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WORKERS’ COMPENSATION DEFENSE DIGEST | FEB 2021

COVID-19 EDITION | Coronavirus & Comp Updates

LEGISLATIVE ALERT

• • • Several bills regarding COVID-19 and its treatment under workers’ compensation have been introduced at this week’s Special Session of the Virginia General Assembly.

    • Specifically, these bills seek to establish a presumption of compensability for COVID-19 have been referred to committee for consideration. See details below for proposed bills: HB 5028; SB 5066, SB 5097, and SB 5104;  and SB 5022.

HB 5028 

Proposed amendment to Va. Code §65.2-402.1, to be retroactive to January 1, 2020: COVID-19 causing the death of, or any health condition or impairment resulting in total or partial disability of, any (i) firefighter, as defined in § 65.2-102; (ii) law-enforcement officer, as

SPECIAL EDITION | Coronavirus & Comp Updates

• • • The effects of the coronavirus pandemic have caused many changes in how we work in Virginia.  Office workers and teachers are some of the many types of employees who have transitioned to working remotely because of Governor Northam’s Executive Orders closing schools and encouraging telework. With a large part of the workforce working remotely and/or from home, there are several issues for employers and carriers to consider.  

Workers’ Compensation Concerns

Arising Out Of

Added risks in the employee’s home workspace are likely to be “conditions of the work place” meeting the arising out of element of a workers’ compensation claim. 

Three Case Examples:

SPECIAL EDITION | Coronavirus & Comp Updates

• • • Compensability and Burden of Proof

A nursing home employee or in-home health care professionals can prove a compensable coronavirus claim, by showing that their coronavirus diagnosis:

1. arose out of and in the course of the employment;

2. did not come from causes outside of work; and, 

3. that coronavirus is an infectious or contagious disease contracted in the course of employment in a nursing home or in the direct delivery of healthcare.

The second and third elements will likely be the most difficult to prove.  

Nursing Homes are at the Highest Risk of Being Affected

However, as COVID-19 spreads in the United States, confirmed cases in nursing homes and long-term care facilities have continued to rise. The Centers for Disease Control and Prevention (“CDC”) has indicated that nursing homes are at the highest risk of being

COVID-19 EDITION | Coronavirus & Comp Updates

The Virginia Workers’ Compensation Commission (VWC) is responsible for carrying out the requirements of the Virginia Workers’ Compensation Act, while administering Virginia's workers’ compensation program, meeting legal requirements and providing various protections.

Also included are relevant updates from other organizations, such as the WCIO.  

We will continually update this article as announcements are made. Scroll to the list of  links to each Order with summaries appearing below.

SPECIAL EDITION | Coronavirus & Comp Updates

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

Va. Code §65.2-402 provides first responders with a presumption that respiratory and heart diseases, as well as certain other medical conditions, are compensable.  If the Commission analyzes a coronavirus claim under this code, could it find in the claimant’s favor?

Va. Code §65.2-402 provides first responders with a presumption that respiratory and heart diseases, as well as certain other medical conditions, are compensable.  To defeat the claim, the defendants must show that the claimant’s disease was not caused by the employment and that a non-work-related cause of the disease existed.  If the Commission analyzes a coronavirus claim under Va. Code §65.2-402, it may well find in the claimant’s favor, depending upon how the coronavirus is ultimately found to effect other health conditions.   

A Claim Involving Virally Induced Heart Disease in a Police Officer

The claimant in Town of Purcellville Police v. Bromser-Kloeden, 35 Va. App. 252 (2001) was a police officer seeking workers’ compensation benefits for virally induced heart disease.  The defendants argued that the claimant’s condition did not qualify as an occupational disease

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 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

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