News & Publications

SPECIAL EDITION | Coronavirus & Comp Updates

Read the full 4-part Workers’ Comp and COVID-19 Update.

The Court of Appeals of Virginia considered whether a claimant’s tuberculosis was a compensable ordinary disease of life. Will the Court’s analysis be instructive in evaluating coronavirus claims that will inevitably be filed in the coming months?

In Lindenfeld v. City of Richmond Sheriff’s Office, 25 Va. App 775 (1997), the Court of Appeals of Virginia considered whether a claimant’s tuberculosis was a compensable ordinary disease of life and the Court’s analysis may be instructive in evaluating the coronavirus claims that will inevitably be filed in the coming months.  Tuberculosis spreads from person to person through microscopic droplets released into the air when a person with active tuberculosis coughs, speaks, sneezes, spits, laughs, or sings.[1]  Much like tuberculosis, the World Health Organization has suggested that coronavirus can spread from person to person through small droplets from the nose or mouth when an infected person coughs or exhales.[2] 

The claimant in Lindenfeld, was a deputy sheriff in a jail containing inmates with active and

SPECIAL EDITION | Coronavirus & Comp Updates

Read the full 4-part Workers’ Comp and COVID-19 Update.

Under the Virginia Workers’ Compensation Act, COVID-19 (“coronavirus”) will likely be treated as a “disease.”  In Virginia, a disease may be compensable under the Act if it is an occupational disease or an ordinary disease of life. 

Necessity of a Diagnosis

Regardless of whether coronavirus is pursued as either an occupational disease or an ordinary disease of life, the claimant must first prove that they are actually suffering from a “disease” and will likely need to establish this with a confirmed diagnosis of coronavirus to successfully meet their burden of proof.  Mere exposure or symptoms consistent with coronavirus, absent a diagnosis, will not likely be enough.  However, this does not

WORKERS COMPENSATION CASE WATCH

In Mizelle v. Holiday Ice, Inc., claimant got into the employer’s truck to make a delivery and started driving without putting his seat belt on.  He knew the law required him to wear a seat belt but admitted that he did not put it on and intended to put it on later during the trip.  Within five minutes of starting the trip he lost control of the truck and was injured when he was ejected from it during the crash.

By: Megan Watson

This year we’ve seen an influx of negligence per se claims. Usually, this is a somewhat uncommon claim in the personal injury context. Many adjusters have little or even no experience with it. If you need a quick primer on the doctrine of negligence per se in Virginia, the following covers the basics.  

Most actions for negligent personal injuries are common-law actions. The standard of care in these actions is typically that of “the ordinary prudent person.” To establish that the defendant did or did not meet the standard of care, the plaintiff must introduce evidence to show what the “ordinary prudent person” would or would not have done under the circumstances.

However, where there is no legislative enactment specifically and expressly granting a right of civil action, if it can be shown that the defendant’s behavior violated an existing criminal

A Series By: Michael H. Gladstone, Esq. Mike's Bio

In Finjan, Inc. v. Zscaler, Inc., 2019 U.S. Dist. LEXIS 24570 the USDC for the Northern District of California addressed an objection by Defendant to discovery propounded by Plaintiff seeking emails possessed by one of defendant’s European employees.  The objection argued the employee’s emails may not be produced without violating privacy requirements contained in the GDPR, which became effective in May, 2018.  The Court approached the dispute methodically and provided what this author predicted may be a model for future analysis of discovery objections under the GDPR by U.S. Courts of such disputes. 

[Are You Within the Reach of the GDPR?]

The Court first announced the general rule that “…a foreign country’s statute precluding disclosure of evidence does “not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that statute.”  Societe Nationale Industreille Aerospatiale v. United States Dist. Court for Southern Dist., 482 U.S. 522, 544 n. 29, 107 S. Ct. 2542, 96 L Ed. 2d 461 (1987).  The Court then identified the considerations pertinent to the question whether or not a foreign statute excuses non-compliance with a U.S. discovery order:  1. The importance of the documents or other information requested to the litigation, 2. The degree of specificity of the request, 3. Whether the information originated in the United States, 4. The availability of alternative means of securing the information, and 5. The extent to which noncompliance would undermine important interests of the United States.  Richmark Corp. v. Timber Falling Consultants, 959 F. 2d 1468, 1475 (9^th Cir. 1992). 

The Court addressed the factors individually. 

Consideration No. 1: The importance of the documents or other information requested to the litigation. The court concluded the documents were directly relevant to the infringement issue and the data subject’s knowledge of the patented technology at issue.  As such, this consideration weighed in favor of disclosure. 

Litigation Participants Subject to GDPR Must Justify their Use of Protected Data

Consideration No. 2: The degree of specificity of the request. The court found the

WORKERS COMPENSATION CASE WATCH

The claimant was injured at the auto glass company he owns.   The business had a workers’ compensation insurance policy but the insurer argued that the claimant was not an employee as defined by the Act so he was not subject to the policy’s coverage.

We are surrounded by recording devices: smart phones, dashboard cameras, recording doorbells, smart home devices, surveillance cameras, and drones. Chances are that if an accident happened, one of these devices captured it. Video of an employee’s accident can be a key piece of evidence, but we cannot use that evidence if it was erased.

Failing to preserve video evidence is called ‘‘ spoliation .’’ Preserving evidence is an important part of defending a workers’ compensation claim. In 2019, a statute was enacted governing spoliation. It states that

Virginia Business released its inaugural list of 100 People to Meet in 2020. 

WORKERS COMPENSATION CASE WATCH

In Morres v. Earth Treks Crystal City Climb, the claimant worked at a recreational climbing gym.  The employer required employees to clock in before their shifts and prohibited employees from performing personal climbs while on the clock.  Before clocking in for her shift, the claimant did a warm-up climb, which she said was in preparation for performing rope maintenance.  She climbed with another co-worker, who was not scheduled to work that day.  During her warm-up climb, she took a practice fall.  She was injured in the fall.

The Deputy Commissioner found that the claimant was engaged in personal, recreational rock-climbing and was not in the course of her employment when the injury occurred.  On Review, the full Commission agreed, stating “…we do not find whatever ephemeral benefit the employer might receive from the claimant sharpening her climbing skills sufficient to bring

Jonathan Gonzalez (top left) was once in their shoes. Since his career on his high school's debate team, Jonathan has continued his involvement and support for high school debaters through college, law school, and now during his legal career in civil litigation. Yesterday, Jonathan shared his knowledge and support by coaching the Manchester High School Debate Team in Chesterfield County. Later this month, Jonathan will travel to Philadelphia to coach 5 debate teams from Washington D.C. competing in a tournament.