The 2017 General Assembly considered numerous risk management related bills of interest to VML Insurance Programs (VMLIP) members. We continue to see perennial attempts to expand the workers’ compensation presumptions for public safety.
New this year, but of no surprise, were attempts to extend Line of Duty Act (LODA) benefits to new classes of public safety employees/volunteers, as well as to increase the benefits.
Passed Bills
- HB 1659 (Habeeb)/ SB 1175 (Chafin) Workers’ compensation; employer’s lien; third party actions. Workers’ compensation; employer’s lien; third party actions. Any arbitration held by the employer in the exercise of such right of subrogation (i) shall be limited solely to arbitrating the amount and validity of the employer’s lien, (ii) shall not affect the employee’s rights in any way, and (iii) shall not be held unless: (1) Prior to the commencement of such arbitration the employer has provided the injured employee and his attorney, if any, with an itemization of the expenses associated with the lien that is the subject of the arbitration; (2) Upon receipt of the itemization of the lien, the employee shall have 21 days to provide a written objection to any expenses included in the lien to the employer, and if the employee does not do so any objections to the lien to be arbitrated shall be deemed waived; (3) The employer shall have 14 days after receipt of the written objection to notify the employee of any contested expenses that the employer does not agree to remove from the lien, and if the employer does not do so any itemized expense objected to by the employee shall be deemed withdrawn and not included in the arbitration; and (4) Any contested expenses remaining shall have been submitted to the Commission for a determination of their validity and the Commission has made such determination of validity prior to the commencement of the arbitration.
VMLIP Comment: Introduced this year at the request of the Virginia Trial Lawyers Association (VTLA) in response to the Court of Appeals decision in Williams v. Capital Hospice Companion Property and Casualty Insurance Company (March, 2016). After initial insurer opposition, the VTLA re-drafted both bills and provided numerous examples of previously claimed employer liens that included expenses improperly claimed under such liens (statutory law currently specifies the types of expenses that can be claimed under an employer’s lien). When legislators became aware of those examples and looked at the VTLA’s proposed revisions to the bills, it quickly became obvious that both bills were going to pass in their amended form.
- HB 2350 (Minchew) Unmanned aircraft system; use of system to trespass. Punishes as a Class 1 misdemeanor the use of an unmanned aircraft system to trespass upon the property of another for the purpose of secretly or furtively peeping, spying, or attempting to peep or spy into a dwelling or occupied building located on such property.
VMLIP Comment: Unfortunately this was not a bill we could amend to give localities permissive use for inspections, etc.
- HB 2319 (Miyares) National Flood Insurance Program; participation by localities; report. National Flood Insurance Program; participation by localities; report. Requires localities any part of whose occupied land is located in a floodplain as depicted on a current Federal Emergency Management Agency Flood Boundary Rate Map or Flood Insurance Rate Map to comply with the National Flood Insurance Program (NFIP) (42 U.S.C. § 4001 et seq.). The bill requires the Secretary of Natural Resources to issue an annual report no later than November 1 listing any affected locality that is not in compliance with the NFIP and recommending any legislation necessary to ensure compliance. The bill also requires the Secretary of Natural Resources to issue a report by November 1, 2018, listing any locality not participating in the Community Rating System of the NFIP and recommending any legislation necessary to encourage participation.
VMLIP Comment: Committee Substitute strikes requirement to comply and simply directs the Secretary to report to the General Assembly by Nov 1, 2018. The report shall list any affected locality that does not participate in the Community Rating System (CRS), determine the costs and benefits to localities of participation in the CRS, and recommend any legislation necessary to encourage participation.
This study is unnecessary as the Virginia Department of Conservation and Recreation website (http://www.dcr.virginia.gov/dam-safety-and-floodplains/fp-crs) describes the CRS program. Communities in CRS receive a rating based on the number of points they receive for eligible activities. A lower rating means a better program that reduces flood risk for citizens and their property. Lower ratings have higher NFIP policy discounts. The 22 localities currently participating in CRS include:
| Community | CRS Class | Policy Discount |
| Accomack County | 8 | 10% |
| Town of Chincoteague | 8 | 10% |
| Town of Wachapreague | 9 | 5% |
| City of Alexandria | 6 | 20% |
| Arlington County | 8 | 10% |
| City of Chesapeake | 8 | 10% |
| Fairfax County | 7 | 15% |
| Town of Vienna | 8 | 10% |
| City of Falls Church | 7 | 15% |
| Gloucester County | 7 | 15% |
| City of Hampton | 8 | 10% |
| James City County | 7 | 15% |
| City of Norfolk | 9 | 5% |
| Town of Cape Charles | 9 | 5% |
| City of Poquoson | 8 | 10% |
| City of Portsmouth | 9 | 5% |
| Prince William County | 8 | 10% |
| City of Richmond | 8 | 10% |
| City of Roanoke | 7 | 15% |
| Roanoke County | 8 | 10% |
| Town of Bridgewater | 8 | 10% |
| Stafford County | 8 | 10% |
| York County | 8 | 10% |
- SB 1118 (McPike) Line of Duty Act; Act includes firefighter trainees. Line of Duty Act; firefighter trainees. Includes a person with a recognized membership status with a fire company or department who is enrolled in a Fire Service Training course offered by the Virginia Department of Fire Programs or required to become a certified firefighter under the Line of Duty Act.
VMLIP Comment: We perceive this as an unnecessary bill, since a person with recognized membership status with a fire company or department is already covered under LODA.
- SB 1201 (Lewis) Workers’ compensation; modifications to employee’s home and automobile. Workers’ compensation; suitably equipped automobile. Authorizes the Workers’ Compensation Commission to require an employer to provide funds for the purchase of a suitably equipped automobile for an incapacitated employee if it finds that it is medically necessary and that modifications to the employee’s automobile are not technically feasible or will cost more than the funds available for a replacement automobile. The total of the costs of the automobile and of any bedside lifts, adjustable beds, and modification of the employee’s principal home are limited to $42,000, which is the amount of the existing cap on expenses for modifications to the injured employee’s automobile and home.
VMLIP Comment: HB 2353 (Murphy) was the same bill, which was tabled in committee on a voice vote. The same committee passed the Senate version 21-0.
Failed Bills
- HB 1193 (Carr)/ SB 619 (Lucas) Line of Duty Act; probation and parole officers. Line of Duty Act; probation and parole officers. Expands the definition of a deceased person under the Line of Duty Act to include probation and parole officers whose death occurs as a direct or proximate result of the performance of their duty.
Status: Both bills were left in committee without action.
- HB 1416 (Helsel) Line of Duty Act; payments to beneficiaries. Line of Duty Act; payments to beneficiaries. Increases from $100,000 to $125,000 the sum payable out of the general fund to the beneficiary of a deceased law-enforcement officer or other person covered by the Line of Duty Act whose death occurred on or after January 1, 2006, while in the line of duty as the direct or proximate result of the performance of his duty.
Status: Subcommittee recommended laying on the table.
- HB 1722 (Anderson)/ SB 1119 (McPike) – Workers’ compensation; presumption of compensability for certain diseases. Workers’ compensation; presumption of compensability for certain diseases. Adds colorectal cancer to, and removes rectal cancer from, the list of cancers that are presumed to be an occupational disease compensable under the Virginia Workers’ Compensation Act if contracted by certain firefighters and certain other employees who have had contact with a toxic substance in the line of duty.
Status: Subcommittee recommended laying on the table (House bill) while the Senate bill died in committee on a 16-0 vote. This bill has been regularly introduced in recent years.
- HB 1803 (Bell) Workers’ compensation; disease presumptions; correctional officers. Workers’ compensation; disease presumptions; correctional officers. Adds correctional officers to the list of public safety employees who are entitled to a presumption that hypertension and heart disease and certain infectious diseases are occupational diseases compensable under the Virginia Workers’ Compensation Act.
Status: Subcommittee recommended laying on the table. This bill has been regularly introduced in recent years.
- HB 2155 (Rasoul) Workers’ compensation; modifications to employee’s home and automobile. Workers’ compensation; modifications to employee’s home and automobile. Increases from $42,000 to $50,000 the maximum aggregate cost of (i) bedside lifts, adjustable beds, and modifications and alterations to an injured employee’s principal home and (ii) modifications to or equipment for an injured employee’s automobile that the Workers’ Compensation Commission may award on account of any one accident.
Status: Tabled in House Commerce and Labor on a voice vote. Senate bill passed the Senate and at this writing passed the same house committee 21-0.
- HB 2353 (Murphy) Workers’ compensation; failure to make reports on employee’s inquiry, etc. Provides that an employer is guilty of a Class 2 misdemeanor if he knowingly and intentionally fails to comply with the requirement that he report an employee’s injury or death or dissuades or deters an employee from filing a claim for compensation under the Virginia Workers’ Compensation Act.
Status: Tabled in committee on a voice vote.
- SB 523 (McPike) Line of Duty Act; includes firefighters and emergency medical services trainees in Act. Includes persons enrolled in a Fire Service Training course offered by the Virginia Department of Fire Programs under the Line of Duty Act.
Status: Left in Finance.
- SB 1120 (McPike) Workers’ compensation; volunteer firemen and emergency medical services personnel. Workers’ compensation; volunteer firemen and emergency medical services personnel. Provides that for the purposes of the Virginia Workers’ Compensation Act volunteer firemen and emergency medical services personnel shall be deemed employees of the political subdivision or state institution of higher education in which the principal office of the volunteer fire company or volunteer emergency medical services agency is located. The measure repeals the existing provision that volunteer firemen and emergency medical services personnel shall be deemed the employees of the political subdivision or state institution of higher education if its governing body has adopted a resolution acknowledging those persons as employees. The measure also repeals the provision that volunteer firemen and emergency medical services personnel shall be deemed the employees of the volunteer fire company or volunteer emergency medical services agency if the company or agency elects to be included and maintains coverage as an employer under the Act.
VMLIP Comment: This would require that local governments cover all volunteer fire fighters for WC – optional now and few choose to do so. The “payroll’ basis is $3,600, which yields insufficient premium to cover simple claims – much less the extensive applicable presumptions. Workers’ compensation coverage for volunteer firefighters is currently available through the assigned risk plan for that very reason. Most local governments purchase Accident & Health policies for volunteer fire companies, which provide better wage replacement benefits and various medical benefit options are available. This bill failed to report out of committee on a 5-9 vote.
- SB 1466 (Marsden) Workers’ compensation; infectious disease presumption; correctional officers. Workers’ compensation; infectious disease presumption; correctional officers. Provides that correctional officers are entitled to a presumption that hepatitis, meningococcal meningitis, tuberculosis, MRSA, or HIV causing the correctional officer’s death or resulting in his total or partial disability is an occupational disease suffered in the line of duty and is compensable under the Virginia Workers’ Compensation Act.
VMLIP Comment: Technically only applicable to state corrections officers, but if it were to pass, it would be used to attempt subsequent expansion to local government jail personnel. There is no medical evidence to support a presumption for corrections personnel. Died in committee on a 15-0 vote.
- SB 1472 (Favola) Workers’ compensation; accident reports; filing claims; civil penalty. Requires an employer’s accident report filed with the Workers’ Compensation Commission to include the signature of the injured employee or his personal representative. The measure provides that the employer’s filing of the accident report constitutes the filing with the Commission by or on behalf of the employee of a claim for workers’ compensation benefits with respect to any injury arising from the accident. The measure also provides that an employer that fails to comply with the requirement that it report an employee’s injury or death, or dissuades or deters an employee from filing a claim for compensation, shall be assessed a civil penalty of not more than $500, which civil penalty is increased to not less than $500 and not more than $5,000 if the violation is willful.
VMLIP Comment: This bill poses significant ramifications for VMLIP and all WC insurers. It essentially removed the obligation of the employee to file his or her claim with the Virginia Workers’ Compensation Commission (VWCC), which would put all claimants on an open award. The VWCC likely asked for this due to constraints with their Electronic Data Interface “paperless” system. Passed by Indefinitely on a 15-0 vote in committee.