Recommendations by the Joint Legislative Audit and Review Commission – Part One

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:

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.