physician. The nurse got an FCE referral from the new doctor and scheduled the appointment. She told the claimant about the appointment in person and left her several message about it. The claimant said she would not attend and cancelled the FCE.                                                                                                                                   

The defendant filed an Employer’s Application for Hearing alleging refusal of medical treatment because the claimant did not go to the FCE. The Deputy Commissioner denied the Application because the scheduled FCE was not medically necessary treatment. On review, the Full Commission cited the longstanding principal that the claimant’s medical treatment is directed by the treating physician and not the defendants. They noted that a

Workers' Compensation Case Watch

In Ross v. Cumberland Hospital, the claimant sustained a severe brain injury. Her doctor said it was medically necessary that she have a home health aide or family member oversight to assist her with activities of daily living and monitor safety concerns. The claimant filed a claim asking that her spouse be paid to provide home health care to her.

The Commission found that spousal care should be authorized. In reaching that conclusion,

Trial attorney James Snyder and his team obtained a defense verdict on behalf of a concrete pumping company and its driver in a Virginia Circuit Court jury trial. The plaintiff, a passenger in a vehicle her husband was driving, filed a $1,000,000 lawsuit against the defendants, alleging the concrete pump truck operator failed to keep a proper lookout and, by doing so, caused a T-bone accident. The defendants, however, asserted the plaintiff’s host vehicle failed to yield to the oncoming concrete pump truck and pulled in front of the truck, leaving the driver with no time to avoid the accident, despite his best efforts.

The injuries to the plaintiff were significant and not contested at trial. The plaintiff