WORKERS’ COMPENSATION DEFENSE DIGEST | FEB 2021
VIRGINIA WORKERS’ COMPENSATION COMMISSION UPDATES
- The Commission has issued a recent notice that they are experiencing mail delays pertaining to mail both to and from the Commission due to the impacts of COVID-19 on the United States Postal Service. Urgent documents should be sent by other means (i.e. Webfile, fax, overnight mail) when appropriate.
- The EDI 2020 Year in Review has been published by the Commission, which includes the EDI Leaderboard, EDI Most Improved, and EDI Dean’s List. Congratulations to those who have been recognized!
- The House Bill 617 Repetitive Motion Study Report is now available for review. It was found that injuries from repetitive motion constitute 2.1% of workers’ compensation injuries with a 2.5% share of overall claim costs. It was found that the rate of covered carpal tunnel claims in Virginia is low when compared to other states. The study concluded that adding repetitive stress injuries should add approximately 1,200 claims annually at an approximate cost of $20 million to the existing system. The study notes legislative options of amending the occupational disease/ordinary disease of life sections of the Act or amending the definition of an injury under the Act if the General Assembly elects to expand coverage to repetitive stress injuries.
- Lorraine “Lori” D’Angelo has been appointed as the Commission Ombudsman. This role serves as an independent educational and outreach resource for unrepresented injured workers, employers, and others seeking information about Virginia’s workers’ compensation system.
HIGHLIGHTS FROM PROPOSED LEGISLATION
SB 1375 has been passed by the Senate and submitted to the House.
This seeks to amend Va. Code §65.2-402.1 to create a presumption that COVID-19 is a compensable occupational disease suffered in the line of duty for firefighters, law enforcement officers, and correctional officers (unless the presumption is overcome by a preponderance of competent evidence to the contrary).
In order for the presumption to apply, COVID-19 must be established by a positive diagnostic test, an incubation period consistent with COVID-19, and signs and symptoms of COVID-19 that require medical attention. Furthermore, it must cause the death of, or any health condition or impairment resulting in total or partial disability. Under the current text of the bill, this presumption would only apply to those who are diagnosed on or after July 1, 2021.
HB 2207 is similar to SB 1375 regarding the terms of the presumption, with the major difference being that it would apply to any person who experienced COVID-19-related death or disability between March 12, 2020 and December 31, 2021.
HB 2032 would amend Va. Code § 65.2-101 to cover domestic servants as employees.
HB 1985 seeks to amend Va. Code §65.2-402.1 to create a presumption that COVID-19 is a compensable occupational disease for healthcare workers who are directly involved in diagnosing or treating persons known or suspected to have COVID-19 (unless the presumption is overcome by a preponderance of competent evidence to the contrary). In order for the presumption to apply, COVID-19 must be established by a positive diagnostic test, an incubation period consistent with COVID-19, and signs and symptoms of COVID-19 that require medical attention. Additionally, COVID-19 must cause death, or a health condition or impairment resulting in total or partial disability. This presumption would not apply to any person offered a COVID-19 vaccine by their employer, unless a physician determines in writing that the immunization would post a significant risk to the person’s health. This presumption would apply to those who have sustained COVID-19-related death or disability between March 12, 2020 and December 31, 2021.
It is important to note that Va. Code §65.2-402.1 already includes a vaccine/immunization clause (currently Va. Code §65.2-402.1(D)), reading, “Whenever any standard, medically-recognized vaccine or other form of immunization or prophylaxis exists for the prevention of a communicable disease for which a presumption is established under this section, if medically indicated by the given circumstances pursuant to immunization policies established by the Advisory Committee on Immunization Practices of the United States Public Health Service, a person subject to the provisions of this section may be required by such person's employer to undergo the immunization or prophylaxis unless the person's physician determines in writing that the immunization or prophylaxis would pose a significant risk to the person's health. Absent such written declaration, failure or refusal by a person subject to the provisions of this section to undergo such immunization or prophylaxis shall disqualify the person from any presumption established by this section.”
HB 1818, SB 2080, and SB 1275 seeks to amend Va. Code §65.2-402 to add salaried or volunteer EMS personnel (after 5 years of service) to the list of eligible persons entitled to a presumption that a death, health condition, or disability caused by hypertension or heart disease as an occupational disease arising from their employment.
HB 2228, seeking to add repetitive motion injuries as being covered under the Act, has failed.
Workers’ Compensation Practice Group at McCandlish Holton defends workers’ compensation claims in all areas of Virginia from initial investigation to the trial and appellate levels of litigation.
We carefully balance aggressive advocacy with skilled diplomacy to successfully resolve claims. Contact Us.
