Surveillance Can Be Dangerous - and Not Just to Your Claim

As I sat down to draft my blog this week, the most obvious thing that came to mind was a Thanksgiving/Workers' Comp connection. I suspect there are some really interesting "Thanksgiving" cases out there. I can imagine an amusing story about a back strain from lifiting a turkey, or even a claim for psychological trauma as a result of having to choose between nuts and brown sugar or marshmallows for the sweet potatoes. I once had a case where a kitchen worker cut her finger opening a can of green beans. But, what I came across is a story, more of a cautionary tale, about the dangers of assigning surveillance.

The story goes - William Wehnke, 51, was walking on his property, with a loaded shotgun, when, he said, he spotted a "turkey" in a nearby cornfield. He took aim and fired, hitting Matthew Brady in the side of his body, his back and legs. Brady, yes, you guessed it, was not a turkey at all. Rather, he was an investigator hired to investigate Wehnke for workers' compensation fraud. The investigator was apparently wearing dark colored and camouflaged clothing and lying on the ground at the time of the shooting.  

Wehnke was indicted for felony second-degree assault and unlawful manner of taking - a violation that claims he used an inappropriate type of ammunition for hunting turkey - no mention was made in the indictment about whether the ammunition was appropriate for hunting workers' compensation investigators. 

Typically the most dangerous aspect of assigning surveillance is the risk of incurring the expense without actually obtaining any helpful footage. But, as this story illustrates, bodily harm may ensue. I suspect also that the injured investigator not only has a viable workers' compensation claim against his employer, but also a third party suit against the shooter, and potentially the insurance company that retained his services. 

The workers' compensation attorneys at Vandeventer Black wish you all a very happy Thanksgiving. Enjoy good food, friends and family - and football!  

Fourth Circuit Confirms that Even ALJs are Bound by the U.S. Supreme Court

Workers' compensation claims filed pursuant to the Longshore & Harbor Workers' Compensation Act are formally adjudicated by the Office of Administrative Law Judges (ALJ) ALJs are not Article III judges under the judicial branch of the government; rather, they are considered to be part of the executive branch. While it is often true that many procedural rules and rules of evidence are relaxed, Article I judges, and in particular ALJs, do not have the ability or authority to circumvent precedent established by higher Article III courts, including federal circuit courts and the U.S. Supreme Court.

The ALJs got a gentle reminder of this in a recent opinion decided, and published, by the Fourth Circuit. The Fourth Circuit Court of Appeals reversed a decision of the ALJ by finding that BRB committed a clear error of law when it affirmed the ALJ's decision and order. The Fourth Circuit admonished the ALJ for relying on its own precedent rather than the controlling law set forth by the Supreme Court. In particular, the Fourth Circuit determined that the claimant failed to meet his burden of proof; his claim for binaural hearing loss benefits was denied. For more about the facts and actual holding of this case, follow this link. Suffice it to say that the Fourth Circuit found the ALJ erred in relying on the decisions of other ALJs in contravention of a previous holding of the Supreme Court.

This case is important beyond any particular hearing loss case. Because of the rather informal nature of the adjudication of claims by Article I judges, from time to time, ALJs drift off course from the establishment of stare decisis, which is the backbone of the legal system. The U.S. Supreme Court is binding precedent on all courts, even Article I administrative law judges. Sometimes they just need a gentle reminder, which was provided quite effectively by the Fourth Circuit this time around.

VWCC EDI Upates

The Virginia Workers’ Compensation Commission has updated several documents related to its EDI program. To view these changes, visit the VWCC website where you will find the Commission's Final Implementation Guide and IG Post Publication Change Log.

Physician Panels - To Provide or Not to Provide - That is the Question

After receiving notice of an accident or occupational disease from an employee, employers are required to provide the employee with a panel of physicians from which to select a treating physician.  If the employer does not provide a panel, the employee may elect to receive treatment from any healthcare provider he or she chooses.   

What constitutes a “proper panel” of physicians?  The Virginia Workers’ Compensation Commission uses a “reasonable” standard in determining the validity of a physician panel.  “Reasonable” depends on many factors, such as the nature and severity of the injury and availability of physicians in a given area, and often include the following.   

1. The panel must be provided within a reasonable time after being notified of the injury. 
2. The panel must consist of at three (3) physicians, who are not affiliated with each other.
3. Physicians must be listed by name. Merely listing clinics may not be sufficient.
4. A panel is not valid if a physician is unwilling to see new patients or to treat workers’ compensation patients. 
5. The distance from the injured workers’ residence to the panel physician must be reasonable; a panel may be invalid if a physician is 50 miles or more away from the injured workers’ residence. 
6. The panelmust be provided directly to the injured worker following notice of the injury or claim. 
7. Posting a notice or advising employees of a “stock” panel is not a sufficient means of providing an injured worker with an appropriate panel.  

What is the result of a defective panel?  The Virginia Workers’ Compensation Commission has determined that the injured worker may select his own physician when presented with a defective panel.  The employer, or its insurance carrier, then becomes liable for all care provided by that chosen physician, as well as any referrals for treatment causally related to the work injury.  

This is important because, although employers and carrier cannot medically manage a workers’ compensation claim, it is often the job of the insurance adjuster or designated employer representative to maintain contact with medical care providers in an effort to return the injured worker to work.  Facilitating the progression of a workers’ compensation claim by ensuring that a case is medically managed appropriately can save the employer enormous amounts of time and money.  Keeping the lines of communication with health care providers open is therefore imperative, and often easier to accomplish if the treating physician is one that was selected by the employer or carrier.  

Accordingly, when a worker is injured or otherwise files a claim for an injury at work, immediately provide medical care as appropriate, whether that consists of emergency treatment or offering an appropriate physician panel.  This is a solid practice to follow, even if the claim is going to be denied.   

Longshore and Harbor Workers' Compensation Act: What Is It - and Do I Need Insurance Coverage for It?

As an employer in Virginia, you no doubt carry state workers’ compensation insurance coverage in the event one of your employees is injured while working within the course and scope of his or her employment.  But did you know that you could also be subject to the Longshore and Harbor Workers’ Compensation Act (“LHWCA”)?  There is concurrent jurisdiction in Virginia; thus, an eligible employee may be able to recover benefits under both the state and federal laws.  

LHWCA is a federal act designed to provide compensation and medical care to employees disabled from injuries that occur on the navigable waters of the United States, and certain areas adjoining the water customarily used for loading, unloading, repairing, or building vessels.  In addition to longshore and other maritime workers, the LHWCA covers a variety of other employees through several extensions to the law.  For example, employees of U.S. contractors outside the continental U.S., Alaska and Hawaii are covered, as are civilian employees of post exchanges, service clubs, etc. of the Armed Forces, and employees of private industry conducting certain operations on the Outer Continental Shelf of the U.S.  

This law was originally enacted to protect workers engaged in stevedoring and ship building operations, but through lawsuits and congressional amendment, has been expanded to encompass nearly any employee whose work takes him on or near “navigable waters,” including, for example, construction workers on barges and those that supply equipment or services “on the water.”  Longshore claims provide a higher benefits schedule and more severe penalties for noncompliance; thus, this law has extreme ramifications for companies who are not considered traditional “maritime” employers, but nevertheless have “incidental LHWCA” exposure.  

An employer who may have Longshore exposure must have Longshore insurance coverage.  Failure to secure coverage is against the law, and carries serious consequences.  An employer who fails to satisfy the insurance requirement is subject, upon conviction, to a fine of not more than $10,000, or by imprisonment for not more than one year, or both; and where the employer is a corporation, the President, Secretary and Treasurer may be individually liable for the compensation due.  In addition, failure to properly insure may provide the injured worker the opportunity to maintain an action at law or in admiralty for damages on account of the injury.  In such action, the employer’s defenses are severely limited and damages may greatly exceed those available in a workers’ compensation claim.  

LHWCA insurance coverage is expensive – generally two to three times the cost of state workers’ compensation coverage.  However, not having it could turn out to be more expensive than merely paying the insurance premiums.  Therefore, if your business operations take your employees on or near the water, you are well-advised to consult with your insurance broke or attorney to determine if you may be subject to the LHWCA, and if so, to secure proper LHWCA insurance coverage – lest you find yourself and your company in “deep water.” 

Injured at Work during an Earthquake? But this is Virginia . . .

Virginia was rocked by a 5.9 magnitude earthquake this afternoon. I was in my office, diligently working to zealously defend my clients, when the windows that overlook the Battleship Wisconsin and Nauticus on the Elizabeth River in Norfolk, VA began to shake; the blinds began to bang against the windows; my desk began to rumble. Yes, we had experienced an earthquake - in Virginia. I quickly checked the Internet and found that the preliminary reports were of a 5.9 magnitude (thereafter downgraded to 5.8) earthquake centered west of Richmond that was felt as far south as North Carolina, and as far north as New York. I quickly made calls to ensure the safety of my family, and once I knew that all was well, I returned to work. 

However, my thoughts soon turned the effect of a 'natural disaster' on the compensability of a work injury in Virginia. Although Virginia is not the first, or even the 45th state, that comes to mind when you think 'earthquake,' we do experience our share of natural disasters, most notably nor’easters and hurricanes. In fact, Hurricane Irene is expected to make landfall in the next few days. Mother Nature can be fierce. And what happens if you have an employee who sustains an injury as a result of, or even during, one of these phenomena of nature? 

The Virginia Workers' Compensation Commission has in fact addressed this concern, albeit more often as a result of a hurricane or lightning strike, but the same holds true for earthquakes. The general rule regarding natural disasters has been stated as follows: 

"If an employee is injured by some natural force . . . the event does not in and of itself fasten liability on the employer. The theory is that death or any incapacity to work resulting from some natural force operating directly upon the victim without the intervention of any other agency or instrumentality arises not out of the employment but is due solely to an act of God. However, when the nature of the employment, or some condition, or environment therein, brings into existence a special or peculiar risk to the disastrous forces of nature, the injury or death of an employee may be compensated as a risk of the employment. The applicable test seems to be not whether the injury was caused by an act of God, but whether the employment collaborated in causing the injury or death.” Lucas v. Fed. Express Corp., 41 Va.App. 130, 134–35, 583 S.E.2d 56, 59 (2003).

Simply put, sustaining injury while at work because of a hurricane, earthquake, lightning strike, is not sufficient, in and of itself, to render the injury compensable. The injured worker must still make that necessary causal connection between his working conditions and his injury. The question becomes whether the conditions of the employment put the employee at a greater risk of injury due to an act of God than the general public.

This is not always an easy question to answer, but it should always be asked and investigated. So, in the next day or two, or next week, if you have an employee reporting an injury related to our recent earthquake, or the impending hurricane, make sure you ask the right questions before accepting or denying the claim.

Are You Ready for Some Football? . . . What About Workers' Comp Claims from Football Players?

Thank the heavens, the lawyers, the love of football, or of money - whatever the case may be - it just doesn't matter, because football is back baby! After months of difficult, and often infuriating, contract negotiations football is set to return, on schedule - well, almost. And no worries, both the owners and the players will continue to get paid the big bucks. You can read more about the negotiations leading up to the new collective bargaining agreement here: http://nflpublicrelations.com/.

So, other than the fact that I am a huge football fan, why am I writing about the NFL in a workers' compensation blog? Well, it should come as no surprise that playing football in the NFL is tantamount to "heavy labor." Players can suffer serious injuries while working within the course and scope of their employment. But what you may not know is, although the 'headline issues' during the lock-out included salaries for draft picks, division of league revenues, practice and game schedules, another issue during negotiations of the collective bargaining agreement was workers' compensation. Basically, the league wanted to require players to file claims within their "home" state – the state in which their team, i.e, their employer, is based. Seems reasonable, right? 

Workers' compensation is largely a creature of state law. Each state has its own statutes and regulations regarding the amount and duration of benefits an injured worker is entitled to receive. And each state has its own statutes and regulations regarding the requirements an injury or injured worker must meet in order to receive benefits in a particular state – a.k.a. ‘jurisdiction.’ The U.S. Supreme Court has ruled that an individual can file for workers compensation benefits in any state that has jurisdiction. Thus, it is important to know the jurisdictional requirements of the states in which you operate so as to avoid unlawful “jurisdiction shopping,” which is when injured workers “shop” for the state with the most generous benefits. And this is exactly what the NFL players have been doing, and what the league was trying to curtail.   

The loophole, which the league tried, unsuccessfully, to close during this past lock out, allows players to file workers' compensation claims in states where their teams are not based, so long as the particular state’s jurisdictional requirements are satisfied. The resulting problem is that many retired NFL players file claims in California, which has among the most generous benefits provisions in the country, because they only need to have played one game in the state to qualify for benefits. Some of these players have received awards or settlements worth more than $100,000.00; whereas, it is likely that they would not have received such generous compensation in their home states. And this is continuing to cost the teams in inflated insurance premiums, and the insurance companies in inflated benefits.     

The moral of this story? For employers, contact us or your broker to ensure that you have proper workers' compensation insurance coverage in every state in which your employees could legally file a claim. And for carriers and adjusters, contact us anytime you have a "foreign" injury to ensure that claims are filed in appropriate jurisdictions.

To read more about the impact of workers' compensation in the recent NFL lock out, see Business Insurance, "NFL players' deal will allow workers compensation claims in other states," Jeff Casale, 26 July 2011.

Pre-Season begins August 11, 2011 7:30 p.m. Are you ready?!

When an Injured Worker Can Not Drive . . . and Can Not be Driven

When an employee is injured at work, the employer is obligated to provide medical treatment, and the injured worker is obligated to accept and comply with the provided medical treatment. Transportation to and from medical appointments is subject to the same edict. 

It is well established that the Commission holds the employer responsible for reasonable and necessary transportation costs in connection with an injured worker's medical treatment. See Va. Code §65.2.603. Thus, when an injured worker is unable to drive, or to be driven, to a medical appointment, and requests that the employer/carrier provide transportation, the employer/carrier must provide transportation or pay the reasonable costs of such.

But what happens if the transportation company refuses to transport the injured worker due to his or her use of profanity or otherwise abusive behavior? Or suppose the injured worker makes unreasonable demands from the transportation company? Just how far must the employer/carrier go to accommodate an injured worker's transportation needs?

Unjustified refusal of medical treatment is grounds for terminating workers' compensation benefits. Va. Code §65.2-603(B). An injured workers' attitude toward medical treatment can rise to the level of refusal of medical treatment. For example, the Commission has found refusal of medical treatment where an injured worker was difficult and irate with the therapist during a functional capacity evaluation; the injured worker's attitude interfered with the provided medical care. Similarly, if the injured worker interferes with the provided medical care by creating roadblocks to transportation to the appointments, that too may be considered refusal of medical treatment.

It is likely that the Commission will require that the employer/carrier provide at least a second chance. Therefore, arrange for transportation with another company. If the new service reports similar problems, then take appropriate steps to terminate benefits until such time as the injured worker is willing to comply with medical treatment, including transportation.

As a practice point, be sure to obtain written documentation from each transportation provider regarding the injured worker's behavior and why it is unable to provide transportation to him or her - which can then serve as the documentary evidence needed to support the termination of benefits.

Workers' Compensation Insurance

With the intention of protecting employees by enabling them to collect any workers’ compensation claim due them by their employers regardless of the financial health of the employer, Virginia law requires every employer who regularly employs three or more full-time or part-time employees to purchase and maintain workers’ compensation insurance.  In addition to maintaining proper insurance, employers subject to the Virginia Workers’ Compensation Act must file evidence of their legal compliance with this law on an annual basis, or as otherwise required.  Further, employers are prohibited by law from deducting from the wages of any of its employees any part of the cost of the insurance or otherwise requiring employees to contribute to such costs.    

In complying with this insurance requirement, Virginia employers may purchase and maintain a workers’ compensation insurance policy from a company licensed to do business in Virginia.  In the alternative, an employer may apply to the Virginia Workers’ Compensation Commission for approval to operate as an independent self-insurer.  Additionally, there are other, less often utilized methods of ensuring compliance with this law that may be more cost-effective and better suited to a particular business operation.  An employer may become a member of a group self-insurance association licensed by the Virginia State Corporation Commission, or enter into an agreement with a professional employer organization (“PEO”).

Employers who refuse or neglect to obtain workers’ compensation insurance can be fined up to $5,000.00, and in fact, the Commission has been instructed by the Virginia General Assembly to impose a civil penalty on all employers that do not comply with the insurance provisions.  Also, failure to provide the required notification to the Commission, or requiring any monetary contribution from employees for the cost of insurance, can expose the employer to additional civil fines and penalties.  In addition to the civil penalties assessed, any employer who knowingly and intentionally fails to comply with the insurance requirements is guilty of a Class 2 misdemeanor; and continuing failure to obtain insurance can result in the issuance of an order requiring the offending employer to cease and desist all business transactions until such time as the proper insurance is obtained.  

If you are unsure whether you are an employer covered by the Virginia Workers’ Compensation Act, or whether you have properly complied with the laws requiring insurance coverage, please contact your attorney, lest you find out the hard, and expensive, way after a workplace injury occurs. 

To learn more about the insurance requirements, follow this link to the Virginia Workers' Compensation Commission website: VWCC: Employer FAQs.

Preventing Workers' Compensation Fraud

According to some statistics, workers’ compensation fraud contributes significantly to the annual estimated 30 billion dollar insurance fraud problem. Fraudulent workers’ compensation claims drain time and resources that are meant to assist workers legitimately injured on the job, and cost employers in higher insurance premiums.     

Though insurance fraud can be a staggering problem, there are steps employers can take to lessen the risk of suspect or bogus workers’ compensation claims.

1.             Challenge the common misperception that workers’ compensation fraud is a victimless crime and educate employees on the large-scale consequences.  Using posters and newsletters spread the word that yzou and your insurance carrier will vigorously investigate suspect claims and refer employees who bring fraudulent claims to appropriate law enforcement agencies for prosecution.    

2.             Pay attention to the rumor mill.  Following a workplace injury, and throughout the claims process, rumors often circulate among employees. Sometimes rumors are grounded in fact. Paying attention to worker scuttlebutt can help in investigating a claim’s validity.

3.             Implement an efficient injury response plan and clearly communicate the proper practices to employees.  Provide procedures for reporting occurrences.  Designate appropriate personnel to process accidents and claims, secure a description of the accident, take photographs and obtain statements from the injured worker and witnesses.  Promptly provide appropriate medical care and encourage employees to seek treatment.      

4.             Consider using video monitoring equipment. Surveillance tactics are often utilized by insurance companies to “catch” fraudulent claimants; employers can utilize similar tactics to deter fraud.  Although such tactics may seem intrusive, if properly conducted at times and places where there is no reasonable expectation of privacy, it is not an illegal invasion of privacy. 

5.             Know how your insurance carrier handles claims.  Keep the lines of communication open with your carrier or the attorney assigned to represent your interests in workers’ compensation claims.  Be responsive to information requests. 

Finally, keep in mind that although workers’ compensation fraud can be costly, and frustrating, remain wary of becoming too cautious.  Be careful about accusing anyone of workers’ compensation fraud, particularly if coupled with termination of employment.  If you cannot prove it, and often times you can’t, there may arise a strong inference that you acted improperly in response to a legitimate claim.  Be careful not to become tainted by staggering fraud statistics and keep in mind the beneficent purpose of workers’ compensation laws.

For additional information, or to report workers' compensation fraud, you can contact the Virginia State Police Insurance Fraud Program. Here is the website: Virginia State Police Insurance Fraud Program.

Employer's Accident Reports

Employers often ask why they must file an Employer’s Accident Report (“EAR”) following every injury at work, even when the employee does not lose time from work, require immediate medical attention, or file a workers’ compensation claim.  The answer is simple.  The Virginia Workers’ Compensation Act requires that an employer file the EAR within 10 days of an injury.  

However, there are other reasons why filing an EAR is important.  First, employees generally have 2 years from the date of injury to file a claim for workers’ compensation benefits; however, under certain circumstances, the failure to file an EAR tolls that 2-year period until such time as the report is filed.  

Also, filing a timely report aids insurance carriers and adjusters in processing claims, ensuring that necessary benefits and payments are made in a timely fashion.  This can help avoid possible fines and sanctions from the Virginia Workers’ Compensation Commission (“Commission”).

Finally, if an EAR is not filed, the employer or its insurance carrier may be required to appear before the Commission at a show cause hearing to explain why an EAR was not timely filed.  The Commission may assess up to a $500 penalty; and if the Commission determines the failure was willful, it can assess a penalty of not less than $500 and not more than $5,000.  

There are several events that trigger the need to file an EAR within 10 days of an injury or accident.  They include:  (1) lost time from work exceeds 7 days; (2) medical expenses exceed $1,000; (3) compensability is denied; (4) issues are disputed; (5) accident resulted in death; (6) permanent disability or disfigurement involved; or (7) a specific request is made by the Commission.  

Filing an EAR has never been simpler.  All accidents must be reported to the Commission electronically by EDI. Instructions for completing the form are provided.  You should be as thorough and accurate as possible, however, remaining equivocal is also recommended.  For example, use language such as “the employee advises . . .”  Although the EAR is generally not considered evidence, if you intend on disputing a claim, consistency is an important factor in building a strong defense. 

For more information on preparing and filing your Employer's Accident Report, contact us, or check out the Commission's website here: VWCC.Employer's Accident Report.

Welcome to Vandeventer Black's Workers' Compensation Blog

I am pleased to introduce Vandeventer Black's Workers' Compensation Blog on which I will be posting case studies, suggested practices and policies, and general observations about the workers' compensation system in Virginia, as well as the federal system pursuant to the Longshore & Harbor Workers' Compensation Act. I, along with my fellow Vandeventer Black workers' compensation attorneys, hope to be able to address your concerns, answer your questions, and provide insights gained over many combined years of legal practice in these areas. I anticipate making this blog a productive, and interactive, tool for insurance adjusters, employers, (and yes, even injured workers -

although, if you are an injured worker reading this blog, be sure to read the disclaimer above. This blog is not designed to give legal advice about any specific case or set of facts; cases must be analyzed individually), and other attorneys. So, please let me know what you think, and what you want to know. - Lisa 

My first substantive post will follow, and aptly addresses the Employer's Accident Report, which is generally how a workers' compensation claim gets its start. It therefore seemed appropriate that it be used to give this workers' compensation blog its start.