Wednesday, October 1, 2014

Civil Penalty Increased for Noncompliance with Virginia Workers' Compensation Insurance Laws

Uninsured employers shall be assessed a civil penalty, subject to a maximum of $250 per day of noncompliance and subject to a maximum civil penalty of $50,000.


The 2014 General Assembly approved an increase in the civil penalty imposed when an employer required to insure under the Workers’ Compensation Act fails to insure. The law change amended section 65.2-805 of the Workers’ Compensation Act, which previously imposed  which a civil penalty of at least $500 and up to $5,000 for each period of being uninsured. The new provision provides that employers shall be assessed a civil penalty of not more than $250 per day for each day of noncompliance, subject to a maximum penalty of $50,000, plus collection costs, which constitutes a significant increase in the potential penalty. The amendment was approved March 7, 2014 and became effective on July 1, 2014.


Workers’ compensation coverage requirements are complex, but focus on the number of employees. Employers in Virginia are required to insure when they regularly employ three or more employees. It is important to be aware that an “employee” is defined broadly under the Act and includes every person in the service of another under any contract of hire, written or implied. “Employee” includes statutory employees (subcontractor’s employees), corporate officers, minors, undocumented workers, working family members, apprentices, temporary and seasonal employees. A business that doesn’t count all of its employees may not realize it is required to carry coverage.

Employers should also be aware, designating a worker as an “independent contractor” does not necessarily mean they are not an employee. Workers’ compensation looks to whether the business exerts control over the manner and means of how the work is performed. In the event of a claim, the facts of the work circumstances will determine if the individual is covered for workers’ compensation, regardless of payment on a 1099 designation.

Please contact an attorney or the Virginia Workers’ Compensation Commission to check your coverage and avoid coverage gaps. Uninsured employers and new businesses are urged to familiarize themselves with workers’ compensation insurance coverage requirements, obtain coverage when required, be compliant and avoid a penalty. Workers’ compensation is mandatory coverage. It is required by state law, and no other form of insurance may substitute. Failure to have coverage due to lack of knowledge is not a valid excuse for failure to insure.

Wednesday, June 18, 2014

New Virginia Laws Address Medical Provider Billing

On July 1, 2014, new laws go into effect in Virginia to address medical provider billing in state workers' compensation cases.  The changes include additions to Virginia Code Section 65.2-605 which limit the amount that medical providers may charge for the services of nurse practitioners, physician's assistants and assistant surgeons during surgery.  Additionally, the changes limit the ability of physicians to bill separately for multiple surgical procedures completed on a single surgical site.


New rules were also added to assist in the collect payments and resolution of billing disputes in a timely manner.  Virginia Code Section 65.2-605.1 requires payment within 60 days after receipt of an itemized billing, but allows the employer or carrier to contest the bill if notice is given within 45 days after receipt of the itemized billing, provided that the notice contains certain detailed information.  Payments not timely made or contested are subject to interest at the judgment rate of interest.  The new rules also provide a one year window for carriers to seek recovery of payments made to health care providers and for medical providers to challenge the sufficiency of payments made.

Tuesday, April 22, 2014

Paying Workers to Attend Medical Appointments

An injured worker is entitled to reimbursement for mileage expenses when traveling to and from related medical appointments. But, is that employee also entitled to receive wage loss benefits for the time missed from work while attending related medical appointments? That answer is not as easy.


It is certainly reasonable to expect, and even require the injured employee to schedule medical appointments around his work schedule so as to avoid disrupting the workday . Of course, health care providers often have the same "work hours" as the rest of us. Thus, there will inevitably arise instances when a worker must miss work to attend medical appointments. However, before compensating him for this missed time, there are some questions that should be asked and answered. 


A claimant does not have the unfettered right to schedule a medical appointment during work time. The Commission requires proof that the claimant reasonably had to miss work in order to attend the medical appointment. In so finding, the Commission has ruled that a claimant who schedules a required medical appointment on a workday, or during work time, may receive temporary total or partial benefits if it is shown

(1) that the medical condition required the appointment during work hours;
(2) that scheduling the appointment at a non-work time would interfere with obtaining favorable work assignments; or
(3) that scheduling the appointment at a non-work time would cause substantial hardship.

The burden is on the claimant to show why his appointment could not have been scheduled on a non-work day or time. Generally, the Commission will find the burden met where there is evidence that the worker tried, unsuccessfully, to schedule appointments around work, the provider has limited office hours available, and/or there is significant travel time involved.

So, before agreeing to compensate workers for attending medical appointment, be sure to confirm the facts. Advise the worker that he must put forth a good faith effort to avoid missing work to attend medical appointments; advise the employer to try to accommodate medical appointments by adjusting work schedules if feasible. If it appears to be a recurring problem with a particular claimant, ask him to make the required showing or effort and necessity before agreeing to pay compensation. Often, this will prompt the worker to miraculously obtain appointments outside of work time without any undue hardship. 

Thursday, April 3, 2014

Do I Have to Include That? . . . Calculating AWW


 
Must you include non-Longshore wages when calculating the pre-injury Average Weekly Wage (AWW) for a claim pursuant to the Longshore & Harbor Workers' Compensation Act (LHWCA)? In a nutshell - YES. 
 
The scenario is not at all uncommon when it comes to Longshoremen and other maritime workers who qualify for LHWCA benefits following an industrial injury. It is a cyclical, transient, even sporadic way to earn a living for many. In the year preceding an injury, an employee may work for several different employers, both in Longshore and non-Longshore jobs. So how do we calculate the pre-injury AWW for purposes of determining or paying benefits for lost wages? 
 
Under Section 10 of the LHWCA, there are three methods of calculating AWW. The first method applies to workers who have worked for most or all of the previous year in the Longshore employment. The second method applies to workers who have not worked most of the previous year, but the employer has the records of a similar employee upon which it can base a wage calculation. If neither of the first 2 methods fairly or reasonably approximate the actual pre-injury earning capacity of the injured worker, the judge will resort to the third method located in §10(c) of the LHWCA. This statute is sometimes referred to as the "catch all" provision. 
 
Under §10(c), the judge considers many factors in attempting to approximate an entire year of work for the claimant. It is important to note that the judge has broad discretion under §10(c). For instance, he or she may go back in time beyond one year to determine the worker's actual earning capacity at the time of the injury; and the judge may consider, among other things, the following:
  • Actual earnings of the claimant at the time of injury
  • Average annual earnings of other similar employees
  • Earning pattern of the claimant over a period of years prior to the injury
  • Claimant's typical wage rate multiplied by a time variable
  • All other sources of income, including earnings from non-longshore employment
  • Probable future earnings of the claimant
  • Any other fair or reasonable alternative 
 
Using the above factors, the ALJ will arrive at a figure approximating claimant's annual earnings. That figure will then be divided by 52 to reach the AWW. In the case where a claimant has worked both Longshore and non-Longshore employment sporadically for the past year, the ALJ almost certainly will include the non-Longshore wages in order to determine the claimant's actual earning capacity. 
 
One important caveat is that if the employee has wages earned in other employment that are unaffected by the claimant's injury, those wages are excluded from the calculation of annual wage earning capacity. The ALJ must determine whether the injury disables the claimant from all sources of income, or only from his Longshore employment. 
 
The calculation of the AWW is critical in determining the amount of compensation benefits a claimant may be entitled to receive. Therefore, it is important to carefully and accurately calculate the AWW as early as possible once a claim for benefits has been made.