by KPM LAW | Mar 27, 2023 | Uncategorized
Written by Bob McAdam, Esq. Edited by Jessica Gorman, Esq. For a claimant to prove a compensable injury by accident the claimant must prove that he has sustained an injury by accident arising out of and in the course of his employment. A case decided by the Full Commission in March 2023 illustrates why it is important to know as many facts as possible before making a decision regarding a claim. In O’Brien v. Northern Va. Community College, JCN: VA00001876256 (03/03/2023) illustrates the point. The accident occurred while the claimant was walking from her third-floor office to attend a meeting on the first floor of the employer’s medical education building. Finding her way to the meeting blocked by a locked door, the claimant attempted an alternative route by backtracking through the second floor. While walking down a second-floor hallway, the claimant encountered a co-worker. As she turned to address the co-worker, the claimant fell. There were three separate arguments made to support the claimant’s claim, all of which failed before the Deputy Commissioner and, in a 2-1 decision of the Full Commission. The Claimant’s shoe stuck to the floor. The Claimant was distracted when she turned to address a co-worker. The Claimant was holding a computer and papers in her left arm contributed to the awkwardness of the fall. You would think, that based on those three bullet points, the claimant would prevail. However, she did not. This case does not suggest anything other than the “arising out of “ prong is extremely fact specific. When taking the statement of a claimant it is very important to get...
by KPM LAW | Jul 18, 2022 | KPMBlog, News, Uncategorized
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 KPM LAW | Jun 30, 2022 | Uncategorized
An estimated 2.7 million Virginians reside in a rentedresidence.That means thatone in every three households are rentals.In Virginia’s larger citiesthe percentage of rental households is much higher. For example, in both Alexandria and Richmond, around 60% of the cities’ households rent their residence.1With such a large number of rental residences, questions of liability for personal injuries caused by the condition of the rental premises often arise. In most instances, the Virginia Residential Landlord Tenant Act (hereafter “the VRLTA”)(Va. Code Ann. § 55.1-1200, et. al.)governs the relationship between a landlord and a tenant. For example, the VRLTA restrictscertain lease terms, requires the landlord provide certain essential services, and governs the eviction process. Despite the seeminglycomprehensive nature of the VRLTA, one situationthe VRLTAdoes not controlis when a tenant is injured as the result ofthe leased premises’ condition.That situation is governedby the common lawestablished overdecades of Supreme Court precedent.See Isbell v. Commercial Inv. Assoc., 273 Va. 605, 644 S.E.2d 72 (2007) andStewart v. Holland Family Properties, 284 Va. 282, 726 S.E.2d 251 (2012). For decades, Virginia Courts have held that “The tenant take the [rental] premises as they are, and his invitees take the risks of the situation.”Caudillv. Gibson Fuel Co.,185 Va. 233,240, 38 S.E.2d 465, 469(1946). Stated another way, “a landlord has no duty of care to maintain or repair leased premises when the right of possession and enjoyment has passed to the lessee. The duty resides with the lessee under these circumstances and no action in tort can be sustained against the landlord for personal injuries resulting from the failure to maintain or repair the leased property.” Stewart v. Holland...
by KPM LAW | Jun 12, 2022 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Brian A. Cafritz, Esq.Virginia has long had a defense-friendly one-year statute of limitations for defamation claims. Under Virginia Code § 8.01-230, the accrual of right of action occurs when injury is sustained. In the context of a defamation action, the cause of action accrues and the statute of limitations begins to run when the injury to reputation is sustained by publication. Va. Code § 8.01-230; see, Weaver v. Beneficial Finance Co., 199 Va. 196, 200-01, 98 S.E.2d 687 (1957).Over the last hundred years, it has been relatively easy to calculate the accrual date for the defamatory acts. If one made a statement or drafted a written letter, the date of publication of the statement or letter became the accrual date. For example, if a photocopy of the same letter was copied and mailed to different recipients on different dates, the law considers each mailing of the same letter to be a new publication that creates a separate cause of action with the statement being heard on different dates in different locations and causing different damages. As a result, based on the date of publication, each mailing of the photocopied letter has its own accrual date for the purposes of the statute of limitations. See Bradford J. Brady v. Stefanie Marshall and M3-Marshall Contracting & Masonry, Inc., (Cir. Ct. Albemarle County, Case No. CL19-1701, J. Higgins, 2021).However, in today’s society, communications through letters is becoming less common. Written letters had been replaced by emails and texts. But today’s technology has changed that as well. The introduction of social media platforms, pod casts, and multimedia communications complicated that calculus...
by KPM LAW | Jun 12, 2022 | Uncategorized
A new piece of legislation will create big changes in the landscape of Virginia Liability Auto Insurance Coverage, and will significantly impact the defense of our clients in claims arising from motor vehicle accidents, particularly in the context of UM/UIM claims. Virginia Senate Bill 754 introduced by Sen. Mark Obenshain removes Virginia’s longstanding credit/offset for available liability coverage that reduces or eliminates the benefit of underinsured coverage. Historically, a claimant’s insurance company would benefit from an offset for the negligent driver’s liability coverage. For example, if Claimant A made a claim against Tortfeasor B for injuries resulting from negligent operation of a motor vehicle, and Tortfeasor B had a $25,000 liability policy while claimant A had a $50,000 UIM policy, then the underinsured carrier would only face exposure of $25,000 as opposed to the full $50,000 because it would get a credit for the $25,000 paid by the liability carrier. The bill allows purchasers of insurance to avoid extra premium if they instead choose tocontinue allowing application of the offset provision. Insurance companies lobbied against the bill unsuccessfully, and the Virginia Senate passed the bill on February 4, 2022. The bill was subsequently passed by the Virginia House of Delegates on March 9, 2022 and signed into law by Governor Youngkin on April 11, 2022. The new law goes into effect on July 1, 2023 and will only impact policies that go into effect beyond that date. As a result of this measure being signed into law, there will be an amendment to Va. Code §38.2-2202. The statute requires that all policies issued after July 1, 2023 include the...
