Explanation of the Workers’ Compensation Commission’s Opinions in Burroughs v. Fresenius Medical Care and Thomason v. City of Portsmouth
The Virginia Workers’ Compensation Commission published two judicial opinions today (each dated December 31, 2024).
The first opinion, Burroughs v. Fresenius Medical Care Holdings Inc., JCN VA00000904953, shows what happens when a claim administrator fails to follow the Virginia Workers’ Compensation Commission’s Rules and timely file an application to termination or suspend an award order. Statutes of limitations (deadlines) apply to employers and insurers, too.
In Burroughs, the injured employee suffered a right shoulder injury and a lumbar (lower back) sprain in March 2014. He returned to work about one month later, in April 2014, at a pay rate greater than or equal to his pre-injury average weekly wage.
The claim administrator sent an Agreement to Pay Benefits and a Termination of Wage Loss Award to the claimant, who signed and returned only the Agreement to Pay Benefits. Then, the claim administrator submitted both forms to the Commission.
The Commission entered an open (ongoing) award for temporary total disability (TTD) benefits. However, it did not enter a Notification of Terminated Award because the claimant had not signed the form.
Years later, in October 2023, the Commission issued a Notification of Terminated Award letter to the claimant and the claim administrator, stating the claimant had received 500 weeks of wage loss benefits. In addition, the Commission entered a Variance Notification in January 2024, saying the claim administrator reported paying $3,388.40; however, $338,820 was due under the TTD award.
These letters prompted the claim administrator to move the Commission to retroactively terminate the award of benefits as of April 14, 2014.
The Commission denied this motion, pointing to Rule 1.4 of the Rules of the Virginia Workers’ Compensation Commission. It held that under its rules and the Court of Appeals of Virginia holding in Diaz v. Wilderness Resort Ass’n, 56 Va. App. 104, 118 (2010), a defendant’s application to stop benefits cannot be docketed for a hearing unless the defendants paid compensation through a date no less than two years before the date on which the defendants file an employer’s application.
In addition, the Commission explained the de facto award doctrine, a principle protecting claimants, does not protect employers and insurers.
Takeaway: Obtaining a workers’ comp award letter is critical for injured employees because it gives you rights that the employer and insurer cannot take away unilaterally. Having an award for wage loss payments shifts the burden of proof to the employer and insurer to show why the award should stop.
The second opinion, Thomason v. City of Portsmouth, JCN 1000428, addressed claims for recommended surgery and modifying the claimant’s home with a walk-in bathtub.
The Commission held that the claimant failed to sustain his burden of proving the recommended surgery was related to the original work injury. It found that the claimant’s treating physician did not correlate the proposed surgery to the work-related injury, and this deficiency in the evidence, combined with the opinion from Dr. Felix Kirven that the claimant’s current condition was unrelated to the occupational accident, meant the claim for surgery must be denied.
However, based on a nurse practitioner’s letter and other evidence, the Commission agreed that the claimant proved a walk-in tub was reasonable, necessary, and related to the occupational accident.
Takeaway: Injured employees must obtain opinion letters on causation from their treating physician to give themselves the best chance of winning at trial. In addition, vehicle and home modifications are available lifetime medical benefits to improve your quality of life after an occupational injury.
