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The Commission has addressed the issue of whether a claimant may file for permanent total disability benefits while he/she is still on an open award for temporary total disability benefits. The case law suggests that this procedure is not favored. “As a matter of practice, the Commission does wait until nearer the expiration of the 500 weeks before converting a temporary-total award to a permanent-total award since by that time, there is frequently no question as to whether the claimant is permanently and totally incapacitated.” Long v. DBR Const., Inc., VWC File No. 164-30-05 (decided July 6, 2000). Further, “an […]

In Burlington Northern v. White, 126 S.Ct. 2405 (June 22, 2006), the United States Supreme Court decided an important case that set forth a new test as to how courts would need to analyze Title VII retaliation claims. A recent decision by Chief Judge Jones of the Western District of Virginia gives us some helpful insight as to how retaliation cases may be analyzed after Burlington Northern. In Martin v. Merck & Co., 2006 U.S. Dist. LEXIS 60830 (W.D. Va. Aug. 28, 2006), the Court granted summary judgment to Merck in a case involving allegations of race harassment, discrimination and […]

On October 6, 2006, Mr. Paxton and Mr. Leeson presented on the above topic at the Virginia Bar Association’s Section on Labor and Employment Law’s 36th Annual Conference. This paper is a shortened version of the 23-page written paper that accompanied the presentation. Readers of this article who would like additional information on this topic should contact Mr. Paxton or Mr. Leeson. In June the United States Supreme Court decided an important Title VII retaliation case, Burlington Northern & Santa Fe Railroad Co. v. White, 126 S. Ct. 2405 (June 22, 2006). The initial reaction was that this decision would […]

Organize. Do not necessarily follow the order of opposing counsel’s direct examination of the witness. Use principals of primacy and recency. What the jury hears first and last are most memorable. Utilize the Two Types of Cross-Examination, as Appropriate. There are two types of cross-examination, constructive and destructive. With constructive cross-examination, the lawyer seeks to get helpful testimony from the witness. Such testimony can corroborate the testimony of one of your witnesses or impeach another witness, either or both of which may be helpful to your case. The format, “Mr. Jones, can we agree that…?” is often useful in framing […]

On November 17, 1987, National Linen Service v. McGuinn was decided by the Virginia Court of Appeals. Since that time, many questions have arisen concerning what constitutes a de facto award, when is the de facto award applicable, and what defenses, if any, survive an entry of a de facto award. In McGuinn, the claimant sustained an injury to his ankle in August 1983. Although the claimant had not filed a claim for benefits and no memorandum of agreement had been forwarded to the claimant, the carrier paid temporary total disability benefits from November 22, 1983 through December 17, 1984. […]

A recent federal case re-emphasizes the importance of management training to avoid punitive damages in employment litigation. An Alexandria jury had awarded each plaintiff $600,000 in compensatory damages and $2 million in punitive damages on claims of racial harassment. White v. BFI Waste Services, LLC, 2006 U.S. App. LEXIS 12749 (4th Cir. May 23, 2006). But the Fourth Circuit Court of Appeals held that, while the management training did not insulate the employer from all liability, the adoption and implementation of a comprehensive policy to address the issue did shield it from exposure to punitive damages. The company argued that […]

A recent U. S. Supreme Court decision has potentially far-reaching implications for self-funded health plans sponsored by many employers. Employers and their insurance companies will need to utilize effective monitoring systems to stay aware of health and medical-related lawsuits filed by plan participants if they hope to recover costs advanced. With the escalating cost of health care, employers unaware of this decision may find it difficult to exercise the subrogation or recoupment rights built into most company’s plans. In Sereboff v. Mid-Atlantic Medical Services, Inc. (“MAMSI”), decided May 15, 2006, the U.S. Supreme Court held that a health plan can […]

Our company has received Notice from the EEOC that a former employee has filed a discrimination charge. What do we need to know about the process? The Equal Employment Opportunity Commission (“EEOC”) is the federal agency that investigates charges of workplace discrimination, harassment, or retaliation under several federal employment laws such as Title VII, the ADA or the ADEA. When a person files a formal charge, the EEOC provides written “Notice” to the company and usually requests a response. Here is some information regarding the process. It may be helpful to know that persons file almost 80,000 charges a year […]

ERISA is the Federal law governing employer-sponsored benefit plans, including health, life, pension and disability plans, established for employees. These plans can be self-funded or insured. Typically, employers engage a third party to administer the plan, such as an insurance company responsible for deciding whether to pay the benefits under the policy. Can a Plan Create Subrogation Rights? The answer is a resounding “maybe.” In 2002, the U. S. Supreme Court held that an employer’s health plan could not bring an ERISA claim against an employee for reimbursement of medical costs when the participant had recovered those same expenses from […]