Statute of Limitations Tolling Statute Rewritten

 

Workers' Compensation DEFENSE DIGEST

Virginia has long held that the statute of limitations for filing an initial claim for benefits is two years from the date of accident. Va. Code §65.2-601. However, prior to July 1, 2019, §65.2-602 provided that the two year statute of limitations to file a claim was tolled when (1) an employer had notice of an accident resulting in a compensable injury and paid wages or compensation to the claimant, with or without an award, during incapacity from work or that the employer failed to file a First Report of Injury and (2) that the claimant was prejudiced by the payment of wages or compensation during incapacity from work or by the employer’s failure to file the First Report of Injury.  If a claimant proved both of these conditions, the statute of limitations was tolled for the duration of the payments or wages during the claimant’s incapacity from work or until the First Report of Injury was filed.

Effective July 1, 2019, the statute has been rewritten and there are some significant changes.

The new statute only applies to injuries occurring on or after July 1, 2019. It is not retroactive to injuries occurring before such date.

1. Most importantly, the statute of limitations is tolled if the employer paid TTD, TPD or wages during incapacity from work or furnished medical treatment more than six months after the

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Commission Determines “Out of Work” Note is a “Light Duty” Note

 

Workers' Compensation Case Watch

In Umana v. Clark Construction Group, the claimant was injured in a work accident.  The claimant saw a doctor for his work-related injuries.  In his report, the doctor outlined the claimant’s light duty restrictions but also said “there is no light duty work available, so he remains unable to work at this time.”  In his office notes each month, the doctor repeated that because there was no light duty available, the claimant remained unable to work.  The Deputy Commissioner found that the claimant was totally disabled during those periods.

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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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McCandlish Holton Workers' Compensation Announces Attorney's Return

Jessica Hacker Trivizas returns home to McCandlish Holton's workers' compensation team after working on the NFL Concussion and BP Oil Spill settlements. Her background on these mass claims resolution programs gives her unique insight into the work of claims adjusters. 

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Impairment Ratings Related to Total Joint Replacement in Workers' Compensation Claims

By: Amanda Tapscott Belliveau

The Court of Appeals recently addressed the issue of impairment ratings as they relate to total joint replacements in Loudoun Co. v. Richardson, Record No. 1533-18-4 (April 16, 2019). The claimant sustained an injury to his hip, and the treating physician assigned a 74% loss of use rating to his left leg based upon his impairment prior to undergoing a hip replacement.  The Court of Appeals rejected the employer’s argument that the appropriate measure of loss is the claimant’s impairment after his hip replacement, as the implanted prosthetic enabled him to achieve maximum medical improvement.  The Court of Appeals found that the loss of use is measured by a claimant’s impairment at the time of the necessary implantation of the corrective device.  The Court of Appeals found that nothing in

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