GENERAL ASSEMBLY UPDATE – CROSSOVER EDITION

February 15, 2022, marked an important date in the legislative calendar in Virginia, known as Crossover. That is the date by which bills that originated in one chamber of the General Assembly must “cross over” to the other chamber if those bills are to continue on in the current legislative session. Bills that fail to cross over by that date may not be considered further under the rules set by the General Assembly.

As a result of the 2021 elections, Virginia is experiencing divided political control of government for the first time since 2019, with the Republican party taking control of the House of Delegates and the Governor’s Mansion, and the Democratic party retaining the Senate. This means that bills that pass through one chamber easily may meet stiff resistance in the other chamber.

There were a number of bills related to workers’ compensation introduced this session, some of which have the potential to alter the landscape significantly, including a few that have remained in play beyond Crossover.

BILLS THAT PASSED BOTH HOUSES –
These bills have completed the legislative process and will be presented to the Governor.

HB689 – Home and Vehicle Modifications – Would increase the home/vehicle modification lifetime limit in §65.2-603 from $42,000.00 to $55,000.00 and would explicitly add scooters as a covered benefit. The House Committee amended the bill to reduce the increase on the lifetime limit to $55,000.00 from the bill’s original proposed figure of $75,000.00. (2/07/2022 – Passed the House of Delegates 99-Y 0-N) (3/3/2022 – Passed Senate 40-Y 0-N).

HB932 – Extending COVID presumption – This bill is a simple amendment to §65.2-402.1, changing only the end date of the COVID-19 presumption, which at present expired on December 31, 2021, to December 31, 2022. (2/11/2022 – Passed the House of Delegates 99-Y 0-N) (3/3/2022 – Passed Senate 40-Y 0-N).

HB1042 – Limitation on Actions – This bill would add a limitation in the form of a statute of repose to the cancer presumption statute, §65.2-402(C). Claims would not be allowed more than 10 years from last injurious exposure or beyond 2 years from the date of diagnosis, whichever occurs sooner, and there would be an overall age limit of 65 years, after which cancer presumption claims are barred regardless of exposure or diagnosis dates. (2/07/2022 – Passed house 99-Y 0-N)(2/28/2022 – Passed Senate 40-Y 0-N).

HJ152/HR14 – Elected Ferrell Newman to another 6-year term as a Commissioner of the Workers’ Compensation Commission, effective 2/1/2022. (1/24/2022 – Passed both houses)(Judicial elections do not require the Governor’s signature).

SB562 – Identical to HB1042 – Limitations on cancer presumption claims (Passed Senate 2/4: 25 Y 14-N) (3/1/2022 – Passed House 100-Y 0-N).

BILLS THAT CROSSED OVER BUT HAVE NOT YET PASSED –
These bills remain in consideration by the General Assembly.

HJ 11 – Workers’ Compensation Insurance Premium – Would direct the Workers’ Compensation Commission to study the effect of enacting legislation that prohibits carriers from charging premiums based on bonus pay, vacation time and holiday time. The Senate Committee on Rules introduced a substitute to the original bill (2/11/2022 – Passed house 99-Y 0-N) (2/14/2022 – Assigned to Senate Committee on Rules)(3/4/2022 – Committee Substitute Printed).

SB181 – COVID-19 Presumption – Changes the vaccine provision in the COVID-19 presumption to eliminate the “provided by the employer” language for the vaccine exception. This bill does not extend the COVID-19 presumption beyond its 12/31/2021 expiration date. (1/28/2022 – Passed the senate 22-Y 17-N)(2/22/2022 – Read first time and referred to House Committee on Commerce and Energy)(2/24/2022 – Subcommittee #2 in Commerce and Energy failed to report 5-Y 5-N).

SB226 – Notice to Employees – Creates statutorily required notice language that employers must include in correspondence to employees with any denial of a claim. (2/21/2022 – Passed senate 21-Y 19-N) (2/22/2022 – Read first time and referred to House Committee on Commerce and Energy) (2/24/2022 – Committee #2 voted to lay on the table 6-Y 4-N).

SB351 – Legislative overruling of Merck & Co. v. Vincent – Would allow permanent and total disability claims to proceed based on one injury sustained in the original compensable event, and a second injury sustained as a compensable consequence. (1/28/2022 – Passed senate unanimously) (2/22/2022 – Read first time and referred to House Committee on Commerce and Energy) (3/3/2022 – Reported from Committee 22-Y 0-N).

SB677 – Cost of Living Adjustments (“COLA”) – Would allow COLA adjustments for claimant who is not receiving SSD benefits. This bill appears declarative of existing law. (2/10/2022 – Passed Senate 40-Y 0-N)(2/22/2022 – Read first time and referred to House Committee on Commerce and Energy) (3/3/2022 – Reported from Committee 22-Y 0-N).

BILLS THAT DID NOT CROSS OVER –
These bills are for all intents and purposes defeated for this legislative session,
though it is not uncommon to see unsuccessful legislation revived in the next legislative session.

HB153 – Would have required drug testing for some unemployment recipients and for many workers’ compensation injuries. It did not make it out of committee.

HB730 – Would have codified specific exceptions within §65.2-502 to the need to market residual capacity, based on age, employability, and similar factors. The bill did not make it out of committee.

HB 742 – Would have added anxiety and depression as conditions that would be covered under the PTSD statute (requiring a significant and shocking qualifying event but providing limited treatment duration). This bill moved through Commerce and Energy and was referred to the House Appropriations Committee, Compensation and Retirement subcommittee. There was a preliminary economic impact projection showing a 50% increase in PTSD claims with an overall increase in medical expense of 5.49%. The bill did not advance out of that subcommittee.

HB926 – Would have added DMV sworn officers to heart/lung presumption statute. This bill moved through Commerce and Energy and was referred to the House Appropriations Committee, Compensation and Retirement subcommittee. The bill did not advance out of that subcommittee.

HB995 – Would have extended the COVID presumption by changing the end date for the presumption to 12/31/2022 and adding Juvenile Justice employees to the heart/lung presumption. This bill did not advance out of the Commerce and Energy Committee.

HB1002 – Repetitive Stress Bill – Would have added to occupational disease statute §65.2-400:
In addition, “occupational disease” includes injuries or diseases from conditions resulting from physical stressors, including repetitive and sustained motions, exertions, posture stresses, contact stresses, vibrations, or noises. Repetitive and sustained physical stress is not required to have occurred over a particular period of time, so long as such period can be reasonably identified. Notwithstanding prior decisions to the contrary, any such injuries shall be covered injuries if shown to arise out of and in the course of the employment as set forth in this section.”
This bill did not advance out of the Commerce and Energy Committee. It was laid on the table in a 6-4 vote.

HB1056 – Would have reduced the years of service requirement from 5 years to 3 years for the cancer presumption in §65.2-402(C). Did not make it out of Commerce and Energy Committee.

HB1196 – Would have brought domestic servants under the definition of “Employee” under the Workers’ Compensation Act. This bill did not make it out of the Commerce and Energy Committee.

Thus far in the legislative session, we have seen the division between House and Senate in their priorities for workers’ compensation legislation. The creation of a statute of repose within the cancer presumption statute is a small but welcome improvement in presumption law. The legislative defeat of the repetitive stress bill and the bill to add anxiety and depression to the PTSD statute are very positive developments for employers and insurers.

However, SB351 – the legislative overruling of Merck & Co. v. Vincent – Passed the House and Senate without a single dissenting vote, which is cause for concern. Though permanent and total disability claims make up only a small percentage of all claims, allowing permanent total claims to proceed based on a compensable consequence would likely expand the total number of such claims exponentially.

Likewise, with COVID-19 shifting from pandemic status to endemic status in real-time, the need for another full year of a presumption of compensability should be in question; however, the bill extending the presumption through December of this year passed the House and the Senate unanimously. It seems unlikely that the Governor would veto this legislation, so the most realistic question is whether he will propose change to that legislation to make the end-date of the presumption come sooner than December 31.

The General Assembly’s regular session is limited to 60 days in even-numbered years under Article VI of the Virginia State Constitution. Day 60 of this year’s session, sine die adjournment, is on March 12, 2022. Once the General Assembly’s session has concluded, we will provide additional updates.

Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.

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