The Following are Proposed Amendments to the Virginia Workers’ Compensation Act Related to the COVID-19 Outbreak
Proposed Amendment to Section 65.2-402 of the Code of Virginia:
§ 65.2-402. Presumption as to death or disability from respiratory disease , hypertension or heart disease, cancer.
A. Respiratory diseases that cause (i) the death of volunteer or salaried firefighters or Department of Emergency Management hazardous materials officers or (ii) any health condition or impairment of such firefighters or Department of Emergency Management hazardous materials officers resulting in total or partial disability shall be presumed to be occupational diseases, suffered in the line of duty, that are covered by this title unless such presumption is overcome by a preponderance of competent evidence to the contrary.
B. Hypertension or heart disease causing the death of, or any health condition or impairment resulting in total or partial disability of (i) salaried or volunteer firefighters, (ii) members of the State Police Officers’ Retirement System, (iii) members of county, city or town police departments, (iv) sheriffs and deputy sheriffs, (v) Department of Emergency Management hazardous materials officers, (vi) city sergeants or deputy city sergeants of the City of Richmond, (vii) Virginia Marine Police officers, (viii) conservation police officers who are full-time sworn members of the enforcement division of the Department of Game and Inland Fisheries, (ix) Capitol Police officers, (x) special agents of the Virginia Alcoholic Beverage Control Authority appointed under the provisions of Chapter 1 (§ 4.1-100 et seq.) of Title 4.1, (xi) for such period that the Metropolitan Washington Airports Authority voluntarily subjects itself to the provisions of this chapter as provided in § 65.2-305, officers of the police force established and maintained by the Metropolitan Washington Airports Authority, (xii) officers of the police force established and maintained by the Norfolk Airport Authority, (xiii) sworn officers of the police force established and maintained by the Virginia Port Authority, and (xiv) campus police officers appointed under Article 3 (§ 23.1-809 et seq.) of Chapter 8 of Title 23.1 and employed by any public institution of higher education shall be presumed to be occupational diseases, suffered in the line of duty, that are covered by this title unless such presumption is overcome by a preponderance of competent evidence to the contrary.
C. Leukemia or pancreatic, prostate, rectal, throat, ovarian or breast cancer causing the death of, or any health condition or impairment resulting in total or partial disability of, any volunteer or salaried firefighter, Department of Emergency Management hazardous materials officer, commercial vehicle enforcement officer or motor carrier safety trooper employed by the Department of State Police, or full-time sworn member of the enforcement division of the Department of Motor Vehicles having completed 12 years of continuous service who has a contact with a toxic substance encountered in the line of duty shall be presumed to be an occupational disease, suffered in the line of duty, that is covered by this title, unless such presumption is overcome by a preponderance of competent evidence to the contrary. For the purposes of this section, a “toxic substance” is one which is a known or suspected carcinogen, as defined by the International Agency for Research on Cancer, and which causes, or is suspected to cause, leukemia or pancreatic, prostate, rectal, throat, ovarian or breast cancer.
D. The presumptions described in subsections A, B, and C shall only apply if persons entitled to invoke them have, if requested by the private employer, appointing authority or governing body employing them, undergone preemployment physical examinations that (i) were conducted prior to the making of any claims under this title that rely on such presumptions, (ii) were performed by physicians whose qualifications are as prescribed by the private employer, appointing authority or governing body employing such persons, (iii) included such appropriate laboratory and other diagnostic studies as the private employer, appointing authorities or governing bodies may have prescribed, and (iv) found such persons free of respiratory diseases, hypertension, cancer or heart disease at the time of such examinations. This requirement does not apply to any claim arising out of subsection F. of this section.
E. Persons making claims under this title who rely on such presumptions shall, upon the request of private employers, appointing authorities or governing bodies employing such persons, submit to physical examinations (i) conducted by physicians selected by such employers, authorities, bodies or their representatives and (ii) consisting of such tests and studies as may reasonably be required by such physicians. However, a qualified physician, selected and compensated by the claimant, may, at the election of such claimant, be present at such examination.
F. Respiratory diseases arising out of COVID-19 infections that result in (i) the death of a healthcare worker or (ii) resulting in total or partial disability, shall be presumed to be occupational diseases, suffered in the course and scope of employment, that are covered by this title unless such presumption is overcome by clear and convincing evidence to the contrary.
G. Whenever a claim for death benefits is made under this title and the presumptions of this section are invoked, any person entitled to make such claim shall, upon the request of the appropriate private employer, appointing authority or governing body that had employed the deceased, submit the body of the deceased to a postmortem examination as may be directed by the Commission. A qualified physician, selected and compensated by the person entitled to make the claim, may, at the election of such claimant, be present at such postmortem examination. This requirement shall not apply to any claims arising under Subsection F of this section.
H. Volunteer emergency medical services personnel, volunteer law-enforcement chaplains, auxiliary and reserve deputy sheriffs, and auxiliary and reserve police are not included within the coverage of this section.
I. For purposes of this section, “firefighter” includes special forest wardens designated pursuant to § 10.1-1135 and any persons who are employed by or contract with private employers primarily to perform firefighting services.
J. For purposes of subsection F, “healthcare worker” includes any physician, registered nurse, nurse’s assistant, physician’s assistant, administrative or janitorial staff or any other person that is regularly employed at any physician’s office, hospital, urgent care facility, long or short term care facility, rehabilitative facility, or other health care facility that receives, diagnoses, treats, or cares for individuals suffering from COVID-19 infections.
Proposed Amendment to Section 65.2-503 of the Code of Virginia:
65.2-503. Permanent loss
A. Compensation for permanent partial and permanent total loss and disfigurement shall be awarded as provided in this section.
B. The following losses shall be compensated for the period specified at the rate of 66 2/3 percent of the average weekly wage as defined in § 65.2-101:
|2. First finger (index finger)
|3. Second finger
|4. Third finger
|5. Fourth finger (little finger)
|6. First phalanx of the thumb or any finger
|one-half compensation for loss of entire thumb or finger.
|The loss of more than one phalanx of a thumb or finger is deemed the loss of the entire thumb or finger. Amounts received for loss of more than one finger shall not exceed compensation provided for the loss of a hand.
|7. Great toe
|8. A toe other than a great toe
|9. First phalanx of any toe
|one-half compensation for loss of entire toe.
|The loss of more than one phalanx of a toe is deemed the loss of the entire toe.
|14. Permanent total loss of the vision of an eye
|15. Permanent total loss of hearing of an ear
|16. Severely marked disfigurement of the body resulting from an injury not otherwise compensated by this section
|not exceeding 60 weeks.
|17. Pneumoconiosis, including but not limited to silicosis and asbestosis, medically determined to be in the
|a. First stage
|b. Second stage
|c. Third stage
|19. Lung Damage arising from COVID-19 infection
C. Compensation shall be awarded pursuant to § 65.2-500 for permanent and total incapacity when there is:
1. Loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof in the same accident;
2. Injury for all practical purposes resulting in total paralysis, as determined by the Commission based on medical evidence; or
3. Injury to the brain which is so severe as to render the employee permanently unemployable in gainful employment.
D. In construing this section, the permanent loss of the use of a member shall be equivalent to the loss of such member, and for the permanent partial loss or loss of use of a member, compensation may be proportionately awarded. Compensation shall also be awarded proportionately for partial loss of vision or hearing.
E. Except as provided in subsection C, the weekly compensation payments referred to in this section shall be subject to the same limitations as to maximum and minimum as set out in § 65.2-500.
1. Compensation awarded pursuant to this section shall be payable after payments for temporary total incapacity pursuant to § 65.2-500.
2. Compensation pursuant to this section may be paid simultaneously with payments for partial incapacity pursuant to § 65.2-502. Where compensation pursuant to this section is paid simultaneously with payments for partial incapacity pursuant to § 65.2-502, each combined payment shall count as two weeks against the total maximum allowable period of 500 weeks.