by kpmAdmin | Jul 16, 2018 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Andrew Willis, Esq. Edited by Rachel Riordan, Esq. The General Assembly convened earlier this year and enacted a number of changes to Virginia’s workers’ compensation laws. However, a number of proposals that would have resulted in even bigger changes failed. Below is a summary of what did and did not become law in 2018: Legislation Passed by the General Assembly The Hon. Ferrell Newman, already a Workers’ Compensation Commissioner, was appointed Chairman of the Workers’ Compensation Commission effective July 1, 2018. He takes over as Chairman from Commissioner Wesley Marshall for a 3 year term. HB 82 held the tax rate paid by insurance carriers and self-insured employers to fund the Uninsured Employer’s Fund steady at .005 %. HB 558 added clarity to the term “medical community” for employers obligated to pay for out-of-state medical treatment. HB 117 provided that specially-appointed Deputy Commissioners or retired Commissioners can be counted in determining whether there is a quorum of the full Commission. Legislation Not Passed by the General Assembly HB 1543 would have expanded the time period for many claimants to file new claims for benefits. Specifically, the bill provided for the tolling of the two-year limitations period for filing a new claim during the time when the employer was paying either medical or wage loss benefits. This is not allowed under current law. HB 969 would have drastically reduced the ability of claimants to seek compensation from a “statutory employer” in cases where their own employers did not have workers’ compensation insurance. HB 460 would have made it easier for a claimant to bring a civil suit for...
by kpmAdmin | Jul 16, 2018 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Kate Adams, Esq. Edited by Bill Pfund, Esq. In the 2018 legislative session there were a number of important bills before the Senate and House of Representatives that could have had a substantial impact on the damages claims Plaintiffs are allowed to make and the amount of punitive damages plaintiffs can receive. Senate Bill 895 sought to increase the cap on punitive damages from $350,000 to $600,000. After the bill was initially proposed it was amended by the Senate, which reduced the sought after increase from $600,000 to $500,000. This version of the Bill passed the Senate but when sent to the House of Representatives for consideration, it failed to pass. A second attempt at increasing the amount of punitive damages recoverable by a plaintiff, House Bill 1305, was much broader and sought to eliminate the limitation on punitive damage awards all together. This bill did not gain support in the House of Representatives and failed to make it out of subcommittee. Efforts to increase the cap on punitive damages have been before the House and Senate three times in the past four years. In 2016 and 2015 there were similar bills to Senate Bill 895 that sought to increase the cap on punitive damages. Senate Bill 111 in 2016 sought to increase the punitive damage cap from $350,000 to $500,000. This bill, like the recent Senate Bill 895, passed the Senate but did not pass the House of Representatives. In 2015 House Bill 2360 sought to increase the punitive damage cap from $350,000 to $750,000. The Bill also failed to make it out of the House...
by kpmAdmin | Feb 19, 2018 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Nicholas P. Marrone, Esq. Edited by Rachel A. Riordan, Esq. Under the Virginia Workers’ Compensation Act (“the Act”), claimants that have been terminated for justified cause are not entitled to compensation benefits during periods of light duty release regardless of whether or not they market their residual capacity. Prior to 2005 the standard for whether or not a claimant was terminated for cause was based on a Virginia Supreme Court case called Goodyear Tire & Rubber Co. v. Watson, 219 Va. 830, 252 S.E.2d 310 (1979). In that 1979 case the claimant had returned to light duty work offered by the Employer but was then terminated due to poor performance, which had nothing to do with the claimant’s injury. The Court held that a claimant who is terminated for cause unrelated to his work injury while on light duty is not entitled to receive compensation benefits under the Act. This standard is different from how Virginia treats a refusal of light duty employment from an employer. When it comes to a refusal of light duty, a claimant can cure and have compensation benefits reinstated during periods of light duty release by adequately marketing themselves within six (6) months of the refusal. A claimant cannot, however, cure a termination for cause to reinstate compensation benefits during light duty release. Around the mid-1990s, however, the Commission began to stray from the standard set by the Virginia Court of Appeals in determining whether or not a termination for cause would result in the Claimant being forever barred from compensation benefits during periods of light duty work release. During this...
by KPMLAW | Mar 20, 2017 | KPMBlog, News, Uncategorized, Updates
Written by Bill Pfund, Esq. Virginia has a series of “Equine Activity” statutes, § 3.2-6200-§ 3.2-6203 that say that a person shall not be liable for an injury to or death of another resulting from the intrinsic dangers of horse riding (“equine activities”), and that no participant shall have any claim against, or recover from, any other person for injury or death of the participant resulting from the intrinsic dangers of equine activities. Intrinsic dangers of equine activities is defined as those dangers or conditions that are an integral part of equine activities, including: (i) the propensity of horses to behave in ways that may result in injury, harm, or death to persons on or around them; (ii) the unpredictability of a horse’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals; (iii) certain hazards such as surface and subsurface conditions; (iv) collisions with other animals or objects; and (v) the potential of a participant acting in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the equine or not acting within the participant’s ability. The Virginia statute goes on to say that no participant, or the parent or guardian of a participant, who has knowingly executed a waiver of their rights to sue, or agrees to assume all risks specifically enumerated under the statute, may maintain an action against or recover from an equine activity sponsor or an equine professional for an injury to or the death of a participant engaged in an equine activity. The waiver must give notice to...
by KPMLAW | Mar 19, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Jessica Relyea, Esq. Edited by Brian A. Cafritz, Esq. Businesses often check a job applicant’s social media sites prior to making an offer of employment. Some companies encourage employees to post about their job on social media as a marketing device to help sell their products or services. Other companies discourage employees from mentioning them for public relations reasons. But with the ever-growing impact and reach of social media, companies need to start asking whether they can be legally liable for what their employee posts, shares, or tweets on social media. Is a retail store responsible if an associate posts an unflattering picture on Instagram of a customer trying on clothes? Does a restaurant become legally liable if an employee accuses a customer of theft on Facebook? Can a fast-food chain be held responsible if an employee sends out a series of tweets bullying a vendor or coworker? There is little case law specifically discussing social media liability. However, the answers to the question will likely lie in the scope of employment analysis. In Virginia, an employer may be held vicariously liable for the intentional torts (e.g. defamation, intentional infliction of emotional distress) of its employee only if the tort was committed within the scope of the employee’s employment. Tri-State Coach Corp. v. Walsh, 188 Va. 299, 49 S.E.2d 363 (1948); Oberbroeckling v. Lyle, 234 Va. 373, 381 362 S.E.2d 682, 687 (1987). When an employer-employee relationship has been established, the employer has the burden of proving—by a preponderance of the evidence— that the employee was not acting within the scope of his employment when committing the...
by KPMLAW | Feb 28, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Judge David Johnson of the Chesterfield County Circuit Court recently dismissed a $100,000.00 lawsuit at the request of KPM Law attorney Bill Pfund, because the plaintiff sued a deceased individual as well as that person’s “Estate”. Although Virginia law allows lawsuits to proceed against an Administrator of a deceased person’s “Estate” (even if the “Estate” has no assets other than insurance which could pay for the plaintiff’s damages), the law requires a Plaintiff to sue an actual living person. In this case, the Plaintiff, Albert Lee, was injured in a car accident with Ray Alexander in April, 2011. Unbeknownst to Lee, Alexander died the following month. Two years later, Lee filed a lawsuit against Alexander. After learning that Alexander was deceased, Lee withdrew his lawsuit by taking a voluntary “nonsuit”. Lee subsequently refiled the lawsuit against both Alexander and the “Estate of Ray Alexander”. No one was appointed to serve as an Administrator of Alexander’s Estate until August, 2016 when Lee’s attorney arranged for an employee from his law firm to serve as the Administrator. Judge Johnson found that the lawsuit was a “nullity”, and that the statute of limitations had expired as to any new lawsuit being filed against the actual person serving as the Administrator of Alexander’s Estate. Virginia law states that “[a]ll suits and actions must be prosecuted by and against living parties, in either an individual or representative capacity. The dead have passed beyond the jurisdiction of the court, and no decree or judgment of the court could be enforced against them personally. There must be such parties to the record as can...
