EDI Update
As you may know, the Virginia Workers’ Compensation Commission is currently advancing its technological capabilities to streamline its claims administration and handling. Through EDI, or electronic data interchange, the Commission will be able to process claims information electronically from insurance companies, self-insured and self-administered employers, and third party administrators.
The Commission also issued proposed regulations on EDI that not only dealt with the electronic processing of claims information, but aimed to potentially change claims administration in a variety of ways – most notably, in the area of entering awards on behalf of injured workers in “non-disputed cases.” Understandably, these regulations met with some concern from the business and insurance industry.
A selection of representatives from the business and insurance industry, including Ralph Whitt and Mike Del Bueno, recently met with the Commission to discuss EDI and the proposed regulations. The meeting was a chance to learn and share information, express thoughts and ideas, and talk about the directions in which this new venture may be taking the workers’ compensation industry in Virginia.
Whitt and Del Bueno have now learned that the Commission has decided to withdraw the proposed regulations regarding the entering of awards in “non-disputed cases.” The Commission is still going forward, as previously planned, with its EDI initiative and the phased implementation of EDI injury reporting that is scheduled to begin in October of 2008.
For more information about EDI and how it may affect your claims handling and administration, you may want to look at the Virginia Workers’ Compensation Commission’s website at www.vwc.state.va.us.
A Change At The Commission
As you may know, there are three Commissioners that constitute the full Virginia Workers’ Compensation Commission. Lawrence D. Tarr, who served as the employer and insurance carrier representative on the full Commission, retired earlier this year after many years of service in that capacity.
Effective May 1, Roger L. Williams took over the position vacated by former Commissioner Tarr. Commissioner Williams has numerous years of experience in private practice, especially in Virginia workers’ compensation law and the representation of employers and insurance carriers.
Whitt & Del Bueno looks forward to working with Commissioner Williams as we continue to represent our clients before the full Commission.
Whitt and Del Bueno Score Big Win at Virginia Court of Appeals
Ralph Whitt successfully obtained on December 18, 2007 a reversal by the Court of Appeals of Virginia from an award entered by the Virginia Workers’ Compensation Commission on behalf of the claimant in the case of Rose LaFleur v. Rivanna Water & Sewer Authority and Virginia Municipal Group Self-Insurance Programs. The Commission, in a divided opinion, had previously awarded benefits to the claimant for injuries allegedly suffered from lightning that allegedly struck the water treatment plant where she worked. However, the Court of Appeals, in a unanimous opinion, determined that the Commission applied the wrong legal standard to the case, and reversed the Commission’s opinion.
The Court recognized that the legal standard to be applied in cases involving natural disasters, and specifically here, lightning strikes, is that the claimant must prove that the nature of the employment exposed her to a particular risk of injury by lightning not usually faced by a member of the general public. This burden of proof follows the “actual risk” test applied in Virginia, as opposed to the “increased risk” test, which is not applied in Virginia. The “increased risk” test is one of physics, and not law, whereby the analysis is simply whether the work conditions, such as height above the surrounding area, nearness to trees or other tall structures, and/or nearness to metallic objects or water, enhanced the probability of injury from lightning.
The Court stated that, although the Commission had specifically noted that Virginia follows the actual risk test, it erred by applying instead the increased risk test in two specific findings – one, that the physical characteristics of the water and sewer plant had a propensity to receive a lightning strike, and two, that the large amounts of water, pipes and metal at the plant created a special risk by the greater likelihood of conduction of electrical current (this was merely a restatement of its “propensity” finding). In short, the Commission incorrectly focused upon the physical aspects of the plant, itself. That kind of analysis was the increased risk test, and not the actual risk test.
Furthermore, the Court went ahead and applied the actual risk test to the evidence in the case and found that it fell short of establishing the causal link needed for the claimant to prevail. The Court was troubled by the fact that only one system of pipes at the plant was made of metal, and that system of pipes carried wastewater away from, and not into, the plant, and the claimant was not nearby to those metal pipes at the time of her alleged injury. The Court expressed additional concern with the claimant’s inability to state with any specificity whether she was touching a faucet (or, if not, how far away she was from the faucet) and, whether water was actually flowing from the faucet at the time of her alleged injury. Finally, lightning had not struck the plant in forty years before this alleged occurrence, so the claimant could not establish that lightning was either a continual or frequent exposure hazard at the plant.
Mike Del Bueno Presenting Lorman Seminar
Mike will be a featured lecturer at a seminar presented by Lorman Education Services that is scheduled for July 31, 2007 in Richmond. The seminar is an all-day presentation focusing on various areas of workers’ compensation in Virginia. If you are interested in attending the seminar, contact Mike by phone at (804) 864-9660 or by email.
Brandon R. Jordan Joins Whitt & Del Bueno
Whitt & Del Bueno welcomes the addition of attorney Brandon R. Jordan to our firm. Brandon is a 2005 graduate of the T.C. Williams School of Law at the University of Richmond, where he received a number of scholastic accolades. For more information about Brandon and his credentials, click here.