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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...

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...

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...

When – Thursday, September 15, 2022 from 7:30 AM to 4:30 PM EDT Where – Westin Hotel – 6631 W Broad Street, Richmond, VA 23230 We are excited to feature two dynamic Keynote speakers:  Brad Hurtig, Inspirational Speaker who survived horrendous workplace injuries and now advocates for workplace safety.  David Mitchell, author of “The Power of Understanding People”. In celebration of the return to an in-person seminar, we are giving away an Apple iPad to one lucky winner! Click here to download the full agenda. This program has been submitted for approval of CEU’s for the following credentials: CCM, CDMS, CRC, National Nurse FL...

Last year, the General Assembly amended Virginia Code §65.2-402.1 to add a presumption of compensability for certain employees who were diagnosed with COVID-19. The bill became effective on July 1, 2021, but the amendments themselves made it so the presumption was effective retroactively back to March 12, 2020. That presumption also ended on December 31, 2021. Va. Code §65.2-402.1(F)(2): “The presumptions described in subdivision B 1 shall apply to any person entitled to invoke them for any death or disability occurring on or after March 12, 2020, caused by infection from the COVID-19 virus, provided that for any such death...

On January 10, 2022, CMS issued new revisions to the Worker’s Compensation Medicare Set-Aside arrangement (WCMSA) reference guide, which have significant impact on non-CMS approved Worker’s Compensation MSAs. Previously, the longstanding position and guidance from CMS has been that CMS approval of the proposed WCMSA amount is not required. However, in section 4.3 of the new reference guide, CMS has made an addition in their published recommendations regarding non-submitted MSAs. The new language on the guide states that “unless a proposed amount is submitted, reviewed, and approved using the process described in this reference guide prior to settlement, CMS cannot...

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In a recent ruling in the matter of Powell v. Automatic Equipment Sales of Norfolk, Inc., JCN 1961810 (Nov. 30, 2021), the Full Commission affirmed the Deputy Commissioner’s Opinion that the medical provider application at issue was barred by the doctrine of laches. In Powell, the claimant suffered an injury by accident on May 11, 1999, and was awarded medical benefits and temporary total disability for periods of disability through January 15, 2001. On July 5, 2020, the medical provider sought payment for services provided to the claimant in February, September, and October 2000. In their defense, the defendants argued...

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...