The Impact of Recent Supreme Court Decision on the Statute of Limitations
On September 14, 2012, the Supreme Court of Virginia affirmed a decision by the Court of Appeals in Prince William County School Board v. Rahim that held that when an employer provides light duty employment to an injured worker at or above the worker’s average weekly wage, those wages are considered “compensation” paid pursuant to an award under Code § 654.2-708( C ), even though, of course, in actuality, there really is no true award of compensation because there is no wage loss. This “legal fiction” of calling wages “compensation” goes on for up to 24 months under section 708( C ). This has the effect of extending the running of the statute of limitations for the filing of claims for additional compensation (i.e., change in condition claims) because the limitation period in this situation begins to run from the date compensation was last paid and not from the date of accident. None of this is new, and this part is consistent with existing case law.
Independent ThinkingAn employee that is injured on the job may be entitled to workers’ compensation benefits in Virginia. However, an independent contractor injured on the job is not entitled to workers’ compensation benefits in Virginia. How do you know if someone is an employee or an independent contractor? Our firm recently handled a case that provides illustration on this issue.
Court of Appeals Reverses Itself in Hively: Claimant Not Entitled to Any TPD under Favinger
I wrote to you earlier this year (“Seven Cases Worth Knowing About”) regarding the case of Ross & Sons Utility v. Hively, an unpublished opinion in which the Court of Appeals found that the claimant had not marketed the extra hours his regular employment involved, but instead of holding that the claimant was not entitled to any temporary partial disability benefits under the Supreme Court decision in Ford Motor Co. v. Favinger, the Court of Appeals remanded the case to the Commission to calculate how much in compensation the claimant was entitled to under the circumstances. The employer requested that the panel of the Court of Appeals reconsider, and it did, reversing itself as to the remedy only and affirming the principle in Favinger that if a claimant fails to fully market his wages or his hours, he is not entitled to any compensation benefits during the period of refusal. This is a welcome sign that the Court of Appeals still recognizes what Favinger means, although it may have to be reminded from time to time.
Commission’s Advice to Adjusters at VSIA Conference
At the Virginia Self-Insured Association conference recently, Commissioner Williams gave some advice to workers’ compensation claims adjusters that bears your consideration:
Seven Recent Decisions Worth Knowing
Several decisions have come down from the Commission and the Court of Appeals that are probably worthwhile for claims adjusters and risk management personnel to know about. The marketing issue has received a lot of attention with favorable decisions by the Supreme Court in Ford Motor Co. v. Favinger and the Court of Appeals applying Favinger in cases our firm handled: Smith v. James City County and CVS v. Plunkett. Two decisions from the Court of Appeals in March of 2011, however, one upholding the Favinger line of cases and one diverging from that decision, are worth noting. In Chaney v. Honeywell, the Court of Appeals found that the facts of that case were virtually identical to Favinger where the claimant worked a 40-hour light duty job but not his regular overtime hours and failed to market the shortfall in hours and thus, was not entitled to any compensation. A few weeks later, the Court of Appeals decided Ross & Sons Utility v. Hively, where the claimant normally worked 45-50 hours a week but found light duty on his own at 34 hours a week at a lower hourly rate as well. He did not market to find additional work or hours elsewhere. The Court relied on Favinger, but in a strange twist, instead of denying the claim for compensation outright, it fashioned a new remedy by remanding the case back to the Commission for calculation of the claimant’s TPD benefits based on the difference between claimant’s post-injury average weekly wage and what his pre-injury average weekly wage would have been had he only worked 34 hours per week. This remedy does not appear consistent with Favinger or the other published Court of Appeals decisions on marketing, so its impact remains to be seen.