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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.

At this point, the full impact of the coronavirus is unknown.  The American College of Cardiology’s website states that “the specific effects of COVID-19 on the cardiovascular system remain unclear, although there have been reports of acute cardiac injury, hypotension, tachycardia, and a high proportion of concomitant cardiovascular disease in infected individuals…we’re all

McCandlish Holton wishes to assure our clients and the community that we are working to maintain full operations during the current health crisis. We are carefully following the regional and national updates on the spread and impact of COVID-19 (Coronavirus) to protect our employees, clients, and community.

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 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.

The defendants, represented by Amanda Belliveau, prevailed at the Commission on a willful misconduct defense for the claimant’s failure to wear his seat belt.

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

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