Updates to the Virginia Workers’ Compensation Act, effective July 1, 2022

Updates to the Virginia Workers’ Compensation Act, effective July 1, 2022

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 which COVID-19 causing the death or disability of a health care provider is presumed to be an occupational disease compensable under the Virginia Workers’ Compensation Act.

KPM Note: If your company insures health care providers this is an important amendment. The most intriguing question that arises out of this amendment is whether the presumption will be extended again next year.

 

3. Amendment to Virginia Code §65.2-406
Time period for filing claim; certain cancers. Provides that the time period for filing a workers’ compensation claim for certain cancers[1] is two years after a diagnosis of the disease is first communicated to the employee or within 10 years from the date of the last injurious exposure in employment, whichever first occurs. The bill provides, however, that such claim for benefits shall be barred if an employee is 65 years of age or older, regardless of the date of diagnosis, communication, or last injurious exposure in employment.

KPM Note: Any time you are dealing with a cancer claim, the exposure is potentially catastrophic. It is suggested that you contact a member of our team to discuss any cancer claim.

 

4. Amendment to Virginia Code §65.2-503
Permanent and total incapacity; subsequent accident. Requires compensation for permanent and total incapacity to be awarded for the loss of both hands, both arms, both feet, both legs, both eyes, and any two thereof either from the same accident or a compensable consequence of an injury sustained in the original accident. Under current law, compensation for permanent and total incapacity is required only when such loss occurs in the same accident.

KPM Note: This amendment statutorily overrules the Supreme Court decision of Merck & Co., Inc. v. Vincent, 299 Va. 705, 858 S.E. 2d 190 (2021).

 

5. Amendment to Virginia Code §65.2-709
Cost of living supplements. Provides that cost-of-living supplements shall be payable to claimants who are receiving disability benefits under the Virginia Workers’ Compensation Act but are not receiving federal disability benefits.

KPM Note: The amendment thus changes existing law to permit a claimant who is not receiving Social Security Disability payments to receive COLA even when her weekly compensation payments under the Act are already 80 percent or more of her pre-injury average weekly wage.

Written by Bob McAdam, Esq.

For a more complete analysis of this amendment, please see our May 2022 newsletter. Chris Wilson did an excellent job summarizing this amendment.

If you have any questions regarding the changes to the Act, please feel free to contact any member of our team. As always, we are ready to assist you.

[1] A list of those cancers is contained in Virginia Code §65.2-402.

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