GENERAL ASSEMBLY UPDATE – FINAL EDITION

On April 11, the final deadline for the Governor to take action on bills passed by the General Assembly elapsed. Any bills not vetoed or sent back with proposed amendments by the Governor by that date would have been deemed passed.

This year, workers’ compensation bills passed relatively smoothly. The legislature and the Governor spent their energy on other matters, as they felt their way towards a new balance of power, with party control having changed from Democrat to Republican in the House of Delegates and the Governor’s Mansion, while Democrats retained control of the State Senate. With matters such as marijuana legalization, gun control, the state budget, education and criminal justice reform in the spotlight, workers’ compensation bills simply did not draw significant attention.

Each of the bills passed by the General Assembly this year were signed by the Governor without amendment. Several of those bills will cause significant change in the landscape of workers’ compensation in Virginia in the years to come.

NEWLY ENACTED LEGISLATION – BILLS ARE EFFECTIVE JULY 1, 2022.

HB689 – Home and Vehicle Modifications – This bill increased the home/vehicle modification lifetime limit in §65.2-603 from $42,000.00 to $55,000.00 and explicitly added 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. The bill also makes clear that these limits do not apply to devices listed in subsection A1, which includes dentures, hearing aids, prosthetic or orthotic appliances, as well as wheelchairs, scooters, walkers, canes, or crutches, as well as proper fitting and maintenance thereof, and training in the use thereof. (2/07/2022 – Passed the House of Delegates 99-Y 0-N) (3/3/2022 – Passed Senate 40-Y 0-N) (03/08/2022 – Signed by House Speaker and Senate President) 04/08/22 Governor: Approved by Governor-Chapter 213 (effective 7/1/22).

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) (03/08/2022 – Signed by House Speaker and Senate President). 04/11/22 Governor: Approved by Governor-Chapter 644 (effective 7/1/22).

HB1042 – Limitation on Actions – This bill adds a limitation in the form of a statute of repose to the cancer presumption statute, §65.2-402(C). Claims are not allowed more than 10 years from last injurious exposure or beyond 2 years from date of diagnosis, whichever occurs sooner, and there is now 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) (03/11/2022 – Enrolled bill communicated to Governor). 04/11/22 Governor: Approved by Governor-Chapter 497 (effective 7/1/22).

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) (03/04/2022 – Signed by House Speaker and Senate President) (03/11/2022 – Enrolled bill communicated to Governor). 04/11/22 Governor: Approved by Governor-Chapter 498 (effective 7/1/22).

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).

HJ 11 – Workers’ Compensation Insurance Premium – Directs the Workers’ Compensation Commission to study the effect of enacting legislation that prohibits carriers from charging premium based on bonus pay, vacation time and holiday time. The Senate Committee on Rules introduced a substitute to the original bill that reworded it to be less a direction towards a conclusion that the prohibition should be enacted and more towards a neutral inquiry of the effect of such a change. (2/11/2022 – Passed house 99-Y 0-N) (2/14/2022 – Assigned to Senate Committee on Rules) (3/4/2022 – Committee Substitute Printed) (03/09/2022 – Senate substitute passed by Senate by voice vote; House passed Senate substitute 99-Y 0-N) (Resolutions do not require the Governor’s signature).

SB351 – Legislative overruling of Merck & Co. v. Vincent – Claimants will now be allowed to bring permanent and total disability claims based on one injury sustained in the original compensable event, and a second injury sustained as a compensable consequence. Previously, both losses were required to have occurred in the original compensable event. (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) (03/08/2022 – Passed as part of a block vote 98-Y 0-N). 04/11/22 Governor: Approved by Governor-Chapter 530 (effective 7/1/22).

SB677 – Cost of Living Adjustments (“COLA”) – Allows COLA adjustments for claimants who are not receiving SSD benefits. This bill appears declarative of existing law and merely addresses typographical changes. (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) (03/08/2022 – Passed House as part of a block vote 98-Y 0-N). 04/07/22 Governor: Approved by Governor-Chapter 182 (effective 7/1/22).

NOTABLE FAILED LEGISLATION

Bills that fail to pass in one year are often the first bills in consideration in the next legislative session. We consider failed bills to be a vital clue to upcoming legislative priorities. There were extremely significant changes proposed this year that did not pass, but which will assuredly make a return in upcoming legislative sessions.

SB181 – COVID-19 Presumption – Changes the vaccine provision in the COVID-19 presumption to get rid of 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 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) (03/08/2022 – Left in Committee).

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) (03/08/2022 – Left in Committee).

HB153 – Drug Testing – Would have required drug testing for some unemployment recipients and for many workers’ compensation injuries. It did not make it out of committee. This bill was killed so quickly that it seems unlikely to return in its present form.

HB730 – Duty to Market – 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 – Adding Anxiety and Depression to PTSD Statute – 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 – Adding Sworn DMV Officers to Heart/Lung Presumption – 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 – Covid Presumption, Juvenile Justice Employees Included – Would have extended the COVID presumption –changes the end date for the presumption to 12/31/2022 and added 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. Given that this bill resulted from a previous JLARC (Joint Legislative Audit and Review Commission) study recommending this change, we deem it extremely likely that this bill will return in substantially similar form next year.

HB1056 – Cancer Presumption – 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 – Employee Definition, Domestic Servants – 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.

In all, this legislative session contained some unexpected positives, but at least as many unexpected negatives. The creation of a statute of repose for cancer presumptions was a new idea this year, but passed with virtually no serious resistance, and will bring a welcome element of finality to that subset of claims. Likewise, the defeat of the repetitive stress bill was extremely welcome. This bill has been repeatedly advertised as something the general assembly could pass and it would have virtually no effect on state budgets or overall workers’ compensation premiums. All experience tells us otherwise.

However, SB351 – the legislative overruling of Merck & Co. v. Vincent – passed the House and Senate without a single dissenting vote and was signed by the Governor without amendment. 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. We view this legislation as expanding a small subsection of claims by a significant degree. While permanent and total claims may never make up a large proportion of the overall number of claims in Virginia, their very nature makes them very costly. For example, a 20% increase in the number of successful permanent total disability claims would result in a significant increase in the loss per claim experienced by carriers. It seems likely that this will result in premium increases in the coming years.

Similarly, the need for another full year of a COVID presumption seemed excessive, but the bill extending the presumption through December of this year passed the House and the Senate unanimously and with vocal support from public sector unions and health care professional groups. The Governor’s signature on this bill was assured.

While the General Assembly is currently in Special Session, the limitations on the subject bills to be considered make it very unlikely to result in any bills that would affect workers’ compensation further. Unless another Special Session is called, it would appear that the legislative season is complete for workers’ compensation in Virginia.

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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