Workers’ comp hearings stalled by COVID-19

The coronavirus outbreak put workers’ compensations hearings on hold, and Richmond attorney Andrew Reinhardt is concerned on how the commission will catch up.

“We’re all working remote. The judges, the attorneys on both sides, our parties are remote… It’s a challenge,” Reinhardt said. “These cases need to move forward.”

Last month the Virginia Workers’ Compensation Commission, or VWC, cancelled all in-person hearing and mediations between March 15 through April 30 – a delay that, on average, will stall 250 and 100 evidentiary hearings and mediations per week, Reinhardt said.

“The VWC is concerned about preserving a trial record, preserving trial exhibits and preventing a further back log,” Reinhardt said. “We hope the video conferencing for evidentiary hearings will solve those concerns.”

The commission issued a special order allowing evidentiary hearings via video conferencing effective May 1. In the meantime, VWC is encouraging attorneys and clients to submit on-the-record proceedings, or written records by the employer and employee describing a workplace incident, in cases where “the parties are able to stipulate to the facts necessary for the dispute to be adjudicated.”

Under “normal circumstance,” Stephen Marshall, a defense attorney in Richmond, said it’s unusual for workers to submit on-the-record proceedings upon initial application.

“I’ve never had a case where either party requested an on-the-record hearing in lieu of an evidentiary hearing,” Marshall said. “They prefer to be able to explain their case to the deputy commissioner.”

Though attorneys across the board are turning to video conferencing to communicate with clients like never before, this solution provides its own set of challenges, as well. For example, not all parties and witnesses may have access to “minimum technical requirements,” or a device equipped with a video camera and microphone, according to the VCW.

Not having necessary technical equipment may lead to further delays.

“Deputy Commissioners have broad discretion to continue or cancel the hearing if attendees cannot meet the minimum technical requirement for participants,” according to the VCW.

If not all participants have access to such equipment, they may opt to conduct depositions via telephone calls – that is, if all party members agree to do so.

“I’ve had phone depositions upon agreement by the parties… But we really need a lot of agreement by the parties to get things done,” Reinhardt said.

But mediations via video conferencing and telephone calls isn’t the only hoop workers’ comp lawyers are having to jump through. On April 6, the commission closed temporarily after an employee began exhibiting symptoms of COVID-19. Though the commission’s clerk’s office is closed, parties may continue to file documents by fax or WebFile.

Though workers’ comp claims can continue to be made during the building closure, Reinhardt said that as long as no one is inside the clerk’s office, orders – which are sent the “old fashioned way” via mail – cannot be made.

“Even if it’s an agreed-upon order, the commission cannot issue any orders while the building is closed because worker’ comp statutes require them to mail out the orders to any interested parties,” he said.

Individuals who are already receiving workers’ comp benefits are being impacted by the coronavirus, as well. In many cases, when a partially disabled worker receives worker’s comp benefits, that worker must continue looking for work in order to continue receiving benefits.

In accordance with the guidelines of social distancing, this obligation has been suspended in unemployment cases in Virginia until further notice.

“The Commonwealth has taken unprecedented steps to fight the spread of COVID-19 as well as making substantial moves to help those in the workforce who’ve been affected by this global event,” states the Virginia Employment Commission website.

Though Virginians have had to adjust the ways they work across all industries, Marshall said his work has not been directly impacted by the coronavirus.

However, he expects virus-related inquiries from clients are “forthcoming,” particularly with regard to whether or not employees may receive benefits if they believe they contracted the coronavirus on the job.

Though some states, like Illinois, have approved emergency rulings to create an “automatic presumption” that essential workers diagnosed with COVID-19 contracted the virus at work, Virginia has yet to pass such measures, though Marshall said it’s “possible.”

“We don’t know that this condition, this pandemic is going to be temporary,” Marshall said. “It’s certainly something the General Assembly would have to discuss and figure out.”

Virginia Beach Sheriff Ken Stolle hopes they will. After two of his deputies were diagnosed with COVID-19, he sent a letter to Attorney General Mark Herring with a series of questions asking if and how first responders who become ill from work-related exposure to COVID-19 will be covered under the existing act and related statutes.

“I think I need to know these answers before I ask my deputies to do things they may not be equipped to do so they know what the risks are,” he wrote in the April 10 letter.

Stolle said Herring’s office hopes to have a response to his inquiry by the veto session on April 22.

Despite recent challenges, Reinhardt and Marshall agree that the commission has been “phenomenal” in finding ways to push past virus-related obstacles.

“Desperate times sometimes break out different ways of doing things,” Marshall said. “As difficult as it has been, I think our commission has really gone to great lengths to proactively handle [COVID-19] the best they can.”

Reinhardt said he expects the commission to reopen by Monday, April 20.