Posted on Wednesday, July 22nd, 2020 at 9:53 am
Workers have the right to file for workers’ compensation if they are an employee, if they are hurt on the job, and if the injuries they suffer stop them from working. Workers may also be entitled to work injury benefits if they suffer an occupational illness due to their job. There is no requirement to prove the employer was at fault. The claims process is normally easier than in a personal injury case. Still, there are many mistakes employees can make that can hurt their case. Just one key mistake can affect your entire claim or your ability to get all the compensation you deserve. (more…)
Posted on Friday, July 17th, 2020 at 4:14 pm
Workers Compensation Lawyer Joe Miller here explains the role of the Nurse Case Manager, particularly in Virginia. According to the law, they are supposed to help facilitate your treatment with your doctors. In reality, at least in Virginia, the Nurse Case Managers tend to act as proxies for the workers compensation insurance companies, and their primary interests are therefore aligned with them–which means–get you back to work even before you are ready, get you to the insurance-friendly doctors that they want you to see. and to the facilities that will skew your case in the insurance company’s favor.
Posted on Thursday, March 26th, 2020 at 11:10 am
Clearly many folks are concerned right now about the effect on their weekly compensation checks of any potential layoff of themselves and their fellow employees at work or company closures due to the severe economic downturn and mandatory closures related to the Coronavirus.
This is a very important question right now and also this particular question regarding layoffs happens to be an evolving and very active area of VA Workers Comp law.
The short answer is if you are currently under an ongoing, finalized Award for benefits, meaning an Award for weekly checks for either Temporary Total or Temporary Partial Disability, then NO, you will not lose your benefits; however, if you are NOT under an Award yet and your position is permanently eliminated or the layoffs are clearly permanent with no chance of re-hiring, then you will likely have a very difficult time of trying to obtain comp check benefits from the date of such layoff forward. You may only be able to claim benefits up until the date of the layoff. It’s not impossible to prove ongoing benefits in a permanent layoff situation, but you will be required to rise to a very high level of proof to show that your inability to obtain a job is due to your disability and not just to your job being eliminated permanently.
That being said, if the layoff is only temporary—as many will likely be in our current situation—then if you are not under an Award and on light duty, you would still be able to claim benefits; however, you would need to engage in active marketing of your residual capacity to work in order to prove your inability to find a job. And of course, you will likely end up at a Workers Comp Commission Hearing to prove you engaged in adequate marketing.
Of course, those held out of work 100% by their doctors due to their work injuries and have the physician’s work notes to prove it would not need to prove marketing.
If this all seems confusing, I encourage you to first see my video on the importance of being under an Open or Ongoing Award for benefits in Virginia. It’s important to understand what an Award accomplishes for you in Virginia.
So why is someone under an ongoing or Open Award in a better position compared to someone who is not in a layoff situation?
It’s because when you’re under an ongoing Award, that Award is a proclamation or Order by the Virginia Workers Compensation Commission that you are entitled to the weekly benefits stated in that Order on an ongoing basis, until proven otherwise by the defense. In other words, you have met your burden and you have won your case. Many times, the Award occurs due to an Award agreement, but the result is the same—once that Award has been entered by the Commission and the 30 day appeal period has passed, the Order is Final and you have won.
When you have an ongoing or Open Award for weekly benefits, it becomes the defense’s burden to prove you’ve been returned to full duty and that you are capable of performing your pre-injury work if they want to get out of paying you those weekly benefits. There are a few other ways for them to stop the Award, such as failure to comply with medical treatment or vocational rehabilitation, but they’re not relevant to our discussion right now.
If the defense cannot prove you are capable of a return to full duty, then you are going to remain under your ongoing Award and they still have to pay you your ongoing, weekly benefits even during the layoff and even if the layoff is permanent.
Now what about folks who are not under an Award yet, but are trying to prove one?
The case law is clear that for folks who are not yet under an Award, the difficulty of proving you are entitled to benefits really depends on whether the layoff is temporary or permanent.
This is because an injured worker who is not yet under an Award has no Order from the Commission regarding anything. Nothing has yet been proven, so the burden of proof remains on the injured worker to show he or she is entitled to benefits.
In a temporary layoff situation, if you are on light duty, assuming your employer does not accept you back at light duty status, so long as you are able to prove sufficient marketing of your residual capacity to work (i.e. looking for work elsewhere within your physical restrictions) during the temporary layoff, you should be able to prove you’re entitled to benefits. Of course, you will likely have to go to Hearing to prove that.
Again, if you are in a temporary layoff, and your authorized treating physician has you out 100% due to your injuries, then since you currently have no residual capacity to work per your doctor, you do not have to market or look for work. You would only need to prove your total incapacity with your doctor’s work notes and office notes.
Unfortunately, for those of you whose positions are eliminated and are fully and permanently laid off along with your coworkers, if you are on light duty and not yet under an Award, you will unfortunately find it much more difficult to be able to claim ongoing weekly workers comp benefits. The case law in such circumstance requires a higher level of proof to show that your economic loss is due to your injury and not the elimination of your job.
The Commissioners and Judges have reasoned in the case law that since you don’t yet have an Award, and your job has been eliminated, the burden is on you to prove economic loss due to your work injuries. And since the burden is on you for proof and since the reason you don’t have a job is because your job was permanently eliminated, then you need to prove your economic loss is actually related to your work injuries and not just the fact that your job does not exist any longer. In such cases, just doing the marketing/looking for light duty work as usual is probably not enough. There needs to be proof that not only can you not find a job, but the reason you cannot find a job is because of your work restrictions as set forth by your treating doctor. If you don’t have such proof, then the Commission will find that the loss is not related to your work injury. They will find that it is related to the fact that your job no longer exists.
Such proof may be through the hiring of an expert such as a vocational rehabilitation expert, and/or through some kind of testimony or other evidence from one or more of the potential employers where you applied that you could not be hired because your work restrictions could not be accommodated.
We think that the decision by the Court of Appeals back in 2016 which raised the standard of proof for permanently laid off employees was wrong and a harsh result, and in fact there were strong dissents by Judges on the case, but unfortunately those Judges were outvoted and that is the law in Virginia.
The only good news is that in many of the Full Commission decisions that have followed this 2016 Court of Appeals Case, the Commission has gone to great lengths to say it does not apply to the situation at hand. Clearly, the Full Commission also feels the Court of Appeals went too far and takes every opportunity to try to limit the harsh effects of that decision.
Also, just to be 100% clear, it is very important to distinguish between an Open or Ongoing Award and a Closed Award. A Closed Award is for some past period of weekly payments that has now ended because you have returned to work. Although such an Award contains a lifetime medical benefit and is also evidence that your claim is compensable (meaning there is no longer a defense that you did not have a legitimate, on-the-job injury) in terms of attempting to get your checks started again because you have been laid off, it’s almost like have no Award at all. In other words, if you’re on light duty, you would have to prove it’s a temporary layoff and you would have to prove marketing just like the folks with no Award at all. And just like those folks, you would not be able to prove any entitlement to ongoing checks if your layoff became permanent.
We hope this article has been helpful.
From all of us here at Joe Miller Law/The Work Injury Center, please stay safe, please follow the CDC COVID-19 Guidelines for prevention, and God Willing we will all get through this safely together.
Attorney Joe Miller has been representing injured workers in Virginia and North Carolina for over 32 years. If you have any questions about a worker’s compensation injury incurred by you or a loved one, please do not hesitate to reach out to us at 888-694-1671 or fill out our online contact form
Please do not wait to contact us, as there are time deadlines for filing your claim. If you fail to meet those deadlines, your right to benefits will be forever lost.
Posted on Saturday, March 21st, 2020 at 2:18 pm
The JLARC’s review of Virginia’s workers’ compensation laws focused on a variety of issues including the relationship between firefighting and 10 different types of cancer to determine what presumptions should apply. They study was performed by epidemiologists at Johns Hopkins University’s Bloomberg School of Public Health.
We discussed some of these issues in a previous article. The general findings of the study were as follows:
83 studies on cancer, heart disease, respiratory disease, and PTSD among firefighters and police officers were analyzed and evaluated for quality and bias.
The epidemiologists made the following findings regarding the validity of Virginia’s current and proposed cancer presumptions:
Johns Hopkins University epidemiologists determined that the best available evidence provides some support for most of Virginia’s current and proposed cancer presumptions.
The study found that the firefighters had an increased risk of the following types of cancer:
The Johns Hopkins study did not have enough evidence on the following cancer types:
No research was done on ovarian cancer. This is interesting, since pancreatic cancer and breast cancer are specifically listed in VA Code 65.2-402 ( C ) among those cancers to be presumed to be an occupational disease. As mentioned in a previous article on this subject, the mention of pancreatic cancer is inherently contradictory since it is really impossible to know what caused any pancreatic cancer based on our current state of scientific knowledge.
The JLARC report, based on the John Hopkins study, recommended that worker’s compensation laws in Virginia create presumptions for the following cancer types:
The reports added that colon cancer could be added to the list though the evidence for adding it wasn’t as strong as the other two cancer types.
Current cancer presumptions which should be maintained or could be subject to a sunset provision depended on the following:
Enactment of Virginia House bill 1804 (which adds several cancer presumptions) for firefighter should result in just about six new compensable workers’ compensation claims yearly – though the five year total is expected to be high.
“Some additional liability would be created for firefighters no longer working with an employer and still within statute of limitations.”
The JLARC also found that the “requirements to establish cancer presumptions for firefighters are unreasonably burdensome and appear counter to the purpose of the presumption.” This is the same comment I had made in my previous article on this subject.
Most disputed claims by firefighters for Virginia workers’ compensation benefits – between 2019 to 2018 – found that the firefighter would not be entitled to benefits – in large part because of the failure to prove exposure to the right substance.
Of the 20 firefighter/cancer cases heard during that timeframe:
The “presumption covers firefighters who have had “contact with toxic substance encountered in line of duty.” A big part of the reason for these denials was that firefighters were required to “prove exposure to specific carcinogen suspected to cause their particular type of cancer.” “Of 16 cases heard by VWC in which firefighters did not meet all requirements, the firefighter did not meet the toxic exposure requirement in seven.”
The Johns Hopkins scientists found that:
The study found that it would be sufficient if firefighters were required to show exposure to hazardous conditions that, in turn, exposed them to carcinogens.
Another finding by the JLARC study was that Virginia’s requirement for 12 years of continuous service was not supported by scientific evidence (studies have shown that less service time could cause cancer) and was the highest in the country (the next highest was 20 years). In fact, there is case law that says that assuming there is sufficient proof that a firefighter has a type of cancer caused by exposure to known cancer-causing toxins that match up to that cancer, he or she need only prove ONE SINGLE EXPOSURE to a fire to prove there was sufficient exposure. In that context, the 12 continuous years of service makes little sense.
Virginia workers’ compensation lawyer Joe Miller Esq. has been fighting aggressively for injured workers and workers who suffer occupational illnesses – for more than 31 years. He understands how dangerous firefighting, policing work, and other types of first response work are. For help with any illness claim based on your work, please phone Joe Miller, Esq., at 888-694-1671 or use my online contact form to speak with a strong advocate.
Posted on Thursday, March 19th, 2020 at 2:24 pm
Virginia and North Carolina Workers Compensation Attorney Joe Miller here explains why with some possible exceptions, it is unlikely that you would be able to pursue a compensable claim based on your contraction of the COVID-19 or Coronavirus at work. The possible exception might be someone whose sole job is to treat patients who are known to be infected with the virus, or test people for infection with the Coronavirus. Even then, it would be challenging.
Posted on Thursday, March 19th, 2020 at 2:16 pm
This is the third in a series of recommendations by the Joint Legislative Audit and Review Commission (JLARC) for how to improve the Virginia Workers’ Compensation system. Earlier articles discussed executive recommendations and legislative recommendations. This article is a continuation of the legislative recommendations.
Recommendations 21. The JLARC recommends that the Virginia General Assembly consider changing the Virginia Workers’ Compensation laws to address amending the criteria for establishing presumptions with respect to certain occupational diseases of first responders as follows:
Recommendation 22. The JLARC recommends that the state legislature consider amending the state workers’ compensation laws for certain occupations diseases of first responders to reduce the “years of service requirements from 12 years.” Right now, they must show continuous service of 12 years to be eligible for the disease presumptions.
Recommendation 23. The Virginia General Assembly should consider amending the current work injury laws so that the word “continuous” is removed from the years of service requirement part of § 65.2-402.c for first responders.
The JLARC also recommends that the following options be considered by the Virginia General Assembly regarding amending § 65.2-402 of the Code of Virginia (the state’s workers’ compensation law):
Presumptive disease laws, according to Business Insurance, have been in place in many states to help protect firefighters, police officers, and other first responders such as EMT personnel. The presumptions are used in occupational illness cases. Anyone who is hurt in a workplace accident has the general right to file a workers’ compensation claim provided that the accident caused their injuries, but occupational disease cases do not require a specific accident to have occurred.
Occupational disease claims are based on the premise that some workers are exposed to unique hazards at work that are beyond those to which the general public is exposed. Normally, workers have the burden of proof to show:
Unless the disease is one that is typically recognized in the case law and statutory law as an occupational disease, proving these two elements can be quite difficult. The presumption that a disease is occupational shifts the burden to the employer to show that the disease uniqueness and causation factors do not explain the worker’s illness. Otherwise, the disease is considered an “ordinary disease of life” and to be compensable, the injured worker must meet a standard of “clear and convincing evidence.”
Presumption laws in many states already help emergency personnel and other first responders by allowing for presumptions for heart and lung disease. Business Insiders says that there is push in many states to apply the presumption of compensability to other disorders such as:
The shift in presumptions is generally a balance argument. Employers argue that shifting the presumptions will increase their employer insurance costs. Opponents of expanding presumptions argue that public safety workers in some states have other types of occupational disease protections or that that emergency responders are trained to handle some of these disorders such as stress situations.
Advocates for firefighters, police officers, and other ER officers argue that the shift is only fair because these brave workers put their lives on the line every day. Opponents to expanding the presumptions argue that, “There’s greater scientific knowledge, but that doesn’t mean that it’s all attributable to the workplace, and municipalities are very vigorous in their opposition of expanding the costs of workers compensation.”
According to the International Association of Fire Fighters, over 40 states have some type of presumption allocation for public employees in the areas of heart and lung disease, cancer, infectious diseases, or mental health diseases.
“A 2013 study by the National Institute for Occupational Safety and Health found that firefighters have increased rates of cancer. That data has led to an influx of proposed cancer presumptions, said Jim Brinkley, Washington-based director of occupational health and safety at the International Association of Fire Fighters. Opponents argue that the scientific connections showing links between the workplace conditions and diseases are not strong enough yet.
As discussed in a previous article, although Virginia does have such presumptions in place for certain cancers amongst firefighters, Virginia has made the standards of proof difficult to meet in the event a firefighter should contract cancer, even listed cancers such as pancreatic cancer, since we have no idea what causes pancreatic cancer. That is why the JLARC has recommended a loosening of those standards for our first responders.
Virginia work injury attorney Joe Miller Esq. understands Virginia workers’ compensation law and keeps current with any changes. He understands that while many workers file claims based on workplace injuries, workers who spend a lot of time with an employer and become ill due to the type of work they do should also be able to demand workers’ compensation. For help with all workers’ compensation claims in Virginia, call Joe Miller, Esq., at 888-694-1671 or complete my online contact form to schedule an appointment. Cases are handled on a contingency fee basis.
Posted on Wednesday, March 18th, 2020 at 10:35 am
The Joint Legislative Audit and Review Commission (JLARC) followed up its recent review of the Virginia Workers’ Compensation system my making specific legislative, executive, and policy recommendations. Some of the recommendations, in addition to those discussed previously, include:
I have said previously that this is a great idea, and that I would go further and say that the VWCC should also designate a few Commissioners or Deputy Commissioners to further disseminate this information in video format that is clear and easy to understand. The most important thing that I think most injured workers do not understand is the importance of being under an Award Order and the process that is necessary to get that done.
Also an excellent idea. Some of the folks who you will get on the phone at the VWCC are very knowledgeable. Others not so much. The other problem is it is sometimes very hard to distinguish between giving legal advice and just providing information. I suppose the distinction would be if someone calls and asks “Should I file a Claim?” That is something the VWCC folks cannot tell you as that would be legal advice; however, they CAN tell you all of the necessary steps should you choose to file your claim and provide an easy guide to make it easy for that to happen.
As noted in the previous article, many injured workers do not understand that they have the right to contest the denial by the insurance company. They believe that is the end of the line. As noted previously, these decisions to accept or deny a claim are often made by adjusters who may not be knowledgeable about Virginia Law. These incorrect decisions can and should be challenged by filing a claim as soon as possible. Sometimes, all it takes is a little “education” of the adjuster on the part of our firm, and the claim becomes accepted.
Notices should have been sent to all applicable injured workers no later than January 31, 2020.
Also an excellent idea. So many calls to our office are from folks who never filed a claim because they did not know they had to or did not know there was a two-year time limit.
It is very sad to have to tell these folks that they no longer have a case.
The JLARC recommends that the Virginia General Assembly consider directing the VWC, through the Appropriation Act, to hire a neutral but reputable national research organization (skilled in workers’ compensation policy) to:
(ii) summarize key policy considerations associated with modifying statute to cover cumulative trauma injuries.”
The VWC should submit the proposals to the House Appropriations and Senate Finance committees by November 30, 2020.
As noted previously, other than carpal tunnel syndrome, under the current law, a compensable claim is only one where the injury occurred at some definite time and involved a “sudden mechanical change” in the body. Working over a period of time and developing spinal disease or bursitis from years of heavy labor, is, for instance, not compensable.
This is an interesting recommendation. Currently, there is a requirement that to make a claim for a psychological injury from work, one must have undergone a “sudden shock or fright.” It is presumed that those whose job it is to, for instance, investigate murders or other gory scenes would be reasonably expected to be exposed to such scenarios on a fairly frequent basis. Therefore, usually such persons would be precluded from bringing a claim for PTSD because an exposure to such an event is not a “sudden shock or fright,” because his or her job requires such exposure.
Virginia workers’ compensation lawyer Joe Miller Esq. has been fighting for injured workers in Virginia for more than 32 years. He’s helped thousands of employees obtain a just recovery for their medical expense, wage loss entitlement, and any other benefits that may apply. He helps workers when insurance companies try to force workers back to work too soon. To review your Virginia workers’ compensation case with Joe Miller, Esq., call me at 888-694-1671 or fill out my online contact form to make an appointment.
Posted on Monday, March 16th, 2020 at 10:20 am
The Joint Legislative Audit and Review Commission (JLARC) followed up its recent review of the Virginia Workers’ Compensation system with a series of recommendations for improving how to best benefit injured workers while respecting the rights of employers. The general recommendations are these:
The JLARC recommends that the state legislature:
We see this frequently in our practice. A worker is injured, sometimes severely, and the insurance company has given no clear answer on whether they are going to deny or accept the claim. Meanwhile, week after week passes with no incoming checks. Maybe the insurance company has elected to cover the medical treatment; maybe not.
Even after we file the claim, which typically results in the issuance of a 20-Day Order, meaning the insurance company is supposed to have only 20 days to respond to the claim, there is often no response from either the insurance company or the Commission. Many times, we have to call the Commission and ask them to place the matter on the docket due to the lack of response.
In still other cases, there is a response, but it is something vague such as “the matter is still under investigation.”
JLARC is certainly right about this. Insurance companies should not be permitted to indefinitely fail to clarify whether they are accepting or denying a claim. Of course, a reasonable period of time must be permitted in the event further investigation by the insurance company is required after a work injury. But there needs to be a time limit. For instance, North Carolina gives a 90-day deadline. If they can’t respond in that time frame, then the claim is considered accepted.
The JLARC also recommends that:
I would even go further and require some of the Commissioners to do a series of public service videos to break down the law and its requirements as clearly as possible for injured workers and their families, and put those videos up on the VWC Website.
Each and every day, we have to tell folks who call our office that they do not have a case because the injured worker failed to follow some requirement of the law, such as filing their claim within the two-year statute of limitations. It is not really their fault, because except for places like this, the information on the requirements to preserve and enforce your rights under the Virginia Workers Compensation Act are not widely publicized. This is on purpose, because the insurance companies—who have a large lobbying presence—do not want you to know this information.
The JLARC recommends that workers’ compensation policies add the following:
The full list of recommendations includes the following:
This is a great idea and long overdue. There need to be consequences for those insurance adjusters who just “sit on their hands” and do not respond to claims that are filed.
their decisions in a timely manner after receiving notice of work-related injuries and diseases and
(ii) actions taken by VWC to ensure the timeliness of these decisions.”
This recommendation states that the first report on this topic should be “submitted by VWC to the House Appropriations and Senate Finance committees no later than June 30, 2022.”
Virginia work injury attorney Joe Miller Esq. understands Virginia workers’ compensation law. He keeps current with any changes to the law and he understands the arguments insurance companies make to try to reduce or deny your claim. For more than 32 years, he’s been a strong advocate for injured workers. For help with your work injury or occupational illness claim, call Joe Miller, Esq., at 888-694-1671 or fill out my online contact form to schedule an appointment with an experienced Virginia workers’ compensation lawyer.
Posted on Thursday, January 30th, 2020 at 12:39 pm
Here’s a list of many of the worker’s compensation terms used in North Carolina and Virginia work Injury cases. The definitions may vary Depending on the state and the Issues at Hand.
The main thing to remember insofar as settlements in workers compensation are concerned is that all settlements are voluntary on the part of the workers compensation insurance company. Unlike Court cases, where a verdict can be obtained, in most cases, if the workers compensation insurance company does not want to settle, then they do not have to settle. If the carrier is paying what it has been Ordered to pay by the Commission, then that is all it is required to do. A skilled workers compensation lawyer can often help employees get the best settlement for their types of injuries and medical situation, but there are never any guarantees. Any attorney who says he or she can guarantee a settlement is lying.
North Carolina and Virginia work injury attorney Joe Miller Esq. understands the legal issues, understands how to negotiate with insurance companies, and understands how to review your medical conditions. He’s been a strong advocate for injured employees for more than 30 years. He’ll help you file and pursue your workers’ compensation claim. To schedule an appointment with attorney Joe Miller, call 888-694-1671 or fill out our online contact form
Posted on Wednesday, January 8th, 2020 at 9:52 am
OCCUPATIONAL DISEASE: PRESUMPTIONS FOR FIREFIGHTERS, POLICE, AND OTHER FIRST RESPONDERS
Normally, injuries and accidents that occur under Virginia Workers Compensation must consist of a specific traumatic event that caused a sudden anatomical change in the body to the injured worker; however, there are a whole class of cases that do not follow that approach and these are cases which involve an occupational disease. Sometimes these can be hard to prove, but the Virginia legislature has made it easier for police, firefighters, sheriffs, and other first responders and public law enforcement officers to prove occupational disease claims.
Without getting into all the specifics of proving an occupational disease, which is covered in other articles, suffice it to say that an occupational disease means a disease arising out of, and in the course of employment, but not including an ordinary disease of life to which the public is equally exposed.
What this definition means is the oftentimes, even though someone may be suffering from a disease that was directly caused by exposure for instance, to hazardous chemicals on their job, if it is the kind of disease not specifically recognized as arising directly out of the employment, and therefore an ordinary disease that the public may also get, such as a form of cancer, then the disease is not going to be recognized as an occupational disease. It will be considered an ordinary disease of life and the standards of proof for that are much higher than for a regular occupational disease.
The good news is that the Virginia legislature carved out an exception to this rule for police, firefighters, sheriffs, and other first responders and public law enforcement officers.
What this law says is that if you are a firefighter, police officer, or other first responder, then for certain diseases, such as respiratory diseases, hypertension or heart diseases, and certain types of cancers, it is to be presumed that the disease in question is in fact an occupational disease suffered in the line of duty.
Now this presumption can be overcome by the defense if, for instance, they can prove that the disease came about for exposure to something completely unrelated to work, and that the first responder was not in a position to be exposed to anything that might give rise to the disease in question.
Unfortunately, insofar as firefighters are concerned, the law as it stands contains some barriers and defects that make it hard to prove some occupational diseases.
The statute lists a number of presumptions for cancers that firefighters and other first responders are entitled to and they are for the cancers of leukemia, pancreatic, prostate, rectal, throat, ovarian, or breast cancer. The problem is that the law as it stands now also requires that the International Agency for Research on Cancer (IARC) recite in their listings that whatever the injured worker was exposed or came into contact with to during their job actually causes, or may cause the type of cancer the injured worker is suffering from. They also require that the first responder with one of these types of cancer have completed 12 years of continuous service.
The good news is that according to the case law, the injured worker need only prove one instance of exposure to the toxic chemical during his or her career that may cause cancer as identified by IARC.
The bad news is that at least one form of cancer on the list specifically has no known cause and that is pancreatic cancer.
Pancreatic cancer is one of the few cancers where medical science currently simply has no idea as to the cause. Apparently, the only thing that might contribute to it is cigarette smoke.
Because of this, many agree that the law as currently written, in this regard, for lack of a better word, is ridiculous. The current law in Virginia actually says that pancreatic cancer is one of the presumptive types of cancer that is considered to be contracted in the line of duty, but at the same time, the law also says you have to prove there was exposure to something that might cause it, and as we just said, nothing is known to do that except possibly cigarette smoke. So basically, the Legislature has drafted a law that—at least with respect to pancreatic cancer—is completely useless.
Moreover, a State Review Board has also noted that the law is lacking as it currently stands. The Joint Legislative Review Commission (JLARC) Audit Report of the Virginia Workers Compensation Commission that was released on Monday, December 17, 2019 says on page 3, in the headline: “Requirements to establish cancer presumptions are unreasonably burdensome and not supported by science.”
The JLARC specifically talks about firefighter benefits and how many claims are denied because the firefighter failed to prove proper exposure to the carcinogen that caused his or her type of cancer. The JLARC then suggests that all an injured firefighter should have to prove is that he or she fought fires and was exposed to smoke. They say that should be sufficient, given the toxic soup of chemicals that any scientist and industrial hygienist knows is released by any house or industrial fire. I certainly could not agree more.
We rely on our first responders to protect us. They put their lives on the line for us every day. Can we not make it as easy as possible for them to make a claim in the event they suffer because of the years of dedicated service to this cause?
Hopefully, plans are afoot in Richmond to change these laws so this never happens to any firefighters or other first responders who in the future develop cancer or any of the other diseases given a presumption in the law.
In the meantime, if you have been advised that you are suffering from an occupational disease, please do not wait to contact a worker’s compensation lawyer to assist you. You only have two years from the date that the diagnosis was first communicated to you by a physician to file a claim form with the Virginia Workers Compensation Commission.
If you have been exposed to toxic chemicals in your line of work, and your doctor supports that your disease came from that exposure, and you’re a member of a Union, know that your Union should be able to steer you in the direction of an expert such as an industrial hygienist, or other such expert, who can assist in proving your exposure to the relevant chemicals in your claim. You may very well need his or her testimony in order to win.
Joe Miller has been representing victims of on-the-job injuries and occupational disease for over 30 years. If you or a loved one has been injured on the job or suffered an occupational disease, please do not hesitate to call us toll free at 888-694-1671 or complete our online contact form