JLARC recommends improvements to workers’ comp system

Virginia is only state that doesn't compensate workers for cumulative trauma injuries, study finds

Published December 16, 2019 by Sydney Lake

Virginia should pursue improvements to its existing workers’ compensation system program before considering an alternative program, the Joint Legislative Audit & Review Commission recommended in a study released Monday.

In December 2018, JLARC directed its staff to conduct a review of Virginia’s worker’s compensation system. The report issued nine major findings regarding compensation claims, fraud and abuse measurements and Virginia’s disease presumptions.

One major finding in the report is that Virginia is the only state where employers are not obligated to compensate workers for work-related cumulative trauma injuries — such as injuries received lifting boxes over several weeks. To match the requirements of other states, the General Assembly may want to consider these types of work traumas as compensable under the Virginia Workers’ Compensation Act, JLARC recommended.

In addition, the study found that Virginia employers pay comparatively high medical costs for claims because Virginia’s fees are based on fees charged by providers, not the cost to provide services. As a result, JLARC recommends that the General Assembly may want to consider directing the Virginia Workers’ Compensation Commission (VWC) to include these medical costs in its biennial reviews.

And though the study found that VWC generally handles workers compensation claims in a timely manner, it also stated that workers seeking to make a claim are sometimes confused about how to access and navigate the VWC system. Information is not well-organized, unclear and incomplete on VWC’s website, the report says.

As an action item, JLARC recommends that an ombudsman’s office be created to inform workers and employers about the system and that VWC should notify workers about the need to file a claim. All written materials for informing workers should also be reviewed and revised, and a comprehensive guide should be created.

Many of the JLARC findings were connected to presumptions—causal connections between an occupation and a disease. The JLARC study found that the requirements to establish cancer presumptions are “unreasonably burdensome” and not supported by science.

JLARC cited research from Johns Hopkins University to demonstrate that firefighters have an unreasonable burden of proof to establish that carcinogens they’re exposed to have caused a particular cancer. Virginia requires that firefighters must have 12 years of service before filing a claim of work-related cancer but Johns Hopkins found that fewer than 12 years of exposure can still increase a firefighter’s cancer risk.

JLARC recommends that the cancer presumption be changed to allow firefighters to meet the toxic exposure requirement through evidence that they responded to fires rather than relying on years of service and lower the years of service requirement.

Although cancer cases are challenging for employers to rebut, the study found, cardiovascular disease presumption is not as difficult for employers to rebut. The study found that 23% of cardiovascular cases brought to the VWC between 2009 and 2018 were won by employers.

The risk of cardiovascular disease increases with years of service, the study found, and therefore JLARC recommends that a minimum service years requirement should be instituted to ensure that employers and insurers don’t pay for non-work-related diseases.

Benefits provided through the workers’ compensation system include medical care, wage replacement (66.67% of average weekly wage) and death benefits. Employers with three or more employees must purchase workers’ compensation insurance. Workers can dispute an insurer’s denial of claims to the VWC.