News & Publications

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

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

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

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

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. 

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

The Workers' Compensation practice group at McCandlish Holton is thrilled to announce our 18th Annual Workers' Compensation Seminar. The seminar is one of the premier industry events in the Mid-Atlantic Region-- a full day of useful information and continuing education free to adjusters, risk managers, employers, nurse case managers, and brokers. The event will take place September 26, 2019 in Richmond, Virginia. 

By: Eva C. Roffis and Joseph T. McNally, Jr.

With the spring season here and the summer months approaching, many employers may find an increase in work tasks to be performed outdoors. As a result of increased productivity outdoors, employees will be exposed to varying weather conditions and forces of nature in the form of wind, rain, lightning, hail, etc. However, accidents and injuries caused by weather conditions must be tied to an actual risk of employment in order to be found compensable.

"Act of God" and the Actual Risk Test

In Virginia, the “actual risk” test requires that the employment task expose the employee to the particular danger that instigated his or her injury. Under the actual risk test, evidence of an injury while at work from a force of nature, standing alone,

A Resource to Utilize in Workers' Comp Defense

By: Esther King, Esq.