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One Dollar Bill

Employer Issues in Workers’ Compensation: Undocumented Workers

Employees working for an employer covered by the Virginia Workers’ Compensation Act are entitled to monetary benefits when a work-related injury causes a total loss of wage-earning capacity, such as where the worker is unable to return to his or her job because of a temporary or permanent injury.  This applies equally to unauthorized or undocumented workers in the United States. However, the Virginia General ...
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The Surveillance Chronicles, II

Here's another gem for you. A postal worker was receiving workers' compensation benefits - and has now been convicted of criminal fraud. The claimant was spotted on the television show The Price is Right, waving her arms and even spinning the 'big wheel' - twice! Social media - and even regular old television it seems - can be an effective surveillance tool. More on that to come ...
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The Princess and the Pea: Liability for Prescription Mattresses?

When is a mattress a covered medical expense under the Virginia Worker's Compensation Act? The answer may change depending on the facts of the case. The general rule is that orthopedic type mattresses do not meet the definition of necessary medical attention under Virginia Code § 65.2-603. The Commission has consistently held that mattresses do not meet the definition of "necessary medical attention." Hutcherson v. Washington ...
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Carrier Prevails in Medical Bill Dispute

In the absence of a reimbursement agreement with the medical provider, workers' compensation carriers in Virginia are required to pay medical providers according to the prevailing community rate as provided by Va. Code Section 65.2-605 and Rule 14 of the Virginia Workers' Comensation Commission Rule 14.  In a dispute, the carrier bears the burden of establishing that the charges do not meet the community standard.  ...
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U.S. Supreme Court – A Houseboat is not a Vessel

The Supreme Court recently issued an opinion that may have the effect of permitting more injured workers to fall within the realm of the Longshore and HarborWorkers Compensation Act (the “ Longshore Act”) but excluding them from the Jones Act. In Lozman v. City of RivieraBeach, the Court further addressed the issue of whether or not a particular structure is a “vessel." The opinion involved ...
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I Would’ve Offered Light Duty, But I Fired Him . . .

As a result of the 2009 decision by the Virginia Court of Appeals in Shenandoah Motors, Inc. v. Smith, 53 Va. App. 375, 672 S.E.2d 127 (2009), the framework for challenging claims to post-termination partial disability benefits changed significantly. It used to be the case that in order to bar a claim to post-termination partial disability benefits, the employer was required to show the following: (1)        ...
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Introducing Our New Commissioner . . .

A workers' compensation attorney out of Richmond has been elected to the Workers' Compensation Commission. R. Ferrall Newman will fill the now vacant seat, the one that is designated as the "neurtral" on the three-member Commission. He will join the designated "employer advocate," Commissioner Williams, and the designated "claimant advocate," Commissioner Marshall, for a six-year term beginning on March 1, 2013 ...
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The Surveillance Chronicles

Whether or not to incur the expense of surveillance in a workers' compensation case is a difficult question. Even if you feel it in your adjuster gut that this claimant is faking, catching the fraud on video is another matter. And even if you do get video of the claimant carrying groceries in violation of her 10 pound lifting restriction, often times doctors are still ...
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Container Repair Facilities and Longshore Coverage

Two recent U.S. Court of Appeals decisions analyze the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) coverage requirements with regards to shipping container repair facilities. Under the LHWCA situs requirement, the place where an injury occurs must 1) have a geographic nexus with maritime activity; and 2) a functional nexus with maritime activity.  For the status requirement, a worker must be a maritime employee. In ...
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A security guard may be covered under the Longshore Act if his work is integral to shipbuilding.

The 1984 Amendments to the Longshore and Harbor Workers’ Compensation Act made it clear that employees who exclusively perform “office clerical, secretarial, security, or data processing work” are not covered by the Act so long as they are covered by the applicable state workers’ compensation act.  33 U.S.C. §902(3)(A). In a recent case, Gelinas v. Electric Boat Corp., 45 BRBS 69 (2011), the Benefits Review ...
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Attitude Matters

Do you have a claim, or two, on your desk where the claimant just seems determined not to get better? I do not mean to offend any injured workers, nor am I lumping all injured workers into any pigeon hole or stereotype, but if you are feeling frustrated or overwhelmed by the sheer number of cases on your desk, take a look at this video. May it ...
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Amount of Benefits to be Determined by the Date of Injury, Not the Date an Award is Issued, per the US Supreme Court

On March 20, 2012, the U.S. Supreme Court announced its decision in Roberts v. Sea-Land Services. This case involves the Longshore and Harbor Workers’ Compensation Act (LHWCA), which provides compensation in cases of disability but caps benefits at twice the national average weekly wage for the fiscal year in which the injured worker is “newly awarded compensation.”  The question here was whether the determination as to ...
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HB 153 is now Chapter 654 of the Virginia Code

On April 6, 2012, Governor McDonald signed HB 153, which excludes a person who suffers an injury on or after July 1, 2012 from coverage under the Virginia Workers' Compensation Act if there is jurisdiction under either the Longshore and Harbor Workers' Compensation Act or the Merchant Marine Act of 1920. The full text of the new law can be found here, and is located ...
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Concurrent Jurisdiction is a Thing of the Past in Virginia

Virginia has always been a “concurrent” jurisdiction state. "Concurrent” in this context simply means that in some states there are some injuries that are covered by both the state’s workers’ compensation law and by the federal Longshore & Harbor Workers' Compensation Act. A state that is listed as “exclusive” on the other hand has amended its workers’ compensation law with language to the effect that if you are ...
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Child and Spousal Support Withholding Orders

Courts and administrative agencies may order the deduction of money from an employee’s income for payment of child or spousal support.  Income is defined as any periodic form of payment, and includes wages, salaries, commissions, bonuses, disability benefits, retirement or pension payments, interest from principle, and workers’ compensation benefits. Virginia employers must honor an income withholding order or notice for child or spousal support from ...
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Yes, That’s My Employee But Someone Else Caused His Injury – Make Them Pay

When an employee suffers an injury that arises out of and in the course of his or her employment, the Virginia Workers’ Compensation Act limits his or her remedies for work-related injuries to a workers’ compensation claim against the employer.  Thus, workers’ compensation is referred to as the “exclusive remedy” available to an injured worker.  In many cases, this works to the advantage of the ...
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Surveillance Can Be Dangerous – and Not Just to Your Claim

As I sat down to draft my blog this week, the most obvious thing that came to mind was a Thanksgiving/Workers' Comp connection. I suspect there are some really interesting "Thanksgiving" cases out there. I can imagine an amusing story about a back strain from lifiting a turkey, or even a claim for psychological trauma as a result of having to choose between nuts and brown sugar or ...
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Fourth Circuit Confirms that Even ALJs are Bound by the U.S. Supreme Court

Workers' compensation claims filed pursuant to the Longshore & Harbor Workers' Compensation Act are formally adjudicated by the Office of Administrative Law Judges (ALJ) ALJs are not Article III judges under the judicial branch of the government; rather, they are considered to be part of the executive branch. While it is often true that many procedural rules and rules of evidence are relaxed, Article I judges, and in particular ALJs, do ...
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VWCC EDI Upates

The Virginia Workers’ Compensation Commission has updated several documents related to its EDI program. To view these changes, visit the VWCC website where you will find the Commission's Final Implementation Guide and IG Post Publication Change Log ...
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Physician Panels – To Provide or Not to Provide – That is the Question

After receiving notice of an accident or occupational disease from an employee, employers are required to provide the employee with a panel of physicians from which to select a treating physician.  If the employer does not provide a panel, the employee may elect to receive treatment from any healthcare provider he or she chooses. What constitutes a “proper panel” of physicians?  The Virginia Workers’ Compensation ...
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