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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...

Ford Richardson achieves significant reversal in Sclafani v. City of Charlottesville rejecting the holding that an injury can occur over a four-hour period in Virginia! More to follow!

This webinar took place on:  Tuesday, September 7, 2021 from 2:00 PM to 3:00 PM EDT Please click here to view the recording of this Virtual Seminar Agenda: Don’t Fall For It: A Discussion of Heights, Ladders, and Compensability in Virginia   Corinne M. Bahner, Associate Enacting Safety Rules that Stick Scott C. Ford, Partner Avoiding Becoming a Covered Statutory Employer Audrey M. Marcello, Partner Legalized Drugs: Is There a Place for Them in the Workplace? Roberta A. Paluck, Of Counsel

Days ago the Virginia Supreme Court issued an Opinion in Gladys Lopez, As Personal Representative of the Estate of Lizeth Lopez v. Intercept Youth Services, Inc., Record No. 191545 (August 5, 2021). In Lopez, the decedent, an Evening Support Counselor for at-risk youth in a residential program, was murdered by one of the residents. The trial court sustained the Plea in Bar filed by the employer. The Virginia Supreme Court held that the trial court did not err in finding that the exclusive remedy available to the Estate were those benefits available under the Virginia Workers’ Compensation Act (“the Act”)....