Written by Nick Marrone, Esq. Edited by Bob McAdam, Esq. If you have been handling Virginia workers’ compensation claims it is likely that a claimant or their attorney has asked you to approve an FCE or an impairment rating ordered by their doctor. It is likely that such a request has resulted in a quick denial. Obtaining an FCE or an impairment rating is a litigation expense. The Commission has found that a visit to a physician for the sole purpose of proving a disability rating does not constitute medical treatment under Virginia Code § 65.2-603; and, therefore, the Insurer is not responsible. This longstanding precedent, however, appears to be over. On October 5, 2021, the Full Commission issued their Review Opinion in Kenneth Elliott v. Sam Green Vault Corporation, JCN VA00001108316 (Oct. 5, 2021). Mr. Elliott was a grave digger. On August 16, 2015, he suffered a tibia fracture when a tombstone toppled over and fell on his left leg. After going through three surgeries on May 11, 2020 his treating doctor opined that he had reached maximum medical improvement. Mr. Elliott was referred to a physical therapy facility for an FCE and impairment rating to proceed. The insurer refused to authorize the same and following a hearing the Deputy Commissioner, following precedent, agreed. The claim was denied on the basis that the referral for the FCE and impairment rating was for the sole basis of securing a disability rating and is not medical treatment for which the insurer was responsible. Mr. Elliott appealed the ruling arguing the referral was not solely to obtain a disability rating but...
Written by Randall C. Lenhart, Jr. Edited by Bill Pfund A statute of repose, like a statute of limitations, extinguishes certain legal rights if they are not brought within a specified deadline. The difference is that a statute of limitations generally begins to run when a plaintiff’s cause of action accrues while a statute of repose commences to run from the occurrence of an event that is unrelated to the accrual of a cause of action. Virginia’s statute of repose is found at Virginia Code § 8.01-250 and provides that: No action to recover for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of such injury, shall be brought against any person performing or furnishing the design, planning, surveying, supervision of construction, or construction of such improvement to real property more than five years after the performance or furnishing of such services and construction. The limitation prescribed in this section shall not apply to the manufacturer or supplier of any equipment or machinery or other articles installed in a structure upon real property, nor to any person in actual possession and in control of the improvement as owner, tenant or otherwise at the time the defective or unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought; rather each such action shall be brought within the time next after such injury occurs as provided in §§...
Written by Daniel Royce Edited by Bill Pfund Ask any layperson about Attorney-Client privilege and they could probably recite a general explanation about how things you tell your lawyer are secret… the legal equivalent of “What happens in Vegas stays in Vegas”. According to the Legal Information Institute at Cornell University Law School, Attorney-Client Privilege “refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret.” The privilege is asserted in the face of legal demand for communications, such as in a discovery request or a demand that counsel testify. The privilege only exists when there is an attorney-client relationship. The Attorney-Client privilege is a bedrock principle of American Jurisprudence and it is therefore critical to understand how the privilege attaches, and when Attorney-Client communications are not protected. The Attorney-Client privilege is one of the oldest recognized privileges for confidential communications. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The privilege is intended to encourage “full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.” Id. The Attorney-Client privilege is not absolute, and any competent attorney needs to understand its nuances. The widely accepted test for application of the privilege is discussed in United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950), and states the privilege applies: “[O]nly if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of...
Written by Jessica Gorman, Esq. Worst case scenario for every case is permanent and total disability. High exposure, lots of medical treatment, significant reserves. But a recent decision by the Supreme Court of Virginia may have helped the defense limit this exposure. In Virginia, for an injured worker to qualify for permanent and total disability benefits, they have to meet the standard and elements set forth in § 65.2-503(C). Section § 65.2-503(C)(1) permits an award of permanent total disability only if two disabling injuries occurred “in the same accident.” This would include the loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof in the same accident. Id. This statute also accounts for injuries resulting in total paralysis, or injuries to the brain which rendered the employee permanently unemployable. Id. The question recently raised and answered by the Supreme Court of Virginia, now effectively makes it a little harder for the injured worker to qualify, if you have the right circumstances. Many employees have made the argument that they have the loss of multiple body parts to qualify under the Act, when they injure one extremity/ body part in an initial accident but then have a secondary accident or compensable consequence impacting another extremity/body party. Whether you can consider adding extremities or injuries from a secondary accident to be considered the “same accident” was raised, defended and brought before the Supreme Court of Virginia in Merck & Co., Inc. v. Vincent, and was decided by an Opinion dated May 27, 2021. In this case, the employee was a pharmaceutical sales representative. While making...
Written by Jessica Relyea, Esq. Most people understand that any communication between an individual and their attorney is protected from disclosure in litigation under the attorney-client privilege. However, what if an attorney has a meeting with their client and the client’s spouse or boyfriend? What if the meeting includes the client’s friend who happens to be a witness to the accident? Can the other party in litigation discover the contents of that meeting and any documents reviewed during it? It depends. In both civil and criminal matters, a person may refuse to disclose or prevent anyone else from disclosing any confidential communication between themselves and their spouse. Va. Code Ann. § 8.01-398. This is known as the marital communication privilege. This privilege survives the dissolution of marriage, which means one spouse could prevent an ex-husband or ex-wife from voluntarily disclosing confidential information. Id. It does not extend to proceedings where the spouses are adverse to each other, or if one spouse is charged with a crime or tort for an act against (1) the other spouse, (2) property of the other spouse, or (3) a minor child of either spouse. Id. For the marital privilege to apply, it must involve a communication, which includes conduct, acts, signs, speech or writings, that conveys information to the other spouse. Virginia v. Shifflett, 52 Va. Cir. 326, 327 (2000). Furthermore, the communication must be private. Id. The marital communication privilege extends the reach of attorney-client privilege. “As a general rule, confidential communications between an attorney and his or her client made in the course of that relationship and concerning the subject matter...
Written by Nick Marrone, Esq. Edited by Bob McAdam, Esq. Jurisdictions differ as to who controls medical treatment in workers’ compensation claims. In Virginia, when an employee is injured in a compensable claim, the burden is on the Employer and Insurer to furnish a panel of three physicians from different facilities/or practice groups for the Claimant from which to choose. If two or more of the physicians are from the same facility or practice group, even if they practice out of different locations, the panel will be invalid. Unfortunately, as practices have consolidated across the Commonwealth creating valid panels have become more difficult. The panel must be provided to the Claimant in writing. Posting it in the break room or putting it into the employee’s handbook will not suffice. A panel will also be invalid if a doctor refuses to treat workers’ compensation patients. Employers and Insurers, therefore, should be sure to have proper panels drafted prior to any report of accident and they should be sure to regularly update them to avoid the issues noted above that can result in an invalid panel. Once selected that provider becomes the treating provider. If a panel is not properly offered to the Claimant, or if the claim is denied, the Claimant is permitted to see the doctor of their choice. It is best to avoid this outcome, of course, as Claimants’ attorneys will often send their clients to Claimant-friendly providers. However, even if a panel is not provided or if a claim is denied once the Claimant establishes a course of treatment – typically at least three visits – with...
Written by Kevin Kennedy, Esq. Edited by Bill Pfund, Esq. When a claimant is injured at a construction site, his attorney typically names the general contractor as the lead defendant in the case and the party responsible for the condition that gave rise to the injury. The general contractor’s first response is to quickly bring third party claims against multiple subcontractors who may have had involvement with whatever part of the construction project gave rise to the personal injury claim. Those third party claims usually consist of two main theories of recovery. The first theory is the standard negligence claim. For example, the framer responsible for securing cross beams negligently performed his work, thus causing the beam to fall and strike the pedestrian. However, the more powerful claim is often rooted in an indemnification clause that the subcontractor accepted as part of the contract when it agreed to perform a portion of the construction project for the general contractor. That clause may read something like “subcontractor agrees to indemnify and hold harmless general contractor for any and all claims arising out of [the construction project], caused by or resulting from the negligence of either the subcontractor or the general contractor.” The general contractor will assert in its third party claim that this indemnification clause requires the subcontractor to assume the defense of the case and pay for any judgments taken against the general contractor in the underlying suit. But is this contract valid under Virginia law, and does the subcontractor have to accept the general contractor’s tender? Many states have taken action to protect subcontractors with diminished bargaining...
Written by Robert Worst, Esq. Edited by Bill Pfund, Esq. Does anyone remember that Ethan Hawke, Uma Thurman, Jude Law futuristic movie from the 90’s “Gattaca”? In it, humans could purchase select genetic characteristics for children if they had enough money. The outcasts were the children born naturally without genetic enhancement. One particular threat in the movie was that insurance companies had begun basing insurance coverage and rates on a person’s level of genetic enhancement and would not insure natural, non-modified persons due to the perceived higher risk of illness, injury or death. The movie tapped into our collective fear over the loss of control of our private information and big business’s ability to use that information against us. One area of Virginia insurance and motor vehicle law codified that fear by protecting another form of personal information: the way we drive. The result is that potentially useful information recorded by the Airbag Control Module after an accident may be difficult or impossible to obtain. The Virginia General Assembly introduced House Bill 816 in 2006 amending Virginia’s insurance and motor vehicle laws to prohibit insurers from using data recorded by motor vehicles against the vehicle’s owner. Va. HB 816 added a new subsection “s” to Va. Code §38.2-2212. This statute already prohibited insurers from refusing to renew a motor vehicle insurance policy solely because of constitutionally protected status such as age, gender, and race. The new section “s”, however, also included “the refusal of a motor vehicle operator … to provide access to recorded data from a recording device” in the vehicle. A new section, Va. Code §38.2-2213.1, further...
Written by Nick Marrone, Esq Edited by Bob McAdam, Esq. Jurisdictions differ as to who controls medical treatment in workers’ compensation claims. In Virginia, when an employee is injured in a compensable claim, the burden is on the Employer and Insurer to furnish a panel of three physicians from different facilities/or practice groups for the Claimant from which to choose. If two or more of the physicians are from the same facility or practice group, even if they practice out of different locations, the panel will be invalid. Unfortunately, as practices have consolidated across the Commonwealth creating valid panels have become more difficult. The panel must be provided to the Claimant in writing. Posting it in the bcareak room or putting it into the employee’s handbook will not suffice. A panel will also be invalid if a doctor refuses to treat workers’ compensation patients. Employers and Insurers, therefore, should be sure to have proper panels drafted prior to any report of accident and they should be sure to regularly update them to avoid the issues noted above that can result in an invalid panel. Once selected that provider becomes the treating provider. If a panel is not properly offered to the Claimant, or if the claim is denied, the Claimant is permitted to see the doctor of their choice. It is best to avoid this outcome, of course, as Claimants’ attorneys will often send their clients to Claimant-friendly providers. However, even if a panel is not provided or if a claim is denied once the Claimant establishes a course of treatment – typically at least three visits – with...
Recognizing Inclusion for the Next Generation (RING) is a certification program that evaluates an organization’s commitment to embracing and expanding Diversity, Equity, and Inclusion initiatives. Established in 1990 and operating four mid-Atlantic offices, KPMLAW recognizes that diversity in both the workforce and in firm leadership is essential for maximizing business effectiveness and potential. KPM upholds the belief that promoting and expanding a commitment to diversity and inclusion will assist KPM LAW in its relentless pursuit of excellence and service to its clients. Learn more about RING Certification: www.ringcertification.org....
