Written by Claire Cafritz Carr, Esq.
Edited by Rachel A. Riordan, Esq.
A new workers’ compensation law recently passed in Virginia will go into effect on July 1st and will impact employers and carriers at the outset of a work related accident.
The new law is §65.2-601.2 and it provides that once an employee files a claim for benefits under §65.2-601 (addressing the time limit for filing a claim) the Commission shall issue an order to the employer to advise the employee within 30 days whether the claim will be accepted or denied and the reasons for any denial.
If a decision can’t be made due to a lack of information, the specific information required to make a decision must be provided. The notice to the employee can be sent to the employee by email if he or she consents. Here is the link to the statute: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP1086+pdf
§ 65.2-601.2. Notice to employee of employer’s intent.
A. Whenever an employee makes a claim pursuant to § 65.2-601, the Commission shall order the employer to advise the employee, within 30 days following the date of such order, whether the employer (i) intends to accept the claim, (ii) intends to deny the claim, or (iii) is unable to determine whether it intends to accept or deny the claim because the employer lacks sufficient information from the employee or a third party to make such determination. If the employer responds that it intends to deny the claim, the response shall provide reasons therefor. If the employer responds that it is unable to determine whether it intends to accept or deny the claim because it lacks sufficient information from the employee or a third party to make such determination, the response shall identify the additional information that the employer needs from the employee or a third party in order to make such determination.
B. The employer’s response to the order shall be considered a required report for the purposes of § 65.2-902.
C. The employer’s response to the order shall not be considered part of the hearing record.
D. employer may, if the employee consents, send any response required by this section to the
employee by email.
Because the initiating event for issuance of the new 30 Day Order is “the employee making a claim pursuant to § 65.2-601,” it is presumed that the employee must first file his or her claim with the Commission before the 30 Day Order will be issued. Simply providing notice to the employer of the work injury or intent to make a claim for benefits does not appear to trigger the issuance of the 30 Day Order by the Commission.
Additionally, the language of the statute specifically states that the Commission shall order the employer to provide the response to the employee and that the employer shall inform the employee of the decision regarding its claim. The statute is silent on whether the Commission will be sending the carrier a copy of the 30 Day Order issued to the employer, or whether the carrier or TPA may even respond on the Employer’s behalf. The statute does state that the notice to the employee is a report required under § 65.2-902. That section states that any employer, insurance carrier, self-insurer, group self-insurance association, or TPA which fails to make any required report can be fined between $500 to $5,000. We assume, therefore, that a carrier or TPA can also be held responsible for the employer’s failure to respond to the 30 Day Order and that they can also respond on behalf of the employer.
Our recommendation is that carriers and TPAs alert their insured employers of this new law and advise them to be on the lookout for a 30 Day Order after July 1st and forward them to the carrier/TPA to coordinate a response. Inasmuch as the presumed intent of the legislation is to keep the employee informed of how his claim is being handled, we expect that so long as the intent of the law is fulfilled it will be sufficient for the notice to come from an entity acting on the employer’s behalf such as the carrier, TPA or defense counsel.
This new 30 Day Order will not take the place of the 20 Day Order. The employer’s response under the new law goes directly to the employee, while the response to the 20 Day Order goes to the Commission as well. The response to the 20 Day Order alerts the Claims Department of the Commission whether the claim should be routed to the hearing docket or to the Awards Department in anticipation of agreement forms being submitted. When a claim is being denied, the employer/carrier’s response to the 20 Day Order does not bind the employer to the specific reasons for denial identified on the Response Form. They are permitted to raise additional defenses or drop the reason initially included on the 20 Day Order response form. We expect the same policy will apply to this new notice to the employee mandated by the 30 Day Order.
If you have any questions pertaining to this new legislation, please feel free to call our Workers’ Compensation Practice Group at (804) 320-6300 or email our department head, Claire Cafritz Carr, at Claire.Carr@kpmlaw.com.