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Still More Turkey: Two Recent “Oooops” Cases Decided by the Virginia Workers’ Compensation Commission.

Assuming everyone is recovered from Thanksgiving, but now headed into the holidays, it seemed appropriate to provide a little light fare in this space.  For your consideration, two freshly baked Virginia Comp. opinions:

Whenever I am even CLOSE to a deadline, I put a backside in a car if I have to, in order to make sure I have physical delivery of whatever has to get wherever it has to go, on time.  Southard v. JB Hunt Transport Services, Inc., JCN VA00001407097 (Oct. 26, 2018) explains why.  In that case, an Opinion was issued August 20, 2018.  The Commission’s Rules require a Request for Review to be filed within 30 days of the Opinion to be reviewed.  Many, many, many cases note that this 30 day period is jurisdictional – the Commission can’t review an Opinion if the Request for Review is not filed within 30 days even if it wants to (the Opinion even cites on such a case where the request was 1 day late).  A Request for Review was filed September 27, 2018.  That is more than 30 days after August 20, 2018.  Cue sad trombones:

Since the present Request for Review was not filed within the 30-day appeal period, the Deputy Commissioner’s August 20, 2018 Opinion is now final and we have no jurisdiction to consider the claimant’s September 27, 2018 Review request. The October 4, 2018 Motion to Dismiss is granted and this case is removed from the Review Docket.

(Id. at 2.)  I will refrain from putting a string cite here to show that the Commission (and courts) really, really, really, really mean it when they set deadlines for “filing.”  Just keep that fact in mind.  Only “no days late” is acceptable.

The second case I wanted to talk about here, James v. Wegman’s Food Markets, Inc., JCN VA00001272444 (Oct. 29, 2018) involves what is called a de facto award.  “A de facto award is a legal fiction crafted by the courts, ‘a creature of case law not statutory law.'” Lysable Transp., Inc. v. Patton, 57 Va. App. 408, 414, 702 S.E.2d 596, 598 (2010) (quoting Ryan’s Family Steak Houses v. Gowan, 32 Va. App. 459, 465, 528 S.E.2d 720, 723 (2000) (Bumgardner, J., concurring)) (although, at least one case has found that de facto awards can be justified in the Va. Code § 65.2-701 requirement for filing agreement forms, see Ryan’s Family Steak Houses, supra, 32 Va. App. at 463, 528 S.E.2d at 722).  De facto awards generally arise when an employer voluntarily makes payments of what amount to workers’ compensation benefits after an accident and injury where there is no award (and almost as a rule, not even the filing of a claim) by the claimant.  “[T]he concept of a de facto award is grounded in the well-established principle of estoppel” and “[e]stoppel by conduct, whereby a party will not be heard to deny that which he has induced others to rely upon as true, extends without limit throughout the law.”   Roske v. Culbertson Co., 62 Va. App. 512, 522, 749 S.E.2d 550, 555 (Va. Ct. App. 2013).  In other words, if an employer pays benefits in the absence of the filing of a claim, and by doing so prevents claimant from filing a claim, an award is presumed by law.  However, the claimant must first show reliance on some representation of the employer, and then some disadvantage resulting from that reliance: “the de facto award doctrine does not ‘apply where an employee has neither suffered prejudice nor been placed in a more disadvantageous position as a result of the absence of an actual award.’”  (Id. at 523, 556).

In James v. Wegman’s, the Claimant was injured November 21, 2016 and filed a Claim on June 15, 2017, well within the statute of limitations.  The employer voluntarily paid benefits from November 22, 2016 through May 13, 2017.  Claimant’s claim alleged, in part, a de facto award based on voluntary payments, and the employer defended on various grounds unrelated to compensability of the underlying claim, but instead to things such as termination for cause, failure to market, refusal of treatment, etc.  The deputy essentially brushed aside most of employer’s defenses by finding a de facto award, and awarding benefits up to the point of medical refusal.  Both parties requested review, and the Commission substantially affirmed, changing only the date of termination of the award based on termination for cause, rather than medical refusal.

Regarding de facto award, the Commission in James v. Wegman’s appears to rely on prior caselaw to substantially simplify the issue: “Where the employer has made payments to the claimant for some significant period of time without filing a memorandum of agreement, and the compensability of the injury is uncontested, it is ‘reasonable to infer that the parties have reached an agreement as to the payment of compensation,’ and a de facto award will be recognized.’”  (Id. at 4, citations omitted.)  The word “detriment” does not appear in the Opinion.  The word “estoppel” does not appear in the Opinion.  The Opinion does not discuss any “reliance” by claimant on the payments by the employer.  Other cases have held that “[m]aking voluntary payments, by itself, falls far short of satisfying the preconditions of the de facto award doctrine.”  Lysable, supra, 57 Va. App. at 415, 702 S.E.2d at 599 (quoted in Roske, supra, 62 Va. App. at 524, 749 S.E.2d at 556).  In fact, Roske, supra, 62 Va. App. at 524, 749 S.E.2d at 556 notes that “[t]o hold otherwise would be to create a windfall for claimants… who, by being voluntarily paid disability payments, are no worse off than if the payments had not been made.”  This is particularly true where a claimant is within the statute of limitations.

The ”oooops” here came in the payment of benefits without submitting agreement forms.  This is a species of a larger problem we see, where clients sometimes skip or postpone investigation at their peril, for instance, we frequently see claims accepted for failure to obtain medical records, resulting in the “purchase” by the employer of a pre existing condition.  Regardless, I often tell my clients some variant of “investigate now, agree later.”  Even if claimant hadn’t signed agreement forms, sending them might have prevented a de facto award here.  (See Kelley v. Monticello Area Cmty. Action Agency, Record No. 1083-16-3, 2016 Va. App. LEXIS 342 (Va. Ct. App., Dec. 13, 2016).)  I also suspect that this case is an expansion of the de facto award doctrine, in that there is no reliance or detriment so far as I can see.  We might see an appeal here.  If not, hopefully we see earlier agreement forms in a lot of cases.