by KPMLAW | Nov 14, 2022 | Uncategorized
Written by Randy Lenhart, Esq. Edited by Bill Pfund, Esq. There are two important reasons for asking if a plaintiff has filed her bankruptcy in discovery. The first reason is to try and challenge the admissibility of the plaintiff’s medical bills. In Virginia, a plaintiff is allowed to claim all of their gross medical bills incurred as a result of an accident even if the bills were paid by a health insurance company or other source. This is known as the collateral source rule. However, some Virginia courts and federal courts have determined that a plaintiff cannot recover for the amount of her medical bills that have been discharged in bankruptcy. As a result, this bankruptcy issue can function as a limited exception to the collateral source rule. The other important reason is standing. In Ricketts v. Strange, et al., 796 S.E.2d 182, 2017 Va. LEXIS 5 (February 16, 2017), the plaintiff filed a personal injury lawsuit shortly before the two year statute of limitations expired on her claim against the defendant. After the defendant learned that the plaintiff had filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Western District of Virginia, he filed a motion for summary judgment and argued that the plaintiff lacked standing to file her complaint. Instead, the defendant asserted that the plaintiff’s personal injury claim should have been brought by the bankruptcy trustee because the personal injury claim had not been properly exempted from the bankruptcy estate. In granting the defendant’s motion for summary judgment, the circuit court determined that because the plaintiff “failed to disclose [her claim...
by KPMLAW | Nov 2, 2022 | Uncategorized
Written by Franice B. Georges, Esq. Edited by Bob McAdam, Esq. The recorded statement can be an extremely important tool in defending a workers’ compensation claim. It is an opportunity for the claims handler to speak with the injured worker close in time to the work accident, when memories are the freshest and before outside influences can affect the worker’s version of the accident. You should think of this as an opportunity to thoroughly investigate compensability and to lock in the injured worker’s version of the accident and claims of injury. But, it can also be used to gather important collateral information including the injured worker’s health history, claims history, employment history, identification of witnesses, and subrogation possibilities. Taking an effective recorded statement involves preparation, strategy and listening skills. Based on the information you gather from the employer during your initial investigation about the type of accident and injury, take a moment and think about the types of questions you will want to ask. In addition to the standard questions including contact information for the injured worker and the facts of the accident and injury, consider other things that are a little outside the box that could lead to some helpful information. For example, are there other plausible explanations for the injury outside of the work environment, like hobbies, sports activities, motor vehicle accidents, or pre-existing medical conditions? If the injured worker identifies other potential explanations for the injury, you now have additional avenues to investigate. If the injured worker does not identify potential explanations for the injury and it turns out later that in fact, there are other...
by KPMLAW | Aug 30, 2022 | KPMBlog, News, Uncategorized
Written by Chris Wilson, Esq. Edited by Bob McAdam, Esq. Two recent decisions from the Court of Appeals of Virginia and the Virginia Workers’ Compensation Commission create uncertainty regarding when employers and carriers can be sure that there will be no further litigation in settled workers’ compensation claims. The case decided by the Full Commission, Greatheart Jr. v. City of Hampton, JCN VA00001102641 (Apr. 12, 2022) involved an application by the claimant seeking to compel the employer and carrier to pay the balance of bills for medical services the claimant received on October 29, 2015. The claimant’s workers’ compensation claim settled full and final on November 1, 2019. The defendants argued that the settlement Order extinguished the claimant’s right to seek payment of unpaid medical balances, and that the claimant therefore lacked standing to pursue his claim. As is common in accepted workers’ compensation claims, the employer and carrier agreed as part of the settlement to pay for all reasonable, necessary, and causally related medical treatment rendered from the date of the accident through the date the settlement Order was entered by the Commission. The Order, however, also included language stating that the settlement “shall be and hereby is a complete extinguishment of all claims of any nature whatsoever of the claimant . . . that are now due or that hereafter may become due . . . including, but not limited to, claims for . . . medical benefits . . . .” Documentation submitted by the claimant indicated the carrier had partially paid the bill in question in 2016, leaving a balance of roughly $8,000. The bill...
by KPM LAW | Jul 18, 2022 | KPMBlog, News, Uncategorized
Below is an examination of the significant changes to the Virginia Workers’ Compensation Act, effective July 1, 2022. 1. Amendment to Virginia Code §65.2-603 Employer duty to furnish medical attention; cost limit. Adds scooters to the list of medical equipment an employer is required to furnish to an employee under certain circumstances under the Virginia Workers’ Compensation Act. The bill raises the limit on the aggregate cost of items and modifications required to be furnished by an employer to an injured employee from $42,000 to $55,000, to be increased on an annual basis. KPM Note: The most significant part of this amendment is increasing the aggregate cost of items and modifications to $55,000, with an annual increase, using the formula to compute the COLA. In the past, there was a hard limit on the modifications. One interpretation of the amendment is that a claimant may be able to revisit her entitlement to modifications on an annual basis. Another interpretation is that the date of the accident determines the total amount a claimant may receive in these benefits. For example, in the accident occurs on July 2, 2022 the total amount is $55,000 for these benefits. If the accident occurs on July 2, 2023, the total amount is the updated figure. We anticipate that there will be litigation about whether claimants may receive the updated benefits each year or if the limit that pertains to their case is the benefits in effect at the time of the accident. 2. Amendment to Virginia Code §65.2-402.1 COVID-19; health care providers. Extends from December 31, 2021, to December 31, 2022, the date...
by KPM LAW | Jun 30, 2022 | Uncategorized
An estimated 2.7 million Virginians reside in a rentedresidence.That means thatone in every three households are rentals.In Virginia’s larger citiesthe percentage of rental households is much higher. For example, in both Alexandria and Richmond, around 60% of the cities’ households rent their residence.1With such a large number of rental residences, questions of liability for personal injuries caused by the condition of the rental premises often arise. In most instances, the Virginia Residential Landlord Tenant Act (hereafter “the VRLTA”)(Va. Code Ann. § 55.1-1200, et. al.)governs the relationship between a landlord and a tenant. For example, the VRLTA restrictscertain lease terms, requires the landlord provide certain essential services, and governs the eviction process. Despite the seeminglycomprehensive nature of the VRLTA, one situationthe VRLTAdoes not controlis when a tenant is injured as the result ofthe leased premises’ condition.That situation is governedby the common lawestablished overdecades of Supreme Court precedent.See Isbell v. Commercial Inv. Assoc., 273 Va. 605, 644 S.E.2d 72 (2007) andStewart v. Holland Family Properties, 284 Va. 282, 726 S.E.2d 251 (2012). For decades, Virginia Courts have held that “The tenant take the [rental] premises as they are, and his invitees take the risks of the situation.”Caudillv. Gibson Fuel Co.,185 Va. 233,240, 38 S.E.2d 465, 469(1946). Stated another way, “a landlord has no duty of care to maintain or repair leased premises when the right of possession and enjoyment has passed to the lessee. The duty resides with the lessee under these circumstances and no action in tort can be sustained against the landlord for personal injuries resulting from the failure to maintain or repair the leased property.” Stewart v. Holland...
by KPM LAW | Jun 12, 2022 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Brian A. Cafritz, Esq.Virginia has long had a defense-friendly one-year statute of limitations for defamation claims. Under Virginia Code § 8.01-230, the accrual of right of action occurs when injury is sustained. In the context of a defamation action, the cause of action accrues and the statute of limitations begins to run when the injury to reputation is sustained by publication. Va. Code § 8.01-230; see, Weaver v. Beneficial Finance Co., 199 Va. 196, 200-01, 98 S.E.2d 687 (1957).Over the last hundred years, it has been relatively easy to calculate the accrual date for the defamatory acts. If one made a statement or drafted a written letter, the date of publication of the statement or letter became the accrual date. For example, if a photocopy of the same letter was copied and mailed to different recipients on different dates, the law considers each mailing of the same letter to be a new publication that creates a separate cause of action with the statement being heard on different dates in different locations and causing different damages. As a result, based on the date of publication, each mailing of the photocopied letter has its own accrual date for the purposes of the statute of limitations. See Bradford J. Brady v. Stefanie Marshall and M3-Marshall Contracting & Masonry, Inc., (Cir. Ct. Albemarle County, Case No. CL19-1701, J. Higgins, 2021).However, in today’s society, communications through letters is becoming less common. Written letters had been replaced by emails and texts. But today’s technology has changed that as well. The introduction of social media platforms, pod casts, and multimedia communications complicated that calculus...
