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First study of workers’ compensation conducted in 30 years

comp_mainThe Joint Legislative and Audit Commission is conducting its first study on workers’ compensation in Virginia in almost 30 years.

JLARC, which evaluates government programs and analyzes state agencies on behalf of the Virginia General Assembly, has been researching Virginia Workers’ Compensation Commission since the start of the year. The last review of the VWC was in 1990. Project manager Drew Dickinson and three other analysts are investigating all facets of the workers’ compensation system, including employee and employer rights, by way of interviews, surveys, focus groups and more. The team will present its findings to the legislature in December.

The main issue that prompted the JLARC study was the question of presumption. In other words, determining which injuries and diseases can be presumed to have happened on the job and therefore qualify for workers’ compensation benefits.

“For the average person, if they have an accident on the job, they have to present what happened and file evidence,” JLARC Director Hal Greer said. “If you have a presumption on what happened and presume to have a valid claim, then the burden is on the employers to rebut that presumption.”

The study coincides with the 100th anniversary of the VCW. The “Virginia Workmens’ Compensation Act” was adopted on March 1918, with full operations going into effect in January 1919. Vivian Lane, claims services department manager, said “centennial celebrations” began in March 2018 and will continue through December of this year.

“It’s been amazing to watch the progress, to watch how far we’ve come,” Lane said.

VWC has undergone many changes since Alexandra attorney Lawrence Pascal began his career more than 50 years ago. As a young lawyer in the 1960s, Pascal recalls working with secretaries who had been with the commission since it opened its doors in 1911.

“I’m not sure who else around has practiced [workers’ compensation law] this long,” Pascal said.

Throughout his career, the most “dramatic change” Pascal has seen is that litigation has become more complex over the years. He recalled a time he traveled to Richmond for a hearing and found that “no space was available” in the administrative building. As a solution, the bailiff and a commissioner set up a table in the corridor of the basement and held Pascal’s hearing there.

“It was less contentious,” Pascal said. “The act was designed to minimize litigation and to provide benefits quickly… But the stakes have risen over the years, so of course the complexity of the litigation has also risen.”

One “complexity” Pascal has seen over the years is that more investigation is done into workers’ compensation cases than ever before. This is seen particularly in “slip and fall” cases, or unexplained accidents on the job, and “repetitive injuries,” or injuries a worker may accrue over time. Neither instance qualifies for workers’ compensation in Virginia.

Pascal said the “extensive investigation” done on such cases can prolong hearings for up to a year, during which no benefits are forthcoming to the claimant.

“A lot of the issues that proceed to a hearing don’t necessarily need a formal hearing and testimony,” Pascal said. “Back in the day, some cases could be resolved through telephone calls and on a less formal basis than proceeding to hearing and fighting it out and dragging it through an appeal.”

Michele Lewane, founder of the Injured Workers Law Firm in Richmond, agrees. Her “biggest goal” is to help people “who don’t even need lawyers.” That’s why she wrote the book, “Ultimate Guide to Workers’ Compensation in Virginia: Everything You Need To Know If You’ve Been Hurt On The Job,” that she provides for free to potential clients.

“A lot of people don’t realize they don’t have a case — or that they do have a case but can handle it on their own,” Lewane said.

Lawyers are expensive. And many injured workers struggle to afford legal fees – especially when keeping up with other costs. As of July 1, 2018, the VWC received 44,561 reports of major workplace injuries, according to the commission’s annual report.

In Virginia, injured workers can receive up to two-thirds of their wages for a maximum of 500 weeks. However, wages are capped at $1,082 and medical benefits often are minimal, said Richmond attorney Andrew Reinhardt.

“An injured worker will only receive wage and medical benefits… They’ll never receive benefits for their pain and suffering and, in some cases, lifelong injuries,” Reinhardt said.

One change Pascal hopes to see through the JLARC study is a system in which injured workers can receive medical benefits more quickly. Currently, an injured employee may go a year or more without receiving workers’ compensation benefits while their hearing is being processed.

“The amount of discovery and investigation that goes into a claim has I think, at times, unnecessarily dragged a claim on… to the detriment of the claimant,” Pascal said. “You’ve got to develop a system where [workers] can receive immediate medical care, within reason,” Pascal said.

Despite changes they hope to see made to workers’ compensation laws, most attorneys agree that VWC is a consistently helpful resource for employees and employers alike.

“Every deputy commissioner is extremely professional and excellent,” Lewane said. “And timing, they do well with timing – with how quickly they process people’s claims.”

Pascal said he has never experienced any “philosophical hangups” with the commission.

“They look at a case and they decided on the merits whether there are benefits to be received… That’s important, especially when it’s an injured worker and you’re fighting for your life here, that’s important,” Pascal said.

Though the work can be strenuous, Reinhardt is grateful to have fallen into workers’ compensation law at the start of his career 40 years ago.

“It’s a blessing to be able to help people,” Reinhardt said.

The VCW will continue its 100th anniversary celebration with a black tie gala at the Downtown Richmond Marriott on Oct. 28.