THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Monday, March 18, 1996 TAG: 9603160263
SECTION: BUSINESS WEEKLY PAGE: 04 EDITION: FINAL
TYPE: FORUM
SOURCE: BY SAMUEL W. MEEKINS JR.
LENGTH: Long : 144 lines
Since the 1940's, Virginia Workers' Compensation statutes have required that employers compensate employees for two specific types of workplace disabilities: injuries by accident and occupational diseases.
To be deemed an injury by accident, the employee bore the burden of demonstrating that an incident arose out of and in the course of employment, resulting in a sudden mechanical change in the body. To be compensable as a disease, an employee demonstrated that he or she suffered from a disease and the disease had its origins in the employment.
All of that may be about to change and businesses throughout Virginia should take heed.
Employees' attorneys have argued for years that there is a classification of workplace disability which should be included within the Workers' Compensation Act but which by pure statutory definition does not fit.
These types of workplace disabilities do not qualify as an injury by accident. On the other hand, because these disabilities are ``syndromes,'' ``tears,'' or ``reflexes,'' they do not appear to satisfy the requirements of a disease for occupational disease purposes.
Labeling it disease
While the Virginia General Assembly has resisted expanding the Workers' Compensation Act liabilities to include those disabilities, the courts have been dealing with the issue on a case by case basis.
Claimant's attorneys, in an effort to bring repetitive use disabilities within the umbrella of the Workers' Compensation Act, have met with some success by having the treating physician characterize the underlying process as a ``disease''.
If that ``disease'' could then be linked to having its origins in the employment the ``disease'' would be deemed compensable.
The Workers' Compensation Commission has routinely issued decisions supporting employees in instances where the disability was called a disease by the treating physician and those decisions have been routinely upheld when the employers have appealed the cases to the Virginia Court of Appeals.
At the same time, employee groups have annually introduced legislation aimed at amending the workers' compensation statute to allow inclusion for workers' compensation statute to allow inclusion for workers' compensation purposes of disabilities arising from repetitive use.
Typically that legislation has not made its way through the General Assembly, but last year a bill making carpal tunnel syndrome presumptively a disease got to Gov. George F. Allen's desk.
He vetoed the bill, indicating the proposed legislation would deter new businesses from locating in Virginia by dramatically increasing workers compensation costs.
High court stands firm
Relatively few cases have made their way to the Virginia Supreme Court. It repeatedly has rejected the attempts of the Worker's Compensation Commission and the Court of Appeals to liberalize the workers' compensation statures.
In 1994, the Supreme Court issued a ruling that many thought clarified for all time the fact that the statutory law of Virginia does not make compensable repetitive use disabilities.
Nonetheless, the Workers' Compensation Commission and the Court of Appeals continued to issue rulings which appeared to make repetitive use disabilities compensable as diseases notwithstanding the Supreme Court precedent.
The Supreme Court on March 1 once again sought to clarify the law in Virginia regarding repetitive use disabilities and this time spoke in no uncertain terms. In a strongly worded opinion, Chief Justice Harry L. Carrico wrote:
We thought that we had made it plain in Holly Farms and Merrillat that any definition of the words `injury' and `disease' that is so broad as to encompass any bodily ailment of whatever origin is too broad....
If there lingers any doubt about this Court's holding in Merrillat, we now remove the doubt by saying that job related impairments resulting from cumulative trauma caused by repetitive motion, however labeled or however defined, are, as a matter of law, not compensable under the present provisions of the Worker's Compensation Act.
Immediately, the labor forces in Virginia took action to overturn the Supreme Court decision by legislation.
Legislative maneuvers
In a rare legislative maneuver in the last day of the General Assembly, a bill was introduced that would have made all repetitive use injuries compensable under the Worker's Compensation Act.
That bill, too extreme to have any opportunity of passage, was replaced by a bill making hearing loss and carpal tunnel syndrome ``presumptively diseases.''
Due to the excellent efforts of members of Virginia Beach's legislative delegation, including Glenn Croshaw and Bob Purkey, the substitute bill has been referred for study and will not become law this year. The matter truly deserves study as it could make a staggering difference in insurance and compensability rates for state employers.
Is the matter settled for the time being? Not really.
The last word is that the employee attorneys intend to mount a battle on a different front.
Sue employers directly
They have indicated an intent to file suits directly against employers claiming employer negligence in instances in which the employees develop repetitive use disabilities arising out of their employment.
Under workers compensation law, the employee is not allowed to sue the employer but is instead required to accept the benefits of the Workers' Compensation Act.
The employees' attorneys reason that since the Supreme Court has said repetitive use disabilities are not covered by the Act, then the bar of the Workers' Compensation Act for directly suing employers would not be applicable and, therefore, they intend to litigate this issue across the state.
Whether the employees will institute this litigation and whether the litigation will be successful remains to be seen. But Virginia businesses need to take steps to protect their interests.
First, they need to contact their workers compensation insurance provider to be sure that these repetitive use disabilities, if they arise, are being addressed promptly and fairly so as not to create an environment where an employee is likely to institute a civil suit against the employer out of anger from mistreatment.
Second, the employer should consult his liability insurance providers to be sure that if such a suit were brought outside of the Workers' Compensation Act there is insurance coverage in place which would allow for defense of the suit and payment of the judgment if one were to be obtained.
Third, over the next few months the business community needs to come to some consensus regarding dealing with these types of claims on a permanent basis. Is it prudent or appropriate to try to hold the line on non-compensability or might that result in worse legislation than what could be negotiate?
There are a number of defenses to these direct employer suits, but the fallout from litigation can be expensive in terms of time spent in litigation preparation, stresses between various insurance providers who may be trying to force the coverage onto other insurance companies, relations with employees which could be strained by litigation and, of course, the drain of litigation expense and potential loss.
No doubt, the primary purpose behind the threatened litigation is to force employers and the General Assembly to legislatively deal with repetitive use disabilities.
But the issue is not as clean as it might at first appear and deserves thorough analysis before legislation is attempted. What the business community does not need is a whiplash reaction that could cost dollars and jobs across Virginia. [Virginia Beach attorney Samuel W. Meekins Jr. is executive secretary of the Virginia Self-Insurers Association.] MEMO: EDITOR'S NOTE
There may be a new move afoot to bring for the first time carpal tunnel
syndrom and similar workplace maladies under the scope of the Virginia
Workers Compensation Act.
by CNB