JLARC Reports on the Health of The Virginia’s Workers’ Compensation System and on Presumptions about Occupational Diseases

Posted on Monday, February 24th, 2020 at 9:53 am    

The Joint Legislative Audit and Review Commission (JLARC) is a Virginia organization that provides oversight to numerous state agencies including the Virginia Workers’ Compensation agency. The JLARC is specifically authorized to by the Virginia Code to conduct reviews and oversight.

In December 2018, JLARC began a review of the workers’ compensation system for the state and specifically reviewed how disease presumptions are handled. The main goals of the review were to:

  • Asses how promptly workers’ compensation claims were being examined and processed
  • Determine ow fairly the claims (including that Virginia Workers’ Compensation Dispute Resolution process was working)
  • Assess how well the protocols for reducing fraud were working
  • Review how well the state’s disease presumptions were working, whether the presumptions were right, and whether the evidence to prove or rebut the claims was reasonable

The Fundamentals of the Virginia workers’ compensation program

Workers’ compensation is designed to help workers who suffer injuries while doing their job or suffer an occupational illness because of their work environment. Employees who can’t work due a workplace injury or an occupational illness are generally entitled to three benefits:

  • Payment for loss wages (also called indemnity benefits). These are generally 2/3rds of the workers average weekly wage during the time he/she can’t do their job. It can also include additional wage loss payments if a worker has a permanent partial disability in a ratable body part. 
  • Payment for lifetime medical expenses related to the work injury.  This should include payment for hospital bills, doctor visits, treatment with physical therapists and other types of therapists, medical devices such as wheelchairs and prosthetics, and the cost of medications.
  • Vocational rehabilitation Some workers who can’t do their old job may be entitled to counseling and in some cases, payment for schooling so that they can obtain the skills and education to perform work in a different field that is within their permanent physical restrictions stemming from the work accident. That being said, most of the time, this is really not viewed as a benefit, but a way for the workers comp insurance carrier to reduce their obligation to pay benefits. 

Occupational illnesses and presumptions

Often a key to winning an occupational illness or disease case is determining whether the worker’s illness was due to workplace conditions and not conditions that he or she may have been exposed to outside of the hazardous work environment. Virginia law assumes that some jobs are so inherently dangerous that there is a presumption that if the worker did a certain job, that specific illnesses such as cancer are presumed to be the consequence of the job if they end up with that disease. A presumption that there is a relationship between a disease and a job makes it easier for the employee to be awarded his/her workers’ compensation benefits. Workers can still prove their illness was job-related if there is no presumption – but more evidence is required. Employers can rebut presumptions if they have compelling evidence that the workplace environment did not cause the occupational illness.

Some of the findings of the JLARC

The oversight review made the following findings:

  • Timeliness and fairness. Most claims are managed in a timely and fair manner. Disputes between workers and employers also involve the attorneys for each side. They also include the insurance companies for the employers, administrative staff to process claims, and those people involved in making the decisions on the merits of the dispute. JLARC found that most participants were reasonably satisfied with the timeliness and fairness of how the claims were handled. One noted exception was the timeliness of hearings in the Fairfax, Virginia office. Another exception was that the timeliness of when opinions by the Deputy Commissioners were issued could be improved.

JLARC noted that delays do happen while the insurers for the employers are reviewing whether the worker’s claim is compensable. For example, the JLARC stated that, for firefighters, insurance company delays in review their claims, was the second leading challenge.  Virginia is one of only several states that doesn’t have a statutory frame for when insurers must make a decision about compensability. 

  • Worker misunderstanding of the process. Another finding was that many workers do not have the information or help they need to file claims or to understand their rights to dispute denials of their claims made by insurers. It can be difficult to understand how to access and use Virginia’s workers’ compensation system.  Some of the key concerns regarding the Virginia Workers’ Compensation system included:
    • A poor website. The information is too scattered across the site;
    • The documentation about the process is “not well organized within each document,” and is unclear and incomplete.
    • Employers and the insurance companies for the employers don’t routinely give the workers the information they need to contest initial compensatory decisions.

This is one of our “pet peeves” as well here at The Work Injury Center. We are constantly receiving calls from potential clients who have essentially ruined their own cases due to this lack of information available to injured workers in the Commonwealth relating to Workers Compensation. 

It is very frustrating to us when we have to reject what might have been a perfectly compensable claim because the injured worker took certain unadvisable steps before checking with a worker’s compensation attorney or seeking out information on the subject.  

This is why we are constantly uploading new videos and producing articles such as this one to attempt to educate the public as much as possible about the Workers Compensation Law and process. It is our attempt to make up for the lack of information provided by the Virginia Workers Compensation Commission, as cited by JLARC. 

As a practical matter, employees should consult with experienced workers compensation Virginia lawyers to understand their rights, to process their claims correctly, and to get the help they need with each phase of the workers’ compensation process. 

Again, we strongly encourage anyone with any questions relating to workers compensation to also explore our website. We also have a wealth of videos both on our website as well as on our YouTube Channel relating to many, many issues facing injured workers. I do my best to “break it down” for you. If you’ve been hurt in an accident, we urge you to arm yourself with the extensive knowledge that we have made available to you. 

JLARC’s report stated that more than 200 firefighters who had a job-related injury or illness were not aware that they had the basic right to contest an insurance company denial of their claim to the Virginia Workers’ Compensation Commission. The remedy for that is to make sure you file a claim and get to a Hearing.  Many firefighters also stated that they thought reporting their diagnosis of heart disease or cancer to their employer was all that was required – when they had to take the additional step of filing a formal claim with VWC. The failure to file the claim can result in a full denial of benefits if a timely claim isn’t filed.

We see this as one of the most common misconceptions when folks call our office about a work injury. The most common statement is “I’m pretty sure my employer filed my claim for me.” 

We cannot repeat this enough: There is no such thing as your employer filing your claim for you.  The ONLY way to protect your rights is to file a CLAIM FORM (previously called a Claim for Benefits) with the Virginia Workers Compensation Commission within two years of the date of your work accident. 

 

  • Repetitive stress injuries. Virginia is the only state that does “not provide a remedy through the workers’ compensation system for injuries due to repetitive work activities, such as lifting boxes over several weeks (also known as “cumulative trauma injuries”).” This means that workers who develop bursitis, tendinitis, back pain, neck pain, and other injuries due to repetitive motions must pay for their medical care out of their own pocket even though their injuries are directly attributable to their work. JLARC states that these cumulative trauma injuries are not a driver of increased workers’ compensation premiums (based on data from other states) in contrast to the claims by Virginia employers that repetitive stress injuries are too expensive.
  • Exception: Carpal Tunnel Syndrome.  CTS is the only repetitive stress exception and may be claimed as an occupational disease if all of the proof lines up that the condition was caused by the employee’s work and nothing else. 

 

Virginia work injury attorney Joe Miller Esq. has been helping injured workers get the recoveries they deserve for more than 30 years. He’s helped thousands of workers in both the private and public sectors get strong results. He’ll guide you through process, help your file your claim, contest all efforts by the insurance company to deny or reduce your claim, and negotiate fair settlements when possible. To speak with Joe Miller, Esq., an experienced Virginia workers’ compensation lawyer, call me at 888-667-8295. or fill out my online contact form.