Is a Herniated Disc from a Work Injury Covered in Virginia, and What Is It Worth?

Corey R. PollardWorkers’ compensation attorney · Former insurance defense · $100M+ recovered

Yes, workers’ compensation covers a herniated disc caused or worsened by a specific work-related incident, rather than by years of wear and tear or cumulative trauma. That is the fight in most of these cases, and it is likely the issue you are already fighting if you’re reading this: the insurer accepted a “lumbar strain,” the MRI then showed a herniated disc, but now the insurer has denied that injury or the surgery you need to fix it.

An MRI showing a disc herniation isn’t enough to win your workers’ comp case; a high percentage of adults will have a disc bulge or protrusion on their lumbar MRI even without symptoms. What wins workers’ comp for a herniated disc is testimony and medical records that establish a compensable injury from the accident, along with your doctor’s opinion that the injury caused, accelerated, aggravated, exacerbated, or worsened the disc herniation, even a tiny bit.

I have handled these claims from both sides. I started my career defending insurers and employers against them – herniated disc claims are some of the most common in Virginia workers’ compensation – and I have represented injured workers with lumbar disc injuries ever since. In fact, I have negotiated more than 150 workers’ compensation settlements for herniated disc injuries, and won at an evidentiary hearing for others. Here is how the insurers and Commission decide these claims, what moves the settlement value, and where the insurer is most likely to raise defenses.

This page is about disc injuries specifically. If you want the bigger picture on back injuries at work in Virginia, including how the claims are valued, start with back injuries at work and come back here.

Herniated disc injuries, at a glance

The insurer accepted a lumbar strain or sprain and denied the herniated disc. Now what?

Workers’ comp adjusters often review files with the diagnosis of “lumbar strain.” Without red flags, insurers often authorize treatment and pay it voluntarily, even without an Award Order in place. Many back strains resolve with rest, a short dose of medication, and a few weeks of physical therapy.

If your lumbar strain doesn’t resolve, your treating physician will likely order a lumbar spine MRI. This MRI may show a disc herniation at L3-L4, L4-L5, or L5-S1. If so, your case becomes more costly for the insurer: prolonged pain management, epidural steroid injections, a discectomy, and even a lumbar fusion if the discectomy doesn’t help. That is why an insurance company that accepts a lumbar strain may suddenly deny treatment and workers’ comp benefits for a herniated disc, instead sending you to an independent medical evaluation (IME).

I’ve read more of these IME reports than I can count. Usually the IME doctor, whom the insurer hand-picked, will agree that the work accident caused a lumbar strain and that disability and treatment for the first three to six months were reasonable, necessary, and related to that work accident, but that anything after that point, including surgery your doctor recommends, is related entirely to a pre-existing condition. The insurer’s basic argument is this: “Your strain was a temporary aggravation of pre-existing degenerative disc disease of the lumbar spine,” and now you’re fully healed. The herniation was already there.

Insurers have a second move that is not an argument at all: they delay offering an Award Agreement form that covers the herniation. Because many disc herniations improve on their own, the adjuster will wait to see if the evidence changes. That is why you press the issue and file a claim with the Commission instead of waiting on the insurer to do the right thing.

My firm frequently overcomes this defense in herniated disc claims. Two examples: Gripper v. MCC, JCN VA00001725653 (August 4, 2022) and Ryder v. New Bell Truck Lines Inc., JCN VA02000016097 (January 21, 2015).

If that is where you are in the process, call my firm at (804) 251-1620. I can usually tell the insurer’s strategy based on the denial letter and the MRI report.

What the words on your lumbar MRI report mean

A disc is a cushion between two vertebrae with a tough outer ring (the annulus fibrosus) and a soft center (the nucleus pulposus). Radiologists now use one set of definitions, and the insurer’s doctor will use them against you if you don’t know them.

• Annular tear (the report may say annular fissure): a split in the outer ring. The center has not come through. It can cause real back pain on its own.
• Bulging disc: the whole ring sags outward, all the way around. By definition, a bulge is not a herniation. Insurers lean hard on that word because a bulge may read as wear rather than an acute injury.
• Herniated disc: a focused push of disc material out through a weak spot in the ring. The report will usually say protrusion (still mostly contained), extrusion (pushed out through the ring and into the spinal canal), or sequestration (a piece has broken free). Extrusions and free fragments sound worse, but they are also the ones most likely to shrink on their own.

The level matters because it predicts your symptoms, and the adjuster will check whether what you tell your treating doctor matches the level shown as damaged on the lumbar MRI. Each disc presses on the nerve root that exits below it, and each nerve root travels to known parts of the leg and foot. The lumbar spine levels, from the top down:

L4-L5 and L5-S1 together account for most work-related lumbar herniations; the upper levels are rare and, when they show up, are more often a fall or a crush than a lift.

Two more things to remember about this table. First, a large herniation can press on more than one root, and a far-lateral herniation presses on the root above the usual one, so a mismatch between your level and your symptoms does not automatically create a credibility problem. Second, the physical exam findings in the early records can serve as the basis for an impairment rating to the legs from a disc herniation, so they can matter as much as the MRI report.

Why the MRI alone does not prove your case

In a review of 33 studies of people with no back pain, approximately 37 percent of 20-year-olds and 96 percent of 80-year-olds had some form of disc degeneration. Nearly a third of pain-free 20-year-olds had a disc protrusion. And one in five had an annular fissure despite having no symptoms.

The IME doctor knows this. So does the insurer. Its argument in many disc injury claims is the same: the MRI is normal for someone your age, so the work-related injury caused a strain that has now healed, and whatever work restrictions you have now, or medical care you need, is degenerative. And sometimes it works.

Here is what you need to overcome this common insurance argument and win your claim or negotiate a fair herniated disc settlement.

1. A described event. Virginia requires an injury by accident: an identifiable incident, at a reasonably definite time, that caused a sudden mechanical or structural change in your body. You satisfy it when you can point to the lift, fall, pull, or crash, and the MRI then shows a herniation. The symptoms do not have to happen instantly; a back that seizes up that night or the next morning after an identifiable exertion still counts. What doesn’t count in Virginia is pain that built up over a shift or longer period. The Commission usually treats that as repetitive trauma, and Virginia workers’ comp does not cover repetitive trauma, either as an injury by accident or an occupational disease.
2. Consistent medical records. What you told the first medical provider who saw you after the accident is critical to receiving workers’ comp for a herniated disc. If the report describes a specific incident with new symptoms (or worsening symptoms if you have a history of back pain), you are in decent shape. However, if you describe repetitive motion or uncertainty about what caused this new or increased back pain, you will have trouble proving your case.
3. A doctor who commits in writing. In some cases, the Commission allows injured workers to prove causation on testimony alone. But you should not rely on this. Instead, ask your treating physician to state, in writing, that the accident caused the herniation, or that it aggravated or exacerbated a disc that was not causing you problems, or as many problems, before.

What a herniated disc claim pays in Virginia workers’ comp

No “one-size-fits-all” approach works to determine the potential settlement value of a work-related disc injury. I’ve settled herniated disc claims for $10,000 to $20,000 when the employees healed completely and returned to full duty after a couple of weeks of bed rest and some physical therapy. At the other end of the range, I’ve obtained a settlement of more than $1 million for a roofer who suffered multiple lumbar disc herniations after falling off a house.

Medical care. If you win your case, the insurer pays for all medical treatment that is reasonable and related to the disc injury for life, from the panel doctor you choose and their referrals: imaging, therapy, injections, surgery if needed, and follow-up. The insurer can dispute a specific treatment but cannot cap the benefit.

Wage loss. If the Commission finds you are disabled from all work because of the herniated disc, you can receive two-thirds of your pre-injury average weekly wage. You can also receive this amount if the employer cannot accommodate your light duty restrictions and you adequately market your residual work capacity.

Permanency. This is where disc injuries differ from almost every other injury on this site. Virginia does not pay permanent partial disability for the back. It pays for loss of use of a leg or an arm. A lumbar herniation that leaves you with lasting weakness, numbness, or reflex loss in a leg can be rated as a leg, but only if a doctor examines the leg, documents the loss of use, and assigns a percentage. I’ve spoken with many doctors who know the back isn’t a ratable body part, but don’t know that you can still recover permanent partial disability benefits for a back injury that affects the legs.

What moves the number. The biggest factors are whether you need surgery, whether you get back to your old job, and your age. A herniation that settles down with therapy and a few weeks off is worth something close to the average workers’ comp claim nationally. A herniation that goes to a discectomy, or a fusion, and leaves you with permanent restrictions that take you out of warehouse, nursing, or trade work is worth several times that, because the wage loss runs longer and the future medical care is more expensive.

Practice Tip: A meaningful share of injured discs reherniate at some point, with one source stating it occurs 20 percent of the time. Use this fact to negotiate a better settlement for your herniated disc case. Temporary improvement doesn’t mean the insurer escapes liability in the future.

If you have surgery to fix the herniation

Most herniations never get to surgery. Estimates of how many do run from about five to ten percent in the general public, although I’ve seen it much higher in my practice. Common operations include a discectomy or a laminectomy to take pressure off the nerve and free it.

In one large study of people who had surgery for their lumbar disc herniation, 95 percent were back at work within a year, with an average of about eleven weeks off, and longer for people in manual jobs. A few decisions come up around that surgery, and it helps to make them on purpose rather than let the adjuster make them for you:

• Who does it. Surgery by a doctor outside your panel or referral chain gives the insurer a reason not to pay for it. Get the referral in writing before the date is set.
• Settle before or after. A settlement closes medical care. Before surgery, the number is wrong by the cost of the operation and the months off work that follow it. After surgery, you know what you have. Whether you will have health insurance after the settlement matters too, as does the language of the settlement papers, because once the medical award closes, you will have to figure out how to pay for additional treatment.
• What the restrictions say. The surgeon’s permanent restrictions often decide whether you go back to your job, whether wage loss continues, and whether there is a leg or arm rating to be paid. Ask for them in writing at the final visit.

Be mindful: I have represented several injured workers in Virginia who underwent surgery for a herniated disc, but continued to have symptoms. Ultimately they required a lumbar fusion. Factor this possibility into any settlement talks.

Jobs where I see this injury most often

Although anyone can suffer this kind of injury on the job, most of the herniated disc cases I handle come from a handful of occupations: nurses and CNAs who move patients; warehouse and delivery workers at places like Amazon and UPS who lift, push, and pull a lot; flight attendants helping passengers while the airplane experiences turbulence; and construction workers whose positions require manual labor. In fact, I’ve won cases for many workers in these fields who had a history of back pain, including past surgeries, and then suffered a new disc herniation because of a specific workplace incident. If your disc went from quiet to painful after a specific job movement, tell your doctor what happened and seek legal counsel.

Common questions about workers’ comp claims for disc injuries

My MRI shows a bulging disc, not a herniation. Do I still have a claim? Yes. A bulge or annular tear caused or aggravated by a work accident is covered the same way as a disc herniation claim. The MRI report’s label describes the disc’s shape; Virginia workers’ compensation law focuses on the cause, the treatment you need, and whether it causes limitations that lead to wage loss.  

I had back pain before this. Does that end the claim? No. Virginia follows the “eggshell skull” doctrine, meaning the employer takes you as it finds you. I’ve won a claim for a hospital worker whose disc herniation worsened after helping a patient move from their wheelchair to the bed, even though the nurse had required back pain medications for years. I’ve also won a case for a construction worker with three prior back surgeries, who suffered a new herniation lifting a bucket full of cement.  

The insurer accepted my strain but denied the disc. What now? Unfortunately, that’s what I expect from the insurance company after handling thousands of cases. Fortunately, you do not have to take the insurer’s word for it; you can litigate the case. Start by filing a claim with the Virginia Workers’ Compensation Commission or asking the Commission to schedule a hearing (if you’ve already filed one). Do it within two years of the accident.

Can I settle before I know whether I need surgery? You can, but I would not, unless your case has significant compensability problems. A settlement usually closes medical care. If the surgery question is open, the number could be wrong by tens of thousands of dollars.

How long will I be out of work? Every case differs. Many injured workers with herniated discs I help can return to light duty within three to six months, then full duty after that. But only if the pain resolves and surgery isn’t needed. If your pain continues, your doctor may recommend a discectomy. Then you could be out of work much longer, even requiring permanent restrictions that your employer cannot accommodate. Your doctor’s restrictions, not the calendar, have a greater impact on how long you receive temporary total disability or temporary partial disability benefits.