Virginia Workers’ Compensation Client Advisory: Full Commission Holds Retroactive COVID-19 Presumption is Constitutional

In May, 2021, the legislature passed two bills creating presumptions for healthcare providers and firefighters/law enforcement who tested positive for COVID-19. SB1375 granted a presumption for healthcare providers who tested positive for COVID-19 between March 12, 2020 and December 31, 2021. HB1875 gave a similar presumption for firefighters/law enforcement officers who tested positive between July 1, 2020 and December 31, 2021. From the second these laws were enacted, the defense bar noted that these bills may be unconstitutional, because they impact substantive rights retroactively.

In Martin v. Fluvanna County, the Deputy Commissioner denied a COVID-19 claim seeking the presumption, on grounds that the statute was unconstitutional and Claimant was not entitled to the presumption. The Full Commission reversed, finding the legislature intended to apply it retroactively, and finding that it affected a remedy rather than a substantive right, and the retroactive application of the presumption was therefore justified.

In all likelihood, we can expect an appeal to the Court of Appeals. We will continue to monitor the status and will provide updates on the substantive rights of carriers.

Any questions regarding this case can be addressed to Mike Bliley, Esquire, at mbliley@tthlaw.com or (571) 464-0435.