Workers' Compensation Practice in Virginia

Workers' Compensation Practice in Virginia
Publication Date: 2016
Electronic Forms: 5
Available Formats: Print (589 pages, softcover, 1 volume)
  Electronic (searchable PDF via flash drive, CD, or immediate download)
  Both Print and Electronic formats
Product #: 870

Information

Content Highlights:
  • The Workers’ Compensation Act
  • The Workers’ Compensation Commission
  • Coverage of Accidental Injuries
  • Occupational Diseases
  • Benefits Available to Injured Workers
  • Preparation of a Claim
  • Claims Handling
  • Contested Claims Procedures
  • Civil Suits and Third-Party Actions

"I wrote this book to fill the need for a practicing attorney dealing with workers’ compensation issues and cases in Virginia.  It contains legal and procedural information, including, among other topics, coverage, benefits, occupational disease, procedure, settlements,  attorney fees, and third-party cases."
- Lawrence J. Pascal, editor

This book is for the practicing attorney and contains all relevant published opinions from the Court of Appeals and Supreme Court of Virginia. It provides the practitioner with a practical manual and guide for the handling of workers’ compensation cases. For the first time, the 2016 edition includes editable electronic forms.

This 2016 edition contains the appellate opinions dealing with workers’ compensation issues and amendments to the Virginia Workers’ Compensation Act through 2015.


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Table of Contents

CHAPTER LIST

1. Introduction To The Workers’ Compensation Act And The Workers’ Compensation Commission

2. Coverage Of Accidental Injuries

3. Occupational Diseases

4. Benefits Available To Injured Workers

5. Preparation Of A Claim

6. Claims Handling

7. Contested Claims Procedures

8. Civil Suits And Third-Party Actions


CHAPTER 1: INTRODUCTION TO THE WORKERS’ COMPENSATION
ACT AND THE WORKERS’ COMPENSATION
COMMISSION


1.1 HISTORY AND DEVELOPMENT OF WORKERS’
COMPENSATION
    1.101 The European Experience
    1.102 The Common Law
    1.103 Modern Workers’ Compensation Laws
    1.104 Virginia Workers’ Compensation Law
    
1.2 GOALS AND PURPOSES OF WORKERS’
COMPENSATION LAWS
    1.201 In General
    1.202 Objectives
    1.203 Economic and Social Purposes

1.3 VIRGINIA WORKERS’ COMPENSATION COMMISSION
    1.301 Role of the Commission
    1.302 Role of Other Agencies
    1.303 Operation of the Commission
    1.304 Other Responsibilities of the Commission
    1.305 Organizational Structure of the Commission
    1.306 Confidentiality of Records
    
APPENDIX 1-1: HEARING DOCKETS

APPENDIX 1-2: RULES OF THE VIRGINIA WORKERS’
COMPENSATION COMMISSION

CHAPTER 2: COVERAGE OF ACCIDENTAL INJURIES

2.1 INTRODUCTION

2.2 EMPLOYER-EMPLOYEE RELATIONSHIP
    2.201 Employments Covered and Excluded
    2.202 Definitions
    2.203 Creation of Relationship

2.3 “INJURY BY ACCIDENT” “ARISING OUT OF” AND
“IN THE COURSE OF” EMPLOYMENT
    2.301 In General
    2.302 “Injury” Defined
    2.303 Compensability
    2.304 Two-Pronged Test

2.4 “ARISING OUT OF” DEFINED
    2.401 In General
    2.402 Injuries by Coemployees
    2.403 Unexplained Death and Incapacity During Employment
    2.404 Assault
    2.405 Robbery
    2.406 Recreational Injury
    2.407 Natural Environmental Causes

2.5 “IN THE COURSE OF” EMPLOYMENT
    2.501 In General
    2.502 Deviation from Employment
    2.503 “Going and Coming” Rule

2.6 INJURY BY ACCIDENT
    2.601 Definition
    2.602 Causal Relationship
    2.603 Second Accident
    2.604 Psychological Injuries
    2.605 Protracted Exposure (Cumulative Trauma)
    2.606 Pre-Existing Conditions
    2.607 Idiopathic and Unexplained Injuries
    2.608 Ladder Cases
    2.609 Heart Cases
    2.610 Back Injuries
    2.611 Burden of Proof

2.7 DEFENSES
    2.701 Willful Misconduct
    2.702 Fraud and Misrepresentation in the Employment
    Application

CHAPTER 3: OCCUPATIONAL DISEASES

3.1 INTRODUCTION

3.2 BACKGROUND
    3.201 In General
    3.202 Ordinary Diseases of Life
    3.203 Cumulative Trauma Caused by Repetitive Motion
    3.204 Post-traumatic Stress Disorder
    3.205 Occupational Disease Cases
    3.206 Carpal Tunnel Syndrome and Hearing Loss
    3.207 Pre-Existing Conditions Excluded

3.3 BENEFITS FOR OCCUPATIONAL DISEASES

3.4 CHECKLIST FOR OCCUPATIONAL DISEASE CLAIMS
    3.401 In General
    3.402 Accident or Occupational Disease
    3.403 Communication of Diagnosis of an Occupational Disease
    3.404 Statute of Limitations
    3.405 Timely Notice to Employer
    3.406 “Injurious Exposure”
    3.407 Employer at the Time of the Last Injurious Exposure
    3.408 Heart, Respiratory, and Cancer Presumptions
    3.409 Infectious Disease Presumption
    3.410 Pneumoconioses
    3.411 Cumulative Trauma Caused by Repetitive Motion
    3.412 Occupational Disease and Ordinary Disease of Life
    3.413 Aggravation of an Ordinary Disease of Life
    3.414 Medical Evidence
    3.415 Employee Able to Return to Light Duty Work—
    Evidence of Marketing
    3.416 When Do Benefits Begin
    3.417 When Do Benefits End?
    3.418 Calculating the Compensation Rate

3.5 MISCELLANEOUS OCCUPATIONAL DISEASES
    3.501 AIDS/HIV
    3.502 Allergic Reaction to Poplar Dust
    3.503 Asthma, Bronchitis, and Other Respiratory Conditions
    3.504 Carpal Tunnel Syndrome
    3.505 Chemical Exposure
    3.506 Deep Vein Thrombosis
    3.507 Dermatitis
    3.508 Digital Neuroma
    3.509 Frostbite
    3.510 Fume and Dust Exposure
    3.511 Gastroenteritis
    3.512 Hearing Loss
    3.513 Hepatitis
    3.514 Hernia
    3.515 Histoplasmosis
    3.516 Hypertension
    3.517 Interstitial Lung Disease
    3.518 Latex Allergy and Sensitivity
    3.519 Legionellosis
    3.520 Lyme Disease
    3.521 Manganism and Carbon Disulfide Exposure
    3.522 Mesothelioma
    3.523 Methicillin-Resistant Staphylococcus Aureus
    3.524 Mixed Connective Tissue Disorder
    3.525 Photosensitivity
    3.526 Plantar Fasciitis
    3.527 Pneumonitis
    3.528 Pneumothorax/Collapsed Lung
    3.529 Psychological Conditions
    3.530 “Sick Building Syndrome”
    3.531 Sinusitis
    3.532 Tobacco Smoke Exposure
    3.533 Tuberculosis
    3.534 Vaccines
    3.535 Vision

APPENDIX 3-1: MARKETING GUIDELINES

CHAPTER 4: BENEFITS AVAILABLE TO INJURED WORKERS

4.1 IN GENERAL

4.2 BASIC COVERAGE
    4.201 In General
    4.202 Benefit Period
    4.203 Average Weekly Wage Calculation
    4.204 Limitations
    4.205 Cost-of-Living Supplement

4.3 COVERAGE FOR INCAPACITY
    4.301 Total Incapacity
    4.302 Partial Incapacity
    4.303 Scheduled Loss

4.4 DEATH BENEFITS
    4.401 Nature of Benefits and Entitlements
    4.402 Amount of Compensation
    4.403 Dependency

4.5 MEDICAL BENEFITS
    4.501 Scope
    4.502 Required Services
    4.503 Reasonableness of Care and Peer Review
    4.504 Refusal of Medical Attention
    4.505 Miscellaneous Considerations
    4.506 Vocational Rehabilitation Training

4.6 SUBSEQUENT INJURIES AND THE SECOND
INJURY FUND
    4.601 In General
    4.602 Type of Injury and Employment
    4.603 The Second Injury Fund

APPENDIX 4-1 WAGE CHART

CHAPTER 5: PREPARATION OF A CLAIM

5.1 THE INTERVIEW
    5.101 In General
    5.102 The Facts
    5.103 Medical and Vocational Information
    5.104 Client’s Rights
    5.105 Conclusion of the Interview
    5.106 Follow-Up

5.2 INVESTIGATION
    5.201 In General
    5.202 Medical Reports
    5.203 Witnesses
    5.204 Visiting the Scene of an Accident

5.3 DISCOVERY
    5.301 In General
    5.302 Interrogatories
    5.303 Depositions
    5.304 Subpoenas
    5.305 Admissions
    5.306 Medical Examination

5.4 PROCEDURE IN AN UNCONTESTED CLAIM
    5.401 In General
    5.402 Award Agreement
    5.403 Termination of Wage Loss Award
    5.404 Change in Condition
    5.405 Lump Sum Payment

5.5 COMPROMISE SETTLEMENTS
    5.501 Compensation Claims
    5.502 Third-Party Suits

5.6 ETHICAL CONSIDERATIONS
    5.601 In General
    5.602 Pitfalls
    
APPENDIX 5-1: CLIENT INTERVIEW SHEET

APPENDIX 5-2: AUTHORIZATION TO DISCLOSE HEALTH
INFORMATION

APPENDIX 5-3: AWARD AGREEMENT

APPENDIX 5-4: FATAL AWARD AGREEMENT

APPENDIX 5-5: TERMINATION OF WAGE LOSS AWARD

APPENDIX 5-6: CONFIDENTIAL INFORMATIONAL LETTER
FOR AN EMPLOYEE WHO IS NOT REPRESENTED BY COUNSEL
AND SETTLEMENT CONTAINS A BLANKET RELEASE

APPENDIX 5-7: CONFIDENTIAL INFORMATIONAL LETTER
FOR AN EMPLOYEE WHO IS NOT REPRESENTED
BY COUNSEL

APPENDIX 5-8: REQUIRED INFORMATION FOR STRUCTURED
SETTLEMENTS

APPENDIX 5-9: AFFIDAVIT

APPENDIX 5-10: INTERROGATORIES OF CLAIMANT
PROPOUNDED TO DEFENDANTS

APPENDIX 5-11: INTERROGATORIES OF DEFENDANTS
PROPOUNDED TO CLAIMANT

CHAPTER 6: CLAIMS HANDLING

6.1 THE ELECTRONIC SYSTEM
    6.101 In General
    6.102 Electronic Case Files
    6.103 WebFile

6.2 CLAIMS REPORTS
    6.201 In General
    6.202 Electronic Filing Required
    6.203 First Report of Injury
    6.204 Subsequent Report of Injury
    6.205 Minor Injuries
    6.206 Penalty

6.3 UNCONTESTED CLAIMS
    6.301 In General
    6.302 Award Agreement
    6.303 Agreements to Terminate Benefits
    6.304 Practical Considerations

6.4 CONTESTED CLAIMS
    6.401 Filing a Claim
    6.402 Concurrent Jurisdiction
    6.403 Medical Evidence
    6.404 Order to Carrier
    6.405 Claimant’s Change in Condition Claims
    6.406 Employer’s Application for Hearings
    6.407 Referral to Docket

6.5 TYPES OF COMMISSION HEARINGS
    6.501 In General
    6.502 On-the-Record Hearings
    6.503 Evidentiary Hearings

6.6 DISCOVERY
    6.601 In General
    6.602 Scope
    6.603 Subpoenas
    6.604 Depositions
    6.605 Interrogatories
    6.606 Requests for the Production of Documents
    6.607 Requests for Admissions
    6.608 Production of Wage Information
    6.609 Failure to Comply With Discovery

6.7 HEARING PROCEDURE
    6.701 Nonsuit or Withdrawal
    6.702 Identifying Medical Reports
    6.703 Hearsay
    6.704 Witnesses
    6.705 Motions and Amendments

6.8 POST-HEARING PROCEDURE
    6.801 Post-Hearing Evidence
    6.802 Motions for Reconsideration or for Errors in Opinions

6.9 REVIEW BY THE COMMISSION
    6.901 In General
    6.902 Reviews of Decisions Accepting or Rejecting Claims
    and Applications
    6.903 Reviews of Hearing Decisions
    6.904 Reviews of Awards Based on Agreement

6.10 COMPROMISE SETTLEMENTS
    6.1001 In General
    6.1002 Procedural Requirements
    6.1003 Requirements for Petition and Order

6.11 PROCESSING SETTLEMENTS
    6.1101 Settlement Papers
    6.1102 Payment Generally
    6.1103 Lump Sum Payments
    6.1104 Fees and Costs

6.12 MEDIATION SERVICES
    6.1201 In General
    6.1202 Mediation Defined
    6.1203 Issues Appropriate for Mediation
    6.1204 Procedure

APPENDIX 6-1 20-DAY ORDER—PAYMENTS MADE

APPENDIX 6-2 CLAIM FOR BENEFITS

APPENDIX 6-3 20-DAY ORDER—CLAIM FILED

APPENDIX 6-4 EMPLOYER’S APPLICATION FOR HEARING

APPENDIX 6-5 MEDIATION REQUEST FORM

CHAPTER 7: CONTESTED CLAIMS PROCEDURES

7.1 THE PROCESS

7.2 NOTICE OF ACCIDENT OR DISEASE
    7.201 Notice to Employer
    7.202 Failure to Give Timely Notice

7.3 FILING A CLAIM
    7.301 Overview
    7.302 Forms of Filing
    7.303 How and Where to File a Claim
    7.304 Original Claims
    7.305 Employee Change in Condition Claims
    7.306 Employer Application for Hearing
    7.307 Post-Filing Procedures

7.4 HEARINGS
    7.401 Hearing Procedures
    7.402 Evidentiary Hearing

7.5 REVIEW BY THE FULL COMMISSION
    7.501 Procedure
    7.502 Briefing

7.6 APPEAL TO THE COURT OF APPEALS
    7.601 In General
    7.602 Notice of Appeal
    7.603 Filing
    7.604 Appeal Bond
    7.605 Record on Appeal
    7.606 Briefs
    7.607 Argument
    7.608 Rehearing
    
7.7 APPEAL TO THE VIRGINIA SUPREME COURT

7.8 COMPROMISE SETTLEMENTS
    7.801 Subject to Commission’s Approval
    7.802 Procedure for Approval

7.9 PAYMENT OF AWARDS
    7.901 Payment
    7.902 Penalty for Delayed Payment
    7.903 Payment Delayed by Review Request
    7.904 Interest

CHAPTER 8: CIVIL SUITS AND THIRD-PARTY ACTIONS

8.1 INTRODUCTION
    8.101 General Considerations
    8.102 Plaintiff’s Perspective
    8.103 Defendant’s Perspective
    8.104 Illustrative Cases
    8.105 Statutory Employer
    8.106 Borrowed Servant Doctrine
    8.107 Specific Instances in Which the Act May Control the
    Injured Person’s Cause of Action

8.2 PROCEDURAL CONSIDERATIONS
    8.201 Forum Selection, Estoppel, and Res Judicata
    8.202 Jurisdiction
    8.203 Conflict of Laws

8.3 INJURIES CAUSED BY FELLOW EMPLOYEES OR THIRD
PARTIES
    8.301 In General
    8.302 Intentional and Negligent Infliction of Emotional
    Distress, Defamation, and Sexual Harassment
    8.303 Assault
    8.304 Medical or Health Care Negligence
    8.305 Racial Discrimination

8.4 SUBROGATION
    8.401 Employer-Insurer’s Rights
    8.402 Intervention of Employer
    8.403 Management of Third-Party Claims
    8.404 Consent for Third-Party Settlements
    8.405 Disposition of Third-Party Recovery
    8.406 Workers’ Compensation Commission Approval
    
8.5 INDEMNIFICATION AND CONTRIBUTION
    8.501 Express Agreements
    8.502 Implied Agreements

TABLE OF AUTHORITIES

INDEX


Authors

Editor

Lawrence J. Pascal, Ashcraft & Gerel, LLP / Alexandria (Expand/Collapse Bio)

Lawrence J. Pascal, editor of this book and author of Chapters 4, 5, and 7, is a member of Ashcraft & Gerel, LLP. He represents many members of organized labor, as well as other members of the labor force, before the Virginia Workers’ Compensation Commission. Mr. Pascal earned a B.A. from St. Anselm’s College and a J.D. from George Washington University. He is the author of Virginia Workers’ Compensation: Law and Practice (LexisNexis 2011) and is listed in Best Lawyers in America. He is a member of the District of Columbia Bar, the Virginia and American Bar Associations (Insurance, Negligence, and Compensation Law Sections), the Virginia Trial Lawyers Association, and the Association of Trial Lawyers of America. He is also a member of the Larson’s Advisory Board and Virginia Workers’ Compensation Inn of Court. He received the AV Lawyer Rating from Martindale-Hubbell. He is a frequent lecturer on the subject of workers’ compensation before Bar groups, civic associations and labor organizations.

Authors

Craig A. Brown, Ashcraft & Gerel, LLP / Alexandria (Expand/Collapse Bio)

Craig A. Brown, author of Chapter 3, is a member of Ashcraft & Gerel, LLP. He attended the University of Virginia where he received a B.A. in 1985. Upon earning his J.D. degree from the University of Richmond in 1988, Mr. Brown was honored to serve as a law clerk to the Supreme Court of Virginia from 1988 to 1990. He was admitted to the Virginia State Bar in 1988, the District of Columbia Bar in 1989, and the Bar of Supreme Court of United States in 1996. Mr. Brown is a member of the Alexandria Bar Association, the American Bar Association and the Virginia Trial Lawyers Association. He received the AV Lawyer Rating from Martindale-Hubbell, the highest rating bestowed by that publication. Mr. Brown has also been selected by his peers for inclusion in The Best Lawyers in America and Virginia Super Lawyers in the field of workers’ compensation law.

James A. L. Daniel, Daniel, Medley & Kirby, P.C. / Danville (Expand/Collapse Bio)

James A. L. Daniel, co-author of Chapter 8, is the senior partner in Daniel, Medley & Kirby, P.C. where he practices in the areas of workers’ compensation, civil litigation, business law, and family law. Mr. Daniel received his A.B., cum laude, from Princeton University in 1967 and his J.D. from the University of Virginia in 1970. Mr. Daniel has been listed as one of the Best Lawyers of America since 1991 in the areas of civil litigation and workers’ compensation and has received an “A” rating from Martindale- Hubbell for more than 25 years. He is a member of the American Bar Association, the Virginia Bar Association, and the Danville Bar Association. He also formerly served on the Board of Directors and is a past president of Lawyers Helping Lawyers.

T. Brent Gammon, Daniel, Medley & Kirby, P.C. / Danville (Expand/Collapse Bio)

T. Brent Gammon, co-author of Chapter 8, is a partner with the law firm of Daniel, Medley & Kirby, P.C., where he practices in the areas of workers' compensation, insurance defense & general civil litigation, family law, and social security disability. He received his B.A. in History and Political Science from Hampden-Sydney College in 2003, and his J.D. from Florida Coastal Law School in Jacksonville, FL in 2007. Mr. Gammon is admitted to practice in Virginia and the U.S. District Court for the Western District of Virginia, as well as in Florida. His professional memberships include the Virginia Bar, the Danville Bar Association, and the Florida Bar. He currently serves on the Board of Directors of the Danville-Pittsylvania County Habitat for Humanity and the Board of Directors for the Danville After Hours Rotary Club.

James G. Muncie, Jr., Midkiff, Muncie & Ross, P.C. / Richmond (Expand/Collapse Bio)

James G. Muncie, Jr., author of Chapter 2, is an owner of Midkiff, Muncie & Ross, P.C., a firm specializing in workers’ compensation, labor and employment and civil litigation. He is co-chair of the firm’s Liability Section. Mr. Muncie, with over 25 years of trial experience, has been a frequent lecturer and has authored material on workers’ compensation law, employment and civil litigation issues. Mr. Muncie is the author of Workers’ Compensation Practice in Virginia, Chapter 2 and its updates (Va. CLE Law Foundation, Seventh Edition), since 1999. He has been named Best Lawyers' 2016 Richmond, Litigation - Insurance Lawyer of the Year, Best Lawyers in America (2005-2013 Editions), Top Attorneys in Virginia (2008 -present), Virginia Super Lawyers (2008-present) and Virginia Legal Eagles (2012). Mr. Muncie is a graduate of Virginia Polytechnic Institute and State University (B.A. 1984) and the University of Dayton School of Law (J.D., 1988), where he was a Regional Mock Trial Champion and a member of the National Mock Trial Team. Mr. Muncie is admitted to practice before all Virginia federal and state courts and is a member of the Virginia Association of Defense Attorneys. He is a founding member and initial Officer of the Virginia Workers’ Compensation Inn of Court. He is also a member of the Richmond and Chesterfield County Bar Associations.

Hon. James J. Szablewicz, Virginia Workers’ Compensation Commission / Richmond (Expand/Collapse Bio)

Hon. James J. Szablewicz, author of Chapters 1 and 6, is the Chief Deputy Commissioner of the Virginia Workers’ Compensation Commission and has served in that position since April 2004. In this capacity, he supervises the Judicial Division of the Commission, including the functions of the Commission’s Clerk’s Office, six Regional Offices, and all of the Deputy Commissioners state-wide. Before becoming Chief Deputy Commissioner, Mr. Szablewicz served as a Deputy Commissioner for two years and was engaged in the private practice of law on Virginia’s Eastern Shore for eleven years. Mr. Szablewicz received his B.A. in Political Science from Yale University in 1984 and his J.D. from the University of Virginia School of Law in 1987. He was inducted as a Fellow of the College of Workers’ Compensation Lawyers in 2014 and serves as the Secretary of the National Association of Workers’ Compensation Judiciary.

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