Workers’ Compensation Defense

COVID-19 And The Longshore And Harbor Workers’ Compensation Act

COVID-19 And The Longshore And Harbor Workers’ Compensation Act

While many states, including Virginia, have issued stay at home orders to help reduce the number of persons infected with COVID-19, most ship builders, ship repairmen, terminal and harbor workers are essential employees and must work despite the risk of catching and/or spreading the disease. It is not hard to imagine that these employees may inevitably get sick and claim benefits under the Longshore Act ...
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Coronavirus And Virginia Workers’ Compensation Part II:  Burdens Of Proof And The Stay-At-Home Order

Coronavirus And Virginia Workers’ Compensation Part II: Burdens Of Proof And The Stay-At-Home Order

This article is a follow up to the Coronavirus and Virginia Workers’ Compensation article found HERE and deals with how social distancing precautions and the Governor’s stay-at-home order may impact the Virginia workers’ compensation treatment of Coronavirus claims.  As previously discussed, it seems likely that Coronavirus claims will fall within the ‘ordinary disease of life’ category of claims under the Virginia Workers’ Compensation Act.  These ...
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Coronavirus and Virginia Workers’ Compensation

Coronavirus and Virginia Workers’ Compensation

How would the Virginia’s  Workers’ Compensation system deal with a virus like the Coronavirus (COVID-19)?  It is not to hard to imagine a scenario where a workplace outbreak of the virus leads to multiple worker’s compensation claims. Your workplace remains open, despite the closure of a number of schools and government offices.  After a few days a number of employees begin to call out sick.  ...
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Coronavirus and Virginia Workers’ Compensation

Coronavirus and Virginia Workers’ Compensation

How would the Virginia’s  Workers’ Compensation system deal with a virus like the Coronavirus (COVID-19)?  It is not to hard to imagine a scenario where a workplace outbreak of the virus leads to multiple worker’s compensation claims. Your workplace remains open, despite the closure of a number of schools and government offices.  After a few days a number of employees begin to call out sick.  ...
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Virginia’s Workers’ Compensation And Undocumented Workers: Are Employers Liable For Paying Benefits?

Virginia’s Workers’ Compensation And Undocumented Workers: Are Employers Liable For Paying Benefits?

Undocumented workers in Virginia are entitled to workers’ compensation benefits but not to the same extent as workers who are legally eligible to work in the United States. This concept is commonly misunderstood by workers, employers and workers’ compensation insurers alike. Before analyzing the legal landscape as it pertains to undocumented workers and their eligibility to receive benefits, it is important to understand the underlying ...
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Virginia Workers Compensation & Personal Injury Lawsuits Against Subcontractors

Virginia Workers Compensation & Personal Injury Lawsuits Against Subcontractors

The Virginia Workers Compensation Act prohibits employees from suing their employers for injuries incurred in the ordinary scope of employment. The Act provides an exclusive avenue of recourse for injured employees to recover against their employers. Section 65.2-307 of the Act provides that: The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively ...
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Construction Worker

Your Responsibility for Worker’s Compensation May Extend Further Than You Think

Workers’ compensation obligations may extend to cover individuals beyond those you consider to be your traditional employees. While this article considers such obligations under the Virginia Workers’ Compensation Act (VWCA), the consideration may be applicable in other states as well. Consult with an attorney licensed in your state to discuss the issue. One of the aims of the VWCA is to prevent employers from avoiding ...
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Laptop, Computer, Desktop

OSHA DEADLINE FOR ELECTRONIC REPORTING OF INJURIES AND ILLNESSES APPROACHING

Last year, the Occupation Safety and Health Administration, (OSHA), issued a rule that requires certain employers to electronically submit on-the-job injury and illness information. In keeping with its responsibility to improve safety for workers, the change seeks to focus more attention on safety through transparency in reporting practices and to ensure that workers will not fear retaliation for reporting injuries or illnesses. The new rule ...
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598521948-500x233

Two Significant Policy Changes by the Trump Administration’s Department of Labor

As we all expected, President Trump has made his mark on numerous federal policies. On June 7, 2017, the U.S. Department of Labor (“DOL”), now under the leadership of Secretary Alexander Acosta, announced that it had withdrawn two of the past administration’s interpretive bulletins, 2015-1 and 2016-1. Both bulletins had been issued by President Obama’s DOL as guidance, rather than as federal rules, but set ...
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Businessman Giving Cheque To Other Person

Fourth Circuit Articulates Test for Joint Employment under the FLSA

Businesses frequently overlook the risk of liability under the Fair Labor Standards Act (“FLSA”) because they do not consider potential overtime and minimum wage claims by non-employees. A common tactic in FLSA litigation is for the plaintiffs to sue not only the business that employed them, but also related businesses or businesses that they worked for indirectly, alleging that the businesses are “joint employers.” The ...
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New Case Law - Violation of Medical Restrictions

New Case Law – Violation of Medical Restrictions

The Court of Appeals recently considered whether a claimant’s alleged violation of pre-existing medical restrictions could warrant a denial of workers’ compensation benefits.  In Staton v. The Bros. Signal Co., 66 Va. App. 185, 783 S.E.2d 539 (2016), the claimant suffered from pre-existing knee problems and his physician had instructed him to avoid walking on unlevel terrain, as he would be at a risk of ...
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EMPLOYERS BEWARE: Unpaid Officers and Directors may count as employees under the Virginia Workers’ Compensation Act

EMPLOYERS BEWARE: Unpaid Officers and Directors may count as employees under the Virginia Workers’ Compensation Act

The Virginia Workers’ Compensation Commission (the “Commission”) has consistently held that the members of a board of directors of a corporation are counted as employees under the Virginia Workers’ Compensation Act (the “Act”) whether they are salaried or not.1 The treatment of unpaid directors as employees is important to note because the Act generally applies to employers with three or more employees regularly in service ...
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Who do you think is a Longshoreman?

Who do you think is a Longshoreman?

THE SEARCH BEGINS: THE IMPACT OF PRIOR LEGISLATION, LEGAL DECISIONS AND DOL INTERPRETATIONS OF THE ACT The Impact of Prior Legislation, Legal Decisions and DOL Interpretations of the Longshore and Harbor Workers’ Compensation Act Presented by F. Nash Bilisoly of Vandeventer Black, LLP Personal injury recovery in maritime law is inseparably linked to the status of the plaintiff and the defendant--the relationship between the injured party ...
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Fee Schedule Update

Fee Schedule Update

On March 7, 2016, Governor Terry McAuliffe signed legislation to establish a workers' compensation fee schedule in Virginia.  Virginia joins 45 other states in adopting a workers' compensation fee schedule.  The fee schedule will go into effect on January 1, 2018, and will replace the current system of reimbursing medical providers at "usual and customary" rates.  It will set maximum amounts that providers may charge ...
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Important changes to FLSA Exempt Status and Overtime Regulations

Important changes to FLSA Exempt Status and Overtime Regulations

LEGAL ALERT - Going into Effect on December 1, 2016 The U.S. Department of Labor (DOL) has issued regulations updating the Fair Labor Standards Act (FLSA). The final regulations were issued on May 17, 2016, and will go into effect on December 1, 2016. Under the new regulations, any employee who is paid less than $47,476 per year will be entitled to overtime pay. This ...
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The Application of the Amorphous "Death Presumption" in Virginia Workers' Compensation

The Application of the Amorphous “Death Presumption” in Virginia Workers’ Compensation

Authored by Brett M. Saunders and Brian L. Sykes Many practitioners in the field of workers’ compensation are aware of the “death presumption.” The rule is often understood as this: when an employee is found dead at his place of work, there is a presumption that a compensable injury has occurred. However, this is not the case. Although such a presumption does exist, it is severely limited in scope and ...
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EDI Compliance Penalty Information

EDI Compliance Penalty Information

Authored by Megan B. Caramore EDI transactions are required reports under Virginia Code Section 65.2-902.  The Commission’s EDI Compliance Initiative (now in its seventh year) is preparing to issue penalties for failure to file such reports.  Requests that will result in a penalty include, but are not limited to: Failure to file initial FROI. Failure to file initial SROI reporting payment previously ordered. Failure to file ...
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Will Virginia Adopt a Medical Fee Schedule?

Will Virginia Adopt a Medical Fee Schedule?

Authored by Megan B. Caramore The Commission and Legislature appear to be exploring the possibility of a medical fee schedule for the Commonwealth’s workers’ compensation system.  Virginia currently has no fee schedule and relies on the usual and customary rates of providers in various geographical areas.  Under Virginia law, it is difficult to prove that a providers rates are unreasonable or exceed the usual and customary ...
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New Case Law on Wage Loss Benefits After Retirement

New Case Law on Wage Loss Benefits After Retirement

Authored by Megan B. Caramore What happens when an employee announces his retirement but is injured shortly before his effective retirement date? Is he still entitled to wage loss benefits?  The Supreme Court of Virginia recently ruled on this issue and determined that the Claimant is still entitled to temporary total wage loss benefits, but not temporary partial benefits, in such a case.  In the October ...
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New OSHA Reporting Requirements Effective January 1, 2015

New OSHA Reporting Requirements Effective January 1, 2015

Authored by attorney Megan Caramore On September 11, 2014, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced a final rule with respect to new reporting requirements for fatalities and severe injuries.  Previously, the rule required only that employers report fatalities or hospitalizations of three or more workers.  The new rule, which takes effect on January 1, 2015, requires that employers report any ...
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