Virginia: Worker Loses Comp Benefits By Failing to Attend Scheduled FCE Session

Where an employer sought to terminate an injured worker’s benefits on the grounds that she had unjustifiably refused medical treatment—on three occasions over a four-month period of time, she cancelled a scheduled (and rescheduled) “functional capacity evaluation” (“FCE”) session—the employee’s “cure defense” offered at a hearing more than ten months after the initial FCE appointment was not made in good faith, held a Virginia appellate court, since it was not accompanied by evidence of any affirmative acts by the employee or evidence of mitigating circumstances excusing the employee's inactivity. At the hearing, the worker testified that she was “ready, willing, and able” to attend an FCE. Acknowledging that the worker did appear for an FCE on December 15, 2016, one week afterthe hearing on the employer’s request to terminate benefits, he evidence established that the worker took no known action whatsoever in the nearly seven-month period between the time the employer filed the request and the date of the hearing. The Court reasoned that she apparently waited until after the hearing, assuming she’d prevail. The Court also indicated that even if the full Commission was aware that the worker had filed the December 15, 2016 FCE, which was unclear, the full Commission was still firmly within its authority to reject that evidence at such a late date in the case.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See DeVaughn v. Fairfax Cty. Pub. Sch., 2018 Va. App. LEXIS 294 (Oct. 30, 2018)

See generally Larson’s Workers’ Compensation Law, § 10.10.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law