Highlights from the 2019 Virginia Workers' Compensation Educational Conference


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

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No Obvious Sudden Mechanical or Structural Change

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

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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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Chandler Test Must be Applied to Requests for Spousal Care

 

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,

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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

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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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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