Four New Virginia Workers’ Comp Opinions: Wage Corrections, Video Spoliation, and an Insurer-Insured Conflict (July 10, 2026)

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

Today, July 13, 2026, the Virginia Workers’ Compensation Commission issued four judicial opinions from July 10, 2026, that injured workers and attorneys should know. From video evidence traps to wage calculation errors, here is what you need to know.

Thomas v. Express Services, Inc – Cumulative Trauma Derails the Claim

In Thomas v. Express Services, Inc., JCN VA02000044075 (July 10, 2026), the full Commission affirmed the deputy commissioner’s denial of benefits. Thomas worked for a temporary employment agency that assigned him to a packaging company where he had to lift cases of beer. He alleged a back injury from this activity.

The Commission found Thomas honest about what happened to his back – the pain resulted from “repetitive work” and “doing the same thing over and over the entire time [he] worked there.“

Because Thomas denied he felt pain while lifting “one particular box,” the Commission found that his injury resulted from cumulative trauma. And the case law holds that unless a claimant can identify the incident that caused his injury, he cannot recover compensation. The Virginia Workers’ Compensation Act does not cover injuries caused by cumulative trauma from repetitive motion.

Takeaway for injured workers: One of the biggest hurdles I see in proving compensable back injuries from lifting is an initial medical record that says something like, “Patient reports back pain after heavy lifting at work.” This description makes sense – and it’s what the doctor needs to know to diagnose and treat you. But this description alone may be insufficient to receive workers’ compensation benefits in Virginia. If you felt pain or discomfort while lifting and can pinpoint exactly what you were doing or what item you had in your hands at the time, tell the doctor those details and ask them to include that description in your office visit or emergency department note.

Arman v. Pohanka Automotive – Video Evidence, Spoliation, and Interlocutory Review

In Arman v. Pohanka Automotive, JCN VA00002415858 (July 10, 2026), the Commission denied interlocutory review of the deputy commissioner’s decision denying the claimant’s evidentiary motions. Initially, the claimant moved to preserve video footage of his work accident. The employer provided video footage beginning at 10:00 pm on the accident date, when the claimant’s reported injury occurred at approximately 7:00 pm that same evening.

The deputy commissioner, however, denied the motion for failing to comply with Rule 1.13 of the Rules of the Virginia Workers’ Compensation Commission. This rule requires the moving party or their counsel to confer with the opposing party before filing any motion.

Subsequently, the claimant filed a Motion for Finding of Spoliation regarding the video evidence, as well as a Motion for Adverse Inference and Sanctions for Spoliation of Evidence, arguing that the employer deliberately allowed the relevant portion of the video to expire. The employer filed a response opposing the motion.

In denying the motion, the deputy commissioner held that the employer “adequately set forth why” it downloaded only certain parts of the video footage starting at 10 pm on the alleged accident date. The claimant had reported that his pain became “significantly worse” at that time, and his deposition testimony “appears to admit that the alleged incident would not be readily noticeable or visible.” Using these findings and others, the deputy commissioner denied the motion.

The claimant filed a Motion for Reconsideration, which the deputy commissioner denied. Then he requested review by the full Commission, asserting that substantial prejudice would occur and good cause existed to grant interlocutory review because the employer “destroyed the only evidence by which the central defense to compensability could be tested.“

Citing the standard for granting interlocutory review when a deputy commissioner has not entered a final decision or award, the Commission held that the claimant did not establish good cause for interlocutory review, nor that substantial prejudice might result by declining review.

Takeaway for injured workers: Three things stand out from this opinion. First, you must act fast if you think video footage of your work incident exists. Including a statement such as “Preserve all video footage of this incident” in your written accident report (sample here) can help you hold the employer accountable if it deletes evidence. Second, the adverse inference from spoliation is a powerful weapon for claimants, which may make the Commission hesitant to grant it. Third, in my experience, the Commission rarely grants interlocutory review; however, this does not mean you waive the argument your motion addresses on appeal after the deputy commissioner decides the claim’s merits.

Lai v. ABA Wellness – Amendment to the Average Weekly Wage Allowed

In Lai v. ABA Wellness LLC, JCN VA00002097874 (July 10, 2026), the Commission reversed the deputy commissioner in part, instead allowing the claimant to amend her pre-injury average weekly wage.

In March 2024, the Commission entered a Stipulated Order signed by the parties. This award provided temporary total disability (TTD) benefits. But the figure was wrong.

More than one year later, the claimant sought to amend her average weekly wage and receive underpaid indemnity benefits. She attached pre-injury wage records to support this claim.

The employer stipulated to the accuracy of the wage records, but objected to amending the average weekly wage because there was no mutual mistake of fact or imposition to justify modification of the award, and the doctrines of res judicata and laches barred the claim.

After an evidentiary hearing, the deputy commissioner denied the application for amendment, holding that it was not “seasonably made.” He found it significant that the claimant had counsel and possessed her wage records when the Commission had first entered the award.

On review, the Commission cited case law holding that “it is immaterial whether the mistake of fact is mutual or unilateral.” The Supreme Court of Virginia has emphasized the importance of accurately memorializing a claimant’s average weekly wage. Exercising its power to do full justice, the Commission noted that the time required to seek an amendment is not the only factor to consider. It must also consider the claimant’s explanation, the magnitude of the error, and whether the delay caused prejudice to the employer. With these factors in mind, the Commission amended the average weekly wage.

Takeaway for injured workers: The pre-injury average weekly wage is the most important number in your case because it determines the value of indemnity benefits and a workers’ compensation settlement. Though the Commission permits amendment in some situations, waiting is risky. Review the wage documents as soon as you can, and fight for the correct average weekly wage if disputed. And if you’ve already accepted a figure that turns out to be wrong, Lai shows it might not be too late to fix it and recover more wage loss payments.

Smith v. Dominion Steel LLC – Conflict Between the Insurer and the Insured

In Smith v. Dominion Steel LLC, JCN VA00002448822 (July 10, 2026), the majority of the full Commission permitted the employer to challenge an Award Order that its own insurer had agreed to. While noting that the insurer stands in the employer’s shoes and acts on the employer’s behalf in workers’ compensation claims, the majority found it proper to vacate the award when the employer and insurer have a conflict of interest and the employer timely disputes the agreement.

In his dissent, Commissioner Marshall held that allowing “an insured employer to independently request review of an insurer’s agreement is a departure from the Commission’s prior case law confirming an insurer speaks for an employer and that both parties do not have an unrestricted independent right to initiate appeals. The majority has not articulated why a departure from longstanding case law is warranted.” He stated further, “Allowing an employer to challenge a decision made by its insurer, with whom it has contracted to administer its mandatory obligations, frustrates the purposes of the Workers’ Compensation Act. It creates a pile of problems. It allows two defendants, legally bound in contract to satisfy a single liability under the Act, to arbitrarily take different positions. It rewards poor communication and inadequate investigations. Ultimately, it creates unjust delays in the determination of benefits under the Act.“

Takeaway for injured workers: I agree with Commissioner Marshall that allowing the employer and insurer to take contradictory positions will likely lead to problems. The good news is that the situation in this case seems to be an anomaly. But I will keep an eye on this line of case law to see how things develop. Potentially, it may open the door wider for injured workers to seek sanctions for unreasonable delays brought on by conflicts between insurers and insureds.

Don’t Let a Legal Technicality Ruin Your Claim

As these recent Virginia decisions show, a single misspoken word to a doctor or a slight delay in requesting evidence can hurt your claim for workers’ compensation. But you don’t have to navigate these complex, fast-moving rules alone.

If you’ve been injured on the job and have questions about Virginia workers’ compensation, contact Corey Pollard Law at (804) 251-1620 for a free, confidential consultation. Let us handle the insurance companies and the Commission while you focus on healing.

About the authorCorey Pollard is a Virginia workers’ compensation and Social Security Disability attorney in Richmond. Best Lawyers in America® (2020–2026), $100M+ recovered, and a former insurance defense lawyer — which is the part that matters.