Claimant Refuses to Attend FCE, Commission Denies Employer’s Application for Hearing

 

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

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Help Me Help You: 3 Things Your Attorney Needs to Successfully Defend Your Insured

By: Jim Snyder

When a new case first comes in, certain pieces of information facilitate our initial investigation. Of course, when a lawsuit is the first notice of loss, everyone is starting the defense with little to no information to pass along. However, in most instances, the client has received some essential information before the claim becomes a lawsuit and finds its way to us.

Immediate access to these three things helps us attack the case:

1) Accurate contact information for the named insured and the tortfeasor, if different. This would include at least a phone number and a physical address. Most files arrive with the name and address of the named insured, but being able to pick

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320-Mile Round Trip to Doctor Unreasonable

 

Workers' Compensation Case Watch

In Clarke v. Hughes Center, LLC., the claimant established a treating physician relationship with a pain management doctor in Danville, VA. The claimant later moved out of state, but continued having appointments with the same treating physician. The claimant was traveling 320 miles round-trip to see the doctor. The defendants filed an Employer’s Application for Hearing seeking a change in treating physician. The Deputy Commissioner denied the Employer’s Application.  

On review, the Full Commission listed the six-factors it considers to justify a change in treating physician: 1) inadequate treatment is being rendered; 2) a specialist’s treatment is needed but

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Duty to Market - A Return to Basics

By: Brian M. Frame

Looking through the Virginia Workers’ Compensation Act, you won’t find “marketing” or “duty to market” anywhere in the legislated sections of the Act. Instead, this frequently contested topic appears deep in the case notes of §65.2-510, a statutory provision dealing with the claimant’s refusal of employment.  

HISTORY

In J.A. Foust Coal Co. v. Messer, 195 VA. 762 (1954), the Supreme Court laid the ground work for the modern marketing rule with this single sentence: “one who has suffered a partial physical disability may obtain total incapacity payments if, because of his disability, he is unable to market his remaining capacity for work.” The consequence of this new rule was that the partially disabled

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No Penalty Due When Timely Payment Mailed with Signature Required

 

Workers' Compensation Case Watch

In Woods v. Mecklenburg County Public Schools, VA00001320337, (7/19/19), the Virginia Workers’ Compensation Commission declined to assess a 20% penalty against the defendants for late payment of benefits.

The claimant settled his case and the Commission approved the settlement Order. The parties had thirty days to appeal the Order. Under Va Code § 65.2-524 payment was due within two weeks after the appeal period expired or a 20% penalty would be added. One day before the penalty would apply, the defendant mailed payment to the claimant at his address of record by certified mail, requiring a signature from the recipient. 

The claimant argued that payment was late because of the signature requirement.  The claimant also argued that the Commission should have taken judicial notice of

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Simple Act of Bending

 

Workers' Compensation Case Watch

In Williams v. CJ Designs, Inc.,  VA00001427406 (July 8, 2019), the Virginia Workers' Compensation Commission found that a claim arose out of the employment when an employee was injured while straightening up after bending from the waist with nothing in her hands.

The claimant, a Certified Nursing Assistant, was helping a patient into a car when she injured her back. The claimant bent straight forward from her waist, with her arms in a U-shape so she could scoop them under the patient’s legs and pivot the patient’s feet in front of her. She had already touched the patient’s feet, did not have anything in her hands, and was straightening from the waist when she felt a pop in her back. The claimant confirmed that she had performed this action many times and that it was not in any way awkward or unusual. The Deputy Commissioner found that the claimant’s injury did not arise out of the employment.

The Commission REVERSED, finding that the claimant was required to

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Defendants Win with a Willful Misconduct Seatbelt Defense

By Jessica Hacker Trivizas

Amanda T. Belliveau represented the employer and carrier in a recent win on a willful misconduct defense for failure to wear a seatbelt.  

In Mizelle v. Holiday Ice, Inc. , JCN VA00001515696 (June 18, 2019), the claimant testified that he has been aware of Virginia’s law requiring drivers to use a seat belt since he began driving at the age of 16. On the date of his accident, he got into the employer’s truck to make a delivery and started driving without putting his seat belt on. Though he knew the law required him to put on his seat belt, he admitted that he had not put on his seat belt, and testified that he intended to put on his seat belt during the trip. He drove for less than five minutes before he

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Removing Wasp Nest in the Course of the Employment

 

Workers' Compensation Case Watch

The Virginia Workers' Compensation Commission recently addressed the “in the course of” requirement in Redleaf v. W&L Mail Service, Inc., JCN. VA00001513936 (June 11, 2019).

The claimant, a bulk mail delivery driver, arrived at the loading dock of a post office.  When the claimant got out of his truck, he noticed a large wasp nest above the stairs and wasps flying around.  He asked a post office employee to take care of the nest because he did not want to get stung.  The post office employee sprayed the nest and spray ran down the walls to the ground.  The claimant got a broom to knock the nest down.  The post office employee was too short to reach the nest, so he asked the claimant to use the broom to knock it down for him.  The claimant jumped up to knock the nest down, slipped on a substance that he believed was wasp spray, and hurt his ankle. 

The claimant testified that removing the nest would ensure that there would not

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Virginia's March Toward Adopting the Federal Spoliation Rules

From The Journal of Civil Litigation, Published Quarterly by the Virginia Association of Defense Attorneys, VOL. XXXI, NO. 1, Spring 2019. It appears here with permission.

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McCandlish Holton's Litigation Practice Group Welcomes Attorney Brittany B. Falabella

Welcoming Brittany B. Falabella, litigation practice group Director, Cam Beck says, "We are excited to have Britt join our team.  She brings bankruptcy and commercial litigation experience that will be valuable to our corporate clients.  Britt also understands well the challenges and needs of in house counsel as she previously served as general counsel of a Richmond based sports marketing and management company."

Since 2009, Britt also has been a volunteer coach with Henrico Adult basketball and soccer, in association with the Special Olympics. Britt says her inspiration began at home: "I have a sister with autism, so I have

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