by KPMLAW | Nov 14, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Francie Belton Georges, Esq. In workers’ compensation cases, a file can remain open for years following an evidentiary hearing. In cases where the Commission enters an Award granting the employee wage-loss benefits for an indefinite period of time (referred to as an “open award”), the employee has the right to receive those wage-loss benefits for as long as the award remains outstanding or “open.” The employer and/or insurer bear the burden of filing an application with the Virginia Workers’ Compensation Commission to terminate the open award. So, how do you stop the bleeding? There are only two ways to terminate an open award: Termination by Agreement or Termination without Agreement. Termination by Agreement The easiest way to terminate the open award is by agreement. If you are lucky enough to have the employee agree that the open award should be concluded and if the employee is willing to sign a Termination of Wage Loss Award (“TWLA”), then the award can be terminated quickly and easily. Note, however, that a TWLA can be filed only when: (a) the employee has actually returned to work at a wage equal to or greater than the pre-injury average weekly wage, or (b) the employee was capable of returning to his pre-injury work (i.e., he was released to return to pre-injury work by the doctor. It does not matter if he actually does return to work. The release by the doctor is the key). In addition to the filing of the TWLA form, the employer/insurer will have to produce documentary proof of the employee’s release to return to pre-injury work. Without documentary...
by KPMLAW | Sep 12, 2016 | KPMBlog, News, Uncategorized
Written by Claire Carr, Esq. Recently, the Virginia Court of Appeals ruled that activity taking place over 30-45 minutes constituted an identifiable incident occurring at a reasonably definite time. To prove an “injury by accident” under the Virginia Workers’ Compensation Act, a claimant must show (1) an identifiable incident; (2) that occurs at some reasonably definite time; (3) an obvious sudden mechanical or structural change in the body; and (4) a causal connection between the incident and the bodily change.” Hoffman v. Carter, 50 Va. App. 199, 212, 648 S.E.2d 318, 325 (2007). The Court of Appeals addressed this definition in Van Buren v. August County, Record No. 1975-15-3 (July 19, 2016). Robert Van Buren was a firefighter who responded to a call to aid a 400 lb. man who fell in the shower and broke his leg. Van Buren and another rescue worker used a sheet to make a sling and lifted the man out of the shower, lowered him to the floor, then onto a flat stretcher. They dragged the stretcher down the hall, hoisted him up onto a wheeled stretcher, pushed it down a hill and finally lifted the stretcher up into an ambulance. The events lasted 30-45 minutes. At no point during the actual events did the claimant feel any pain. He first noticed pain in his arm after he closed the ambulance doors. He suggested the delay was due to the adrenaline rush during the rescue. Four days later he reported pain in his shoulder, citing a 2 week history of pain which had become worse after lifting patients all day at work. He...
by KPMLAW | Aug 15, 2016 | KPMBlog, News, Uncategorized, Updates
Whether an assault upon an employee is compensable depends on a variety of factors. The initial inquiry to be made is whether it falls under the definition of a compensable injury by accident. To be compensable, an injury by accident must arise out of and in the course of employment. Va. Code § 65.2-101; County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). The claimant bears the burden of proving his injury arose out of his employment. Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993). The phrase “arising out of” refers to the origin or cause of the injury. Johnson, 237 Va. at 183, 376 S.E.2d at 74; Marion Correctional Ctr. v. Henderson, 20 Va. App. 477, 479, 458 S.E.2d 301, 303 (1995). An injury arises out of the employment where there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and resulting injury. Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). In Virginia, the “actual risk” test is used to determine whether an injury arises out of the employment. Hill City Trucking, Inc. v. Christian, 238 Va. 735, 739, 385 S.E.2d 377, 379 (1989)( holding that a truck driver’s injuries sustained during a robbery did not arise out of his employment as an over-the-road truck driver where there was no evidence establishing a nexus between the criminal act and his employment.) “An accident arises out of the employment if a causal connection is established...
by KPMLAW | May 24, 2016 | KPMBlog, News, Uncategorized
Idiopathic and unexplained accident cases are on the rise as more employees are taking medications for a myriad of health issues. An idiopathic accident is one where the injury is caused by a preexisting personal disease of the employee (diabetes, seizures, etc.) and can be compensable if the employment increases the dangerous effects of the condition. Typically, compensable idiopathic injuries are found in motor vehicle accident and fall from ladder cases. Unexplained injuries are not compensable because the claimant cannot prove that the injury arose out of the employment. In an unpublished decision, Burney-Vivens v Community Corrections Administration, the Court of Appeals addressed the idiopathic v. unexplained injury issue. In Burney-Vivens the claimant had a history of migraines. She had also sustained a compensable back injury in 2012 for which she was still taking medication. She was driving an employer provided car while on assignment for her employer. Because she was driving she did not take her back pain medication that day. She was involved in a single car accident in which her car left the road and went down an embankment. She testified that at a certain point in time on the trip, after driving past a sign for the Town of Boones Mill her vision diminished and started blurring. The next thing she remembered was crawling out of the car. She did not remember what caused her to run off the road. At the hearing, the claimant alleged that her accident was caused by an idiopathic condition of blurred vision due to her pre-existing migraine headaches. In the alternative, she alleged that she blacked out because of...
by KPMLAW | Apr 25, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Chris Wilson, Esq. Edited by Rachel Riordan, Esq. A recent unpublished opinion by the Virginia Court of Appeals provides important guidance on what a claimant must show to prove that an injury “arose out of” his or her employment. In United Airlines, Inc. v. Taylor, No. 1169-15-4, 2016 Va. App. LEXIS 72 (Va. Ct. App. March 15, 2016), the claimant’s work accident was found non-compensable despite the fact that he lost his balance and fell down several stairs while carrying items totaling around 35 pounds. This case should serve as a reminder that the claimant must show not only that he was injured at work, but that “a condition of the workplace either caused or contributed” to the injury. See Southside Virginia Training Ctr./Commonwealth of Virginia v. Shell, 20 Va. App. 199, 202, 455 S.E. 2d 761, 763 (1995). In other words, the fact that the claimant is carrying something at the time of his injury does not necessarily mean the accident is compensable. In Taylor, the claimant was employed as a ramp agent for United Airlines. His job duties included unloading baggage and other cargo from aircraft. On the day of the accident he was walking up a set of metal stairs while holding two strollers under his arms. Taylor estimated the stroller in his right hand weighed approximately thirty pounds, while the stroller in his left hand weighed about five pounds. As he was walking up the stairs his right knee “popped,” causing him to fall down the stairs and onto his back. His knee then popped back into place. Taylor admitted that the stairs...
