It’s oddly satisfying when a state agency basically orders you to do what you’re already doing. Helping in that regard, the Virginia Legislature recently passed a statute essentially directing Worker’s Compensation defendants to do what they’ve already been doing. All that has really happened here is that the legislature took the fully functioning system under Commission Rule 1.5 and got involved for no apparent reason. If it ain’t broken, keep fixing it.

Current practice before the Commission has the Commission issuing a “20-Day Order” form when new claims (not change in condition claims) are filed – creatively named because of the amount of the 20-day time period given to respond:

Note that this existing form includes the request for a “Reason” and a “Date this form was sent to Commission with copy to the injured worker/injured worker’s attorney.” A 20-Day Order response was already considered a required report, the Commission had previously awarded sanctions for failure to timely respond and/or investigate, and had previously referred matters to the docket for lack of a timely response. See Rules of the Virginia Workers’ Compensation Commission Rule 1.5(B)(1); Tucker v. Care Tree Services LLC et. al, JCN VA00000989639, 2020 VA Wrk. Comp. LEXIS 10, *9 (Va. Workers’ Comp. Comm’n, January 09, 2020).

As a general rule, either a claim filed is reasonable and the facts are known, or either of those is not true. If the claim filed is reasonable and the facts are known, either agreement forms will have been sent already, or they will be prepared and sent in response to the 20-Day Order (although there may be some discussion about average weekly wage that might alter things), in which case one of the first two boxes will be checked and life goes on. More often than not however, the claim is an apparent effort to make a wish-list of dubious or pre-existing conditions compensable, or to “pull a fast one” and slide an unreported, false, or non-compensable “accident” by. In those situations, the third box is checked and, as requested by the form, a “Reason” is added. Checking this box for any reason generally gets the claim sent to the hearing docket.

Beginning July 1, 2020 the relatively recent Virginia Code § 65.2-601.2 comes into effect:

§ 65.2-601.2. Notice to employee of employer's intent.

A. Whenever an employee makes a claim pursuant to § 65.2-601, the Commission shall order the employer [defense] to advise the employee [claimant], within 30 days following the date of such order, whether the employer [defense] (i) intends to accept the claim, (ii) intends to deny the claim, or (iii) is unable to determine whether it intends to accept or deny the claim because the employer lacks sufficient information from the employee [claimant] or a third party to make such determination. If the employer [defense] responds that it intends to deny the claim, the response shall provide reasons therefor. If the employer [defense] responds that it is unable to determine whether it intends to accept or deny the claim because it lacks sufficient information from the employee [claimant] or a third party to make such determination, the response shall identify the additional information that the employer [defense] needs from the employee [claimant] or a third party in order to make such determination.

B. The employer's [defense’s] response to the order shall be considered a required report for the purposes of § 65.2-902.

C. The employer's [defense’s] response to the order shall not be considered part of the hearing record.

D. An employer may, if the employee [claimant] consents, send any response required by this section to the employee [claimant] by email.

I’m betting the resulting form gets called a “30-Day Order.”

The only significant substantive changes (other than ten extra days) are that the statute now explicitly requires “the employer [defense] to advise the employee [claimant]" by sending a copy of the response to the claimant (which generally was already done, but also arguably implicates issues of contacting a represented party), and that defendants can now respond to an “XX-Day Order” by email to the claimant if the claimant consents. I don’t know why email matters, or why anyone would necessarily want to do that, except perhaps that the send date of an email should be clear (regardless, a webfile date is clear, and the requirement is not for a date received by claimant, but for a date sent). As with present procedures under Rules of the Virginia Workers’ Compensation Commission Rule 1.5(B)(2), any response “shall not be considered part of the hearing record,” which means the defense can get the information it wants and resolve the claim, not get the information it wants and settle or try the claim, get the information it wants and (assuming argument for a substantial defense) settle or try the claim – basically nothing about an “XX-Day Order” changes in this regard, and defendants are more or less free to respond in any reasonable way they want initially and change their minds in any reasonable way they want later. You can even conceivably respond regarding investigation for one purpose, and end up investigating for another.

Otherwise, the response options under this statute are substantially similar to those under a 20-Day Order – accept the claim, deny the claim and specify why, or investigate and specify why. I’m not clear why deny and investigate are separate options, as the previous version simply stating that there was no agreement and specifying why accomplishes the same purpose. Arguably, the specific requirement to identify what information is sought in investigation is new, but every defense attorney I know already did that to greater or lesser degree.

If you didn’t comply with a 20-Day Order, you could have been sanctioned. Now, if you don’t comply with a 30-Day Order, you can STILL be sanctioned. Under Va. Code § 65.2-902 the Commission “shall” assess a penalty “of not more than $500,” or for a “willful” failure, “a civil penalty of not less than $500 and not more than $5,000.” While I make light of the meaningless change to the law, it is always advisable to comply with an Order from a state entity or agency. If the Commission tells you to advise your position on a claim, do that. If they give you a deadline, follow it, or be prepared to explain why you didn’t. Try to avoid sitting on a 30-Day Order for 29 days and then sending it to your counsel with no explanation – we’ll deal with it when you do, but try to avoid it.

In sum, when employers and administrators are advised of a new claim after July 1, 2020 they will be given 30 days (not 20) to accept the claim or to deny it and explain why or seek time to investigate and explain what they are looking for. Failure to do so can result in fines, and those fines can range from $0 to $5,000. When a response is sent, that response should be mailed to the claimant’s counsel unless they are webfile paperless, and to the claimant, at the same time that response is filed with the Commission. Failure to respond or to comply with the deadlines or to send the response to claimant, claimant’s counsel, or the Commission may result in essentially a “show-cause” or “pre-contempt” Order, and, ultimately, fines.

If you have any questions the first few times you see one of these new forms, let us know. For more information, contact Dov Szego (dszego@setlifflaw.com) at 804-377-1263 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.