GENERAL ASSEMBLY UPDATE – SINE DIE EDITION

On March 12, the General Assembly reached its constitutionally mandated limit of 60 days in session (for even-numbered years), and both houses adjourned sine die. Any bills that did not pass both houses by sine die are in essence dead, at least until the next legislative session.

Bills that did pass both houses are signed by the Speaker of the House and the President of the Senate, and the final form of the bill is formally printed, or “enrolled.” The enrolled version is then sent to the Governor for his consideration. Within seven days of being presented, the Governor must either sign the bill, making it law; veto the bill, and send it back to the General Assembly for an override vote; or propose amendments to the law and send it back to the General Assembly for their consideration of those amendments. If the governor takes no action within seven days, the bill becomes law without his signature.

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) (03/08/2022 – Signed by House Speaker and Senate President)

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).

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 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) (03/11/2022 – Enrolled bill communicated to Governor).

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 – Would direct 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).

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)(03/08/2022 – Passed as part of a block vote 98-Y 0-N).

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).

SB677 – Cost of Living Adjustments (“COLA”) – Would allow COLA adjustments for claimants who are 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) (03/08/2022 – Passed House as part of a block vote 98-Y 0-N).

BILLS THAT FAILED TO ADVANCE IN THE SENATE AFTER CROSSING OVER –
These bills passed the House of Delegates, where they originated, but failed to pass the Senate.
They would have to be re-introduced in a subsequent legislative session and start from the beginning.
(The House passed all of the workers’ compensation bills sent to it by the Senate this session).

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 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) (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).

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. A preliminary economic impact projection showed 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.

As in the previous update, we note that there have been a mix of good and bad results in this session, likely reflecting the delicate balance of power that is inherent in a “divided” government.

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. A veto seems unlikely here. The more realistic hope is that the Governor would propose an amendment that limits this “compensable consequence” expansion of permanent and total disability to some reasonable degree, though it is unclear how that would take form.

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. Again, it seems unlikely that the Governor would veto this legislation, so the most realistic question is whether he will propose a change to that legislation to make the end-date of the presumption come sooner than December 31.

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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