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

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:

  • 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.