PTSD PRESUMPTION BENEFITS CHANGED AFTER THE END OF THE LEGISLATIVE SESSION
In Virginia, the state constitution limits how long the General Assembly can be in session. Legislative sessions are limited to 60 days in even numbered years and 30 days in odd numbered years.
After the legislative session ends, on the sixth Wednesday after adjournment, the General Assembly reconvenes for two purposes: to take final action on vetoed bills or bills with proposed amendments from the Governor, and to conclude work on the budget bill. The Constitution even specifies that in the reconvened session that other than returned bills and returned appropriations items and bills, “[n]o other business shall be considered…”
This year, a bit of “other business” affecting workers’ compensation found its way into the reconvened session. After having failed to pass on its own in the regular session, a bill to amend Va. Code §65.2-107 to change the limit on benefits for PTSD awarded via the presumption statute was incorporated into the budget bill HB1600, at page 779 out of 800 pages. Because it was quietly slipped into the back end of a budget bill considered by most to be a “must-pass” piece of legislation, this change to workers’ compensation law passed on May 2, 2025, with no attention paid to it. The entire bill became active upon passage.
The newly published 2025 Virginia Workers’ Compensation Act books contain the change to the overall limit to PTSD benefits. The new limit is raised from 52 weeks to 104 weeks.
This, of course, raises practical questions: What does this mean? To whom does this new 104-week limit apply?
The issue is whether and to what extent the law will be determined to be retroactive. The legislation itself did not specify retroactive application. The commonwealth of Virginia does not favor retroactive legislation. Yet sometimes legislation is viewed retroactively anyway. Aside from the General Assembly specifically stating in the legislation that it is meant to be retroactive, the other way that a law like this can sometimes become retroactive is where they deem the change to be “merely procedural” rather than substantive. Unfortunately, case law makes it pretty clear that a law that doesn’t do anything but change the remedy is procedural in nature, and also given the fact that this is a law that would only apply to employees of the state or one of its political subdivisions, a court could certainly decide that this is worthy of retroactive applicability.
How will this particular legislative change be applied? As yet, we do not know, but in our view, there are four different classes of claim where the change could potentially be found to take effect, which I list below with our assessment of the likelihood of the change applying.
Will the 104-week limit apply to:
Every claim that has ever arisen under the PTSD presumption. (Most likely not.)
Claims with active benefits entitlements that had not run out before May 2, 2025. (Still not likely, but possible)
Claims still awaiting adjudication but with a date of diagnosis before May 2, 2025. (A closer question but again we believe the new limit would not apply.)
Claimants diagnosed after May 2, 2025. (Yes, they certainly will be entitled to the new 104-week limit.)
At this time, we are recommending that claims be handled accordingly. There is some potential to challenge this statutory change as being made in violation of the “no other business” provision in Article IV, Section 6 of the state constitution, but it would be a significant challenge to do so, as this change was simply an amendment to a bill that was properly under consideration in the reconvened session. We do recommend denying any benefits in excess of 52 weeks for any claim with a date of diagnosis before May 2, 2025, and to appeal any opinions that state otherwise unless and until the Virginia Supreme Court weighs in on this issue.
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