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…)

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.

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. 

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:

• Current presumptions. 40 states have presumptions for firefighting and cancer. 34 states have presumptions for firefighting and heart disease. 15 states have presumptions for law enforcement and heart disease.
• Virginia’s current presumptions for first responders:
  • Cancer. There are presumptions for breast, leukemia, ovarian, pancreatic, prostate, rectal, and throat cancer
  • There are proposed exemptions, as of 2019, for brain cancer, colon cancer, and testicular cancer
  • There was another proposed exemption for post-traumatic stress syndrome (PTSD)
  • Cardiovascular disease
  • Respiratory disease. Workers generally don’t’ seek to establish this presumption.
  • Infectious disease. Workers generally don’t seek to establish this presumption.

83 studies on cancer, heart disease, respiratory disease, and PTSD among firefighters and police officers were analyzed and evaluated for quality and bias.

The findings of the John Hopkins University study

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.

• Firefighters are exposed to carcinogens. Firefighters can’t fully avoid exposure to these carcinogens – even when they are wearing protective gear.
• Every type of fire releases toxic and carcinogenic substance
• To what extent firefighters are exposed to these carcinogens depends on many factors. The main exposure routes are inhaling these toxins and skin absorption of the carcinogens.

The study found that the firefighters had an increased risk of the following types of cancer:

• Prostate cancer
• Throat cancer
• Brain cancer (proposed in 2019)
• Leukemia
• Rectal cancer
• Testicular cancer (proposed in 2019)

The Johns Hopkins study did not have enough evidence on the following cancer types:

• Colon cancer (proposed in 2019)
• Pancreatic cancer
• Breast cancer

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. 

Cancers which should be added to the firefighter presumption lists

The JLARC report, based on the John Hopkins study, recommended that worker’s compensation laws in Virginia create presumptions for the following cancer types:

• Brain cancer
• Testicular cancer

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.

Recommendations by the JLARC regarding current cancer presumptions for firefighters

Current cancer presumptions which should be maintained or could be subject to a sunset provision depended on the following:

• “Better data on firefighting-cancer associations will be available after new National Firefighter Registry is fully implemented.”
• “The General Assembly could maintain all current cancer presumptions in statute, including those with less scientific evidence, but add a sunset provision. Cancers with weaker scientific evidence to support occupation-disease associations could be removed if new scientific evidence does not increase support for including them.”

Costs for adding the three extra cancer presumptions – brain cancer, testicular cancer, and colon cancer

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.

• Insurance premiums for workers’ compensation for firefighters are expected to rise $269 in the first year.
• The insurance premium for the Line of Duty Act (LODA) are expected to rise $61 “per FTE in the first year.”

“Some additional liability would be created for firefighters no longer working with an employer and still within statute of limitations.”

Additional JLARC firefighting presumptions

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:

• 13 (65%) did not prove toxic exposure or a disability resulting from the cancer and denied benefits
• 4 (20%) were denied benefits for other reasons
• 4 (20%) did meet the occupational illness requirements and were awarded benefits

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:

• “Documenting exposure to carcinogens is extremely difficult and costly. Virginia firefighters are not equipped with technology to measure exposure” because the technology is expensive and requires expertise.
• The strict requirements are “counter to the purpose of presumption, which is to relieve firefighters of need to prove work caused their disease.”

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.

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.

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.

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:

• Total or partial disability – can be shown through wage loss, lost work time, or medical evidence
• Workers who seek only medical benefits should for a total or partial disability should only be required to submit medical evidence

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. 

Option recommendations

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):

• Option 1. “To add brain and testicular cancers to the list of cancers that are presumed to have been caused by firefighting.”
• Option 2. “To add colon cancer to the list of cancers that are presumed to have been caused by firefighting.”
• Option 3. “To specify that the presumptions for breast, colon, ovarian, and pancreatic cancers covered by the statute shall not apply to workers’ compensation claims submitted after June 30, 2030.” Prior to June 30, 2030, the state legislature could direct that there be a study of the latest national research to determine if there is an “association between firefighting and these cancers.”
• Option 4. “To require that workers’ compensation claimants have completed a minimum number of years of service as a firefighter or police officer, including any time spent in required training, to claim the cardiovascular disease presumption.”

Presumptive diseases and workers’ compensation

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:

• That the occupational illness/disease was caused by conditions that are unique to the worker’s type of employment
• That the occupational illness was not a disease that a worker would generally develop in the same way the general public would develop the disease.

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:

• Mental health disorders such as post-traumatic stress disorder
• Many different types of cancers

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.

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:

• Recommendation 10. The Virginia Workers’ Compensation Commission (VWC) should help injured workers understand the workers compensation process by developing and publishing a “comprehensive and easy-to-understand guide.” The guide should be published online. It should help all workers in Virginia who have been hurt while doing their job. The guide should include information about:
  • Their rights under the state Workers’ Compensation
  • The role the VWC plays in the workers’ compensation process
  • How claims are filed and resolved
  • What VWV services are available
  • How an injured worker can find an experience attorney to fight for them.

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. 

• Recommendation 11. The VWC should review all its online and written materials that communicate with employers, workers, and insurers – by January 1, 2021 – “to ensure that all materials are as clear, accurate, comprehensive, and accessible as possible.”
• Recommendation 12. The Virginia General Assembly should “consider amending § 65.2-200 of the Code of Virginia to create an ombudsman office within the Virginia Workers’ Compensation Commission.” This office should be run by a lawyer in good standing with the state bar. The office should:
  • “(i) provide timely and confidential educational information and assistance to unrepresented parties to help them understand their rights under the Workers’ Compensation Act and the various processes available to them
  • (ii) carry out duties with impartiality and not provide legal advice
  • (iii) maintain data on inquiries received, types of assistance requested, and actions taken.”

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. 

• Recommendation 13. The Virginia General Assembly should consider amending the state code to require that insurance carriers for employers and employers who are self-insured be required to have a notice in any letter that denies their workers’ compensation claim – that the worker has the right to contest the denial “through the Virginia Workers’ Compensation Commission (VWC). The notice should indicate:
  • (i) “VWC’s neutral role within the workers’ compensation system to adjudicate disputed claims
  • (ii) the need to file a claim for benefits with VWC within the applicable statute of limitations
  • (iii) contact information for VWC.”

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. 

• Recommendation 14. The VWC should “send a notice to all injured workers for whom it has received a First Report of Injury, but who have not yet submitted a claim for benefits to VWC and are still within the applicable statute of limitations,” which explains:
•   The worker’s rights to contest the denial of work injury benefits by the employer
  • That the VWC exists and what its role is in the state workers’ compensation process
  • The requirement to file the workers’ compensation claim within the statute of limitations period to preserve their right to claim benefits

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. 

• Recommendation 15. This recommendation pertains to cumulative trauma injuries. Cumulative trauma injuries are generally injuries to nerves, muscles, and tendons caused by continual wear and tear over time. Common cumulate trauma injuries include carpal tunnel syndrome, bursitis, tendonitis, Cubital Tunnel Syndrome and DeQuervain’s Tenosynovitis.

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:

• • “(i) develop options for covering workers’ cumulative trauma injuries through Virginia’s workers’ compensation system

(ii) summarize key policy considerations associated with modifying statute to cover cumulative trauma injuries.”

• • The research organization should take into consideration:
  • “(i) the annual number of cumulative trauma injuries in Virginia and other states
  • (ii) other states’ evidentiary requirements for claiming workers’ compensation benefits for such injuries
  • (iii) necessary changes to Virginia’s statutory provisions
  • (iv) impacts on workers, employers, and insurers.”

The VWC should submit the proposals to the House Appropriations and Senate Finance committees by November 30, 2020. 

• Recommendation 16. The Virginia General Assembly should consider changing the state code so that cumulative trauma injuries are compensable under the Workers’ Compensation Act. 

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. 

• Recommendation 17. The Virginia General Assembly should consider amending the state code to “authorize and direct the Virginia Workers’ Compensation Commission (VWC) to include in its existing biennial reviews of Virginia’s workers’ compensation medical costs a comparison of Virginia’s medical fees to Medicare reimbursement rates for the same services in Virginia.”
• Recommendation 18. The Virginia General Assembly should consider changing the state code to provide that psychological injuries can be compensable “even if the event causing the psychological injury could have been reasonably expected by the worker to have occurred as part of his or her job responsibilities.” 

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. 

• Recommendation 19. The Virginia Genera Assembly should consider amending the state code to create a method for “reviewing the scientific research on proposed new presumptions or modifications to existing presumptions under the Virginia’s Workers’ Compensation Act prior to legislative action.” The changes should consider how strongly. the occupation, the disease, and the relative hazards of the worker’s occupation relate to each other – and “the relevance, quality, and quantity of the literature and data available to determine the strength of evidence.”
• Recommendation 20. The General Assembly should consider “amending § 65.2-402.C of the Code of Virginia to provide that a firefighter may meet the toxic exposure requirement either by demonstrating:
  • (i) exposure to a toxic substance, as is currently required, or 
  • (ii) participation in responses to fire scenes, either during the fire or afterwards as part of clean-up or investigation.”

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.

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:

Legislative action

The JLARC recommends that the state legislature:

• Require, by statute, that the insurance companies for the employers be required to make a timely initial determination of the worker’s claim when the worker notifies the employer of any injuries or diseases. The Virginia Workers Compensation (VWC) should be required to monitor if and when the insurers are meeting this timeframe. The VWC should have the authority to impose financial penalties for noncompliance. 

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. 

• Require that that self-insured employers and the insurance carriers for the employers inform injured workers about their right to contest a denial of workers’ compensation benefits by the employer. It is truly amazing to me that so many folks are completely unaware of their rights under the law. Many believe that a company denial is the end of the road. They do not realize that the decision to deny their claim has been made by an insurance adjuster. In many cases, that adjuster is not in the Commonwealth and does not know the law. In other words, many times, the insurance adjuster is simply wrong. The only way to fix it is to move the case to hearing. Sometimes a defense lawyer who does know the law will get involved after we file the case, and after we present the facts or engage in depositions. convince the carrier that they have made a mistake, and the claim will then be accepted. 
• Expand the current workers’ compensation medical benefits to include compensation for “cumulative trauma injuries”  Currently, except for carpal tunnel syndrome and certain occupational diseases, to be compensable, an injury must have occurred at some definite time and involve a “sudden mechanical change” in the body. 
• Require that the VWC conduct a comparison of Virginia’s medical fees to the reimbursed fees allowed by Medicare – as part of its biennial review of state workers’ compensation expenses. Currently all Medical Fees are governed by a Medical Fee Schedule. 
• Change the “cancer presumption to allow firefighters to meet the toxic exposure requirement through evidence that they responded to fires.” This was covered in our previous article on this subject. 
• Make clear that the “disability requirement for claiming a disease presumption can be met through medical evidence.” As was discussed in the previous article, firefighters currently must identify the specific pathogen that they were exposed to. This is an undue burden on our sick first responders. All that should be required is a medical opinion. 
• Lower the years of service requirement for the presumption of cancer for firefighters from 12 years down to something less. 

Executive action

The JLARC also recommends that:

• The Fairfax workers’ compensation office employ at least one more deputy commissioner
• Update all written communication materials (for workers, employers, and insurers) so that information in the materials ins clear and accurate. The materials should include a comprehensive guide so that workers who are injured can understand their rights and what role the VWC plays in workers’ compensation cases. This is an excellent idea.

 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. 

• “Notify, as soon as practicable, all injured workers who have not yet submitted a claim for benefits about their right to dispute insurers’ denials and the need to file a claim directly with VWC within the statute of limitations to preserve their right to benefits.” I have seen this done in many cases, but the triggers to get this information out to the injured worker is not always consistent. And for a ‘scofflaw” employer who fails to file a First Report of Injury with the VWCC, the VWCC would not even be aware that a work injury occurred. 

Policy options

The JLARC recommends that workers’ compensation policies add the following:

• “Add brain, colon, and testicular cancers to the list of cancers presumed to be caused by firefighting. 
• Add a years of service requirement to the cardiovascular disease presumption.

Specific JLARC recommendations for the Virginia Workers’ Compensation System

The full list of recommendations includes the following:

• Recommendation 1. The VWC commission should hire one ore more deputy commissioners to the Fairfax office – so they can handle hearings and mediations.
• Recommendation 2. The VWC commission “should ensure that its chief deputy commissioner issues guidance to deputy commissioners that communicates that they have discretion to prioritize the order in which they write their opinions so that they can maximize the number of opinions issued within 21 days.”  This would be nice. I have seen the rate of the issuance of opinions vary greatly. In some cases, it can be a month, in others up to six months to receive an opinion. Remember, after a Hearing, basically nothing happens until the written opinion is rendered by the Deputy Commissioner who heard the claim.  That’s why the following are all good ideas. 
• Recommendation 3. The VWC should:
  • Change its electronic reporting system so that the number of days each deputy commissioner takes to issue opinions after the record is closed – is placed into the system.
  • Create quarterly reports which identify which deputy commissioners have taken more than 21 days to issues a majority of their opinions.
  • Require that the chief deputy commissioner work with his/her deputy commissioners to improve how promptly the deputy commissioners who are taking more than 21 days, on average, issues their opinions.
  • Require that the “chief deputy commissioner file an annual report on the timeliness of opinions to the full state Commission.

• Recommendation 4. THE VWC Commission should increase the amount of time slots that can be used for full and final mediation of workers’ compensation matters – by authorizing staff lawyers “to conduct full and final mediations in cases where neutral facilitation is selected by the parties. I agree with this, and I would go further by adding mediation locations as well. 
• Recommendation 5. The VWC Commission should discontinue using the mediation process for disputes that usually aren’t resolved through the mediation process. Currently, everything that is contested is automatically referred to alternative dispute resolution, but almost no one engages in it. ADR is usually only used in full and final mediations for settlement in the context of Workers Comp in Virginia. 
• Recommendation 6. The VWC Commission should make sure one or more deputy commissioners who are certified for conducting mediations are assigned to the Fairfax office. 
• Recommendation 7. The Virginia General Assembly should “consider amending Title 65.2 of the Code of Virginia to require:
  • (i) “workers’ compensation insurers, including those employers who are self-insured, to make a determination as to whether a worker’s injury or disease is accepted as compensable and notify the worker, as well as the Virginia Workers’ Compensation Commission, of this decision within 30 days of receiving notice of the injury or disease”
  • (ii) the VWC “enforce this requirement through monetary penalties” on the employer’s insurers and on employers who are self-insured – for noncompliance with the 30 day timeline. 

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. 

• Recommendation 8. The Virginia General Assembly should consider adding language to the state Appropriation Act directing that the VWC Commission report each year on:
  • “(i) the extent to which workers’ compensation insurers, including those employers who are self-insured, are making compensability determinations and notifying workers on

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.”

• Recommendation 9. The VWC Commission should, on request, be able to provide interpreters for mediations.

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.

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.

• Accommodation. This is something to be wary of. When an employee has been released to light duty and the employer “accommodates” the employee’s light duty restrictions imposed by his or her doctor, the employee’s radar should be up. Accommodation is often a pathway to the light duty getting fired for cause for some trumped up minor infraction. While one cannot refuse a reasonable accommodation, injured workers returning to “made up” jobs at their workplace should be very careful how they behave when returning to work. 

• Adjuster. The agent for the insurance carrier who reviews your claim and negotiates settlements. Employees should let an experienced workers’ compensation lawyer negotiate their work injury claim with the adjuster. 
• Authorized treating physician. (ATP) The doctor who is the primary healthcare provider for the injured worker and has been authorized by the workers compensation insurance company to treat the injured worker. 
• Carrier. The insurance company that pays and administers the workers’ compensation claim on behalf of the employer for the benefit of the employee.
• Claimant. In Virginia, the employee who was hurt or suffered an occupational illness and is requesting medical and wage benefits. 
• CMS. The Center for Medicare and Medicaid Services. They usually need to be consulted and the Medicare Set Aside must be approved by them if the employee and employer are going to enter into a settlement if the claimant is on Medicare or is likely to be on Medicare soon.
• Compensable. This means that the worker was an employee and that his/her injuries were due to workplace employment. Workers need to show their claim has merit, is compensable, before any medical bills or wage losses will be paid.
• Contested claim. This is when the employer denies liability for some reason such as that the worker is not an employee, the injuries were not due to work, or for some other reason.
• Date of injury. This is the date the workplace accident occurred. Employees generally must notify their employer on the date the workplace accident occurred that they have suffered an injury. Any questions of law are based on the date of injury.
• First report of injury. This is a form that the employee completes and submits to the state workers’ compensation commission notifying the commission that a worker was injured. A first report of injury is not the same as a legal claim. Employees should not assume that their claim will be proceed if an injury report is filed – even if the carrier makes payment. Employees need to file a proper legal claim with the help of an experienced workers’ compensation lawyer

• Functional capacity exam (FCE). A test that examines a worker’s physical abilities to perform certain tasks – to assess the type of work the employee can and can’t do. A separate portion of the test may also assist the authorized treating physician in providing a permanent  impairment rating for any injured body parts such as the extremities. 
• Impairment rating. After a worker reaches the point of maximum medical improvement, he/she should be examined to determine whether he/she has a partial or permanent impairment in particular body parts that are capable of being rated via the FCE and the authorized treating physician’s opinion. In Virginia this typically includes the extremities but excludes the back and neck. In North Carolina, the back and neck are ratable. 
• Indemnity. Refers to the portion of workers comp benefits that constitute the weekly checks paid by the workers compensation carrier to the injured worker while he or she is physically unable to work, or must work at reduced capacity in a lower-paying job due to his or her injuries.  
• Independent Medical Exam (IME). Essentially this is a second opinion usually ordered by the defense, to determine whether the treating physician’s assessment of the employee’s health and ability to return to work are accurate, or if any recommended treatment such as surgery is appropriate. In Virginia, an employee can go to his or her doctor of choice for a second opinion provided he or she pays for it; however, there is no formal procedure available in Virginia to obtain a second opinion or IME.  Virginia. In North Carolina, there is, in fact, such a procedure in place. In North Carolina an IME can be obtained at the workers compensation insurance company’s expense. The IME can be used by the employee to help show that that the employee should be entitled to additional treatment or that he or she is incapable of returning to work. 
• Light duty. Many workers can’t return to their old job because their doctor places physical limitations on what they can do – such as that the worker shouldn’t lift more than 20 pounds during work. Light duty is less strenuous work. The worker may do light duty work as a transition while he/she is healing to their old type of work. Light duty may ultimately be the only type of work an employee can do due to his/her injuries. 
• Marketing Your Residual Capacity to Work. If you are not under a current, ongoing Award in a Virginia Case, and if you have been put on light duty by your treating physician, then you need to do this, which is looking for work after light duty. Also, pretty much any North Carolina injured worker should look for work if he or she has been placed on light duty. If you are unable to find work within your restrictions, then this is one of the methods by which you may prove that you are entitled to ongoing temporary total disability benefits. 
• Misclassification. Often, employers will try to classify a worker as an independent contractor so that the worker won’t be eligible for workers’ compensation benefits. A misclassification occurs when the independent contractor should be classified as an employee and thus is eligible for work injury benefits.
• Maximum medical improvement (MMI). This is the stage when the treating physician determines that additional medical treatment won’t improve the employee’s health. It does not mean medical treatments should end since many workers need health treatments such as physical therapy to ensure their health doesn’t worsen. After an employee reaches MMI, he/she can be assessed for a partial or permanent disability. Workers generally should not consider settling their case until their health has reached the MMI state.
• Medicare Set Aside. (MSA)This is a set of figures used to cover the cost of future medical expenses factoring in the amount that Medicare will pay for the worker’s medical bills due to his/her eligibility for Medicare. If the injured worker currently qualifies for Medicare, it is a necessary part of the settlement to have any such amounts approved by Medicare first. Even if the injured worker is not currently eligible, if there is any anticipation of application to Social Security Disability, then it would be wise for the injured worker to set aside monies in a separately maintained account to cover work-related injury treatment as part of any settlement. 
• Nurse case manager. (NCM) A health professions hired by the employer to, in theory, helps the employee manage and keep his/her appointments. Often, the employer is mainly interested in having the nurse case manager find a reason to encourage the treating physician to return the employee back to full duty, thereby terminating benefits. Some unscrupulous NCM’s will also pull dirty tricks like giving last minute notifications of appointments, or sending letters that will not arrive in time regarding appointments so a case may be made for noncompliance with treatment requirements—another path to termination of benefits. 
• Permanent and total disability.  If found, this will entitle the injured worker not only to the maximum of 500 weeks, but lifetime weekly compensation benefits beyond the 500 weeks due to complete and total loss of any capacity to work. In Virginia and North Carolina, it is defined by a set of very specific injuries in order to be qualified for permanent and total disability. Typically one may not apply for permanent and total disability until the injured worker approaches the end of the 500 week maximum of his or her receipt of benefits. 
• Permanent partial disability or impairment (PPD or PPI). This is the assessment of how severe workers’ injuries are after he/she has reached MMI and what statutory work loss benefits should be paid. Usually expressed as a rating. 
• Temporary Partial Disability. (TPD) An injured worker would be entitled to TPD if he or she has physical restrictions due to the work injury, and is able to return to work at a lower-paying job then the pre-injury job. In such case, the injured worker is entitled to 2/3rds of the difference between the pre-injury and light job wage. 
• Temporary total disability (TTD). This is essentially the period when the worker is unable to work in any capacity and is receiving medical care and weekly checks from the workers compensation insurance company.  While a worker is on temporary total disability, he/she usually receives 2/3rds of his/her lost wages up to a statutory caps/limits of 500 weeks. This type of disability is classified as a temporary total disability (TTD) if the worker can’t do any work; however, in Virginia, an injured worker under an ongoing Award who is on light duty and is not being accommodated by the employer would also be entitled to TTD. Usually the same holds true in North Carolina under an accepted claim; however, a light duty employee should always be marketing his or her residual capacity to some extent in North Carolina, even on an accepted claim. 
• Settlement. Also known as a full and final settlement sometimes referred to as a “clincher” in North Carolina. A resolution of the employee’s overall claim usually occurs only after the worker has reached the MMI stage. Typically, the worker will receive a lump-sum payment to cover future medical bills and any future indemnity benefits that the worker would likely be entitled to if the claim was not settled. Adjustments may be made to the total amount due to reflect that the worker is getting the funds now and should be able to earn interest on the settlement amount.  (Present Value). 

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

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