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Last year, the General Assembly amended Virginia Code §65.2-402.1 to add a presumption of compensability for certain employees who were diagnosed with COVID-19. The bill became effective on July 1, 2021, but the amendments themselves made it so the presumption was effective retroactively back to March 12, 2020. That presumption also ended on December 31, 2021. Va. Code §65.2-402.1(F)(2): “The presumptions described in subdivision B 1 shall apply to any person entitled to invoke them for any death or disability occurring on or after March 12, 2020, caused by infection from the COVID-19 virus, provided that for any such death...

On January 10, 2022, CMS issued new revisions to the Worker’s Compensation Medicare Set-Aside arrangement (WCMSA) reference guide, which have significant impact on non-CMS approved Worker’s Compensation MSAs. Previously, the longstanding position and guidance from CMS has been that CMS approval of the proposed WCMSA amount is not required. However, in section 4.3 of the new reference guide, CMS has made an addition in their published recommendations regarding non-submitted MSAs. The new language on the guide states that “unless a proposed amount is submitted, reviewed, and approved using the process described in this reference guide prior to settlement, CMS cannot...

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In a recent ruling in the matter of Powell v. Automatic Equipment Sales of Norfolk, Inc., JCN 1961810 (Nov. 30, 2021), the Full Commission affirmed the Deputy Commissioner’s Opinion that the medical provider application at issue was barred by the doctrine of laches. In Powell, the claimant suffered an injury by accident on May 11, 1999, and was awarded medical benefits and temporary total disability for periods of disability through January 15, 2001. On July 5, 2020, the medical provider sought payment for services provided to the claimant in February, September, and October 2000. In their defense, the defendants argued...

In contrast to an actual award, a de facto award is “a legal fiction crafted by the courts, ‘a creature of case law not statutory law.'” Lysable Transport, Inc. v. Patton, 57 Va. App. 408, 414, 702 S.E.2d 596, 598 (2010) (quoting Ryan’s Family Steak Houses v. Gowan, 32 Va. App. 459, 465, 528 S.E.2d 720, 723 (2000) (Bumgardner, J., concurring)). Because it is a judge-made doctrine, [the courts] have been careful not to expand de facto awards beyond their initial purposes and parameters. Id. at 415, 702 S.E.2d at 599; Roske v. Culbertson Co., 62 Va. App. 512, 523,...

A Functional Capacity Evaluation (“FCE”) for the sole purpose of providing an impairment rating is not the employer’s responsibility. Founded on the idea that a visit to a physician for the sole purpose of obtaining a disability rating does not constitute “necessary medical treatment” under Virginia Code § 65.2-603, this principle is well-settled in the jurisprudence of the Virginia Workers’ Compensation Commission. That is, until recently. In defiance of its own precedent and the doctrine of stare decisis, the Commission has reversed course. In what can only be explained as a case of claimant friendly judicial activism, the Full Commission...

Held:  Thursday, November 18, 2021 from 2:00 PM to 3:00 PM EST Recording Agenda: Understanding Virginia’s Heart and Cancer Presumptions for First Responders Scott C. Ford, Partner  Audrey M. Marcello, Partner The Intersection between Workers’ Compensation, LODA (Line of Duty Act); Disability Benefit Plans; Social Security Disability (SSDI); and Virginia Retirement System (VRS) Brian J. McNamara, Of Counsel Rapid Fire Hot Topics Brian A. Richardson, Partner Kwabena A. Akowuah, Partner A Discussion of Collado and Continued Salary in Lieu of Workers’ Compensation Kwabena A. Akowuah, Partner

Since the start of the COVID-19 pandemic in 2020, providing guidance on how to respond to employee claims involving the disease has been an ever-evolving practice. July 1, 2021 saw a COVID-19 presumption become law, with retroactive effect. Additionally, the Department of Labor and the Virginia Department of Health also have reporting requirements that employers must observe. What follows is step-by-step guidance to the evaluation of a COVID-19 workers’ compensation claim, and a brief reporting guideline for employers to ensure compliance with state regulations. Upon receipt of a COVID-19 claim, consider the following issues: 1) Is the employee in question...

It should come as no surprise that when a claimant changes the facts surrounding how their injury occurred that a major red flag should be raised. After all, that is the easiest way to determine that the claimant has a major credibility issue. Nevertheless, there are times when the claimant does not just change his or her story but attempts to allege that upon further reflection they believe the injury simply happened in a different way. In those situations, it could be tempting to believe the claimant and assume that they just did not properly assess their surroundings properly. You...

Since the Full Commission issued its first Opinion in the case of Sclafani v. City of Charlottesville in 2018, the case has captured the attention of the workers’ compensation bar, as it appeared to be the latest in a series of cases in which the Commission and the Court of Appeals had been expanding the definition of “injury by accident.” Previous cases had blurred the definition of “injury by accident” from an event that is bounded within the temporal limits of an identifiable piece of work – in most cases very brief or even instantaneous, to a new definition that...