Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Beginning July 1, 2020, the Virginia Workers’ Compensation Commission will begin enforcing a new law that will affect how Virginia employers and their workers’ compensation insurance carriers respond to initial claims for benefits filed by an injured worker.
The new law, which can be found at Virginia Code § 65.2-601.2, applies to an initial claim for benefits filed by an injured worker pursuant to Virginia Code § 65.2-601.1 Once an initial claim for benefits has been filed, an employer will have 30 days following the receipt of an order from the Virginia Workers’ Compensation Commission to respond to the claim.2 In its response, the employer must state whether it:
- intends to accept the claim;
- intends to deny the claim; or
- is unable to determine whether it intends to accept or deny the claim because the employer lacks sufficient information from the employee or a third party to make such determination.
The law requires that an employer elaborate on its response if it intends to deny the claim or if it cannot yet determine whether to accept or deny the claim. An employer must provide reasons for the denial if it states that it intends to deny the claim. Likewise, if the employer states that it is unable to determine whether to accept or deny the claim, it must identify the additional information that is needed from the employee or a third party in order to make such a determination.
An employer must send a copy of its response to the injured worker. Employers are not bound by their stated response, however, as the new law specifically provides that such responses “shall not be considered part of the hearing record.” In other words, the employer’s response should not be able to be used as evidence at a hearing, and an employer can change its stated position if, for example, its investigation uncovers facts showing that a claim that had initially been accepted should have been denied, so long as an award has not been entered.
An employer’s failure to file a timely response may result in the assessment of a $500 civil penalty for each failure. This penalty can reach up to $5,000 if such failure is determined to be willful.
Virginia employers and insurance carriers that provide claims administration services for workers’ compensation claims will need to familiarize themselves with the requirements of this new law to make sure they can promptly respond to initial claims for benefits filed by an injured worker. Should an employer or third-party claims administrator have any questions about this new law or questions concerning the workers’ compensation system in Virginia, they should contact knowledgeable counsel to address their concerns.
1 An injured worker can file a variety of claims under the Virginia Workers’ Compensation Act, including an initial claim for benefits pursuant to Virginia Code § 65.2-601, a subsequent claim for benefits (commonly referred to as a “change in condition” claim) pursuant to Virginia Code § 65.2-708, or claims related to medical services under Virginia Code §§ 65.2-603 or 65.2-605.1. This new law applies only to claims filed pursuant to Virginia Code § 65.2-601.
2 Although Virginia Code § 65.2-601.2 places the obligation on the “employer” to respond, an employer’s third-party claims administrator or defense counsel should be able to respond on the employer’s behalf as well. Such an interpretation is consistent with Commission practice. For example, Commission Rule 1.5 requires an “employer” to advise the Commission whether a claim has been accepted or denied. Yet the Commission routinely accepts these responses (which are commonly referred to as “20 Day Order Responses”) when they are provided by a claims administrator or defense counsel.