Virginia Court of Appeals rules “Good Faith Exception” does not apply in Virginia Workers’ Compensation Claims
Under § 65.2-603 of the Code of Virginia, an employer “shall furnish or cause to be furnished, free of charge to the injured employee, a physician chosen by the injured employee from a panel of at least three physicians selected by the employer and such other necessary medical attention.” If an employer fails or refuses to provide a panel of physicians, the injured employee can select their own treating physician.
In Jalloh v. S.W. Rodgers, et al. (VLW 023-7-126), the Virginia Court of Appeals reversed the Virginia Workers’ Compensation Commission’s finding that S.W. Rodgers acted in good faith in attempting to provide a panel of physicians to an injured worker. Four days after Abu Jalloh was injured in June 2021, an employee representative contacted Mr. Jalloh about medical treatment. The representative also went to Mr. Jalloh’s home with a list of approved physicians. Mr. Jalloh refused to meet with the representative and he left without leaving a copy of the list of approved physicians. Mr. Jalloh subsequently requested workers’ compensation benefits and medical treatment. S.W. Rodgers defended on the grounds that the Claimant was not authorized to treat with his own physician.
The Virginia Workers’ Compensation Deputy Commission ruled that S.W. Rodgers was responsible for Mr. Jalloh’s medical treatment because they failed to provide him with a panel of physicians. In a split decision, the full Virginia Commission reversed the decision. They opined that S.W. Rodgers made a “good faith effort” to provide a panel of physicians and that Mr. Jalloh “frustrated the employer’s efforts to provide a panel.”
The Virginia Court of Appeals reversed the Virginia Commission. The Court opined that the legislature had the express authority to provide a “good faith exception” within § 65.2-603 and had failed to do so. As such, S.W. Rodgers and other employers are required to provide a written panel of approved physicians to injured workers within the meaning of the Virginia Workers’ Compensation Act. Failure to do so will result in injured workers being allowed to choose their own treating physicians. As a “best practice”, it is recommended that an approved panel of providers be mailed to injured workers by certified mail.
Sarah Burton