What is Virginia’s Workers’ Compensation 90-Day Rule?

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

The 90-day rule in Virginia workers’ compensation limits how far back you can receive additional wage loss benefits after you have already received an award for a closed period. It applies to those of you who have a change in condition – new work restrictions, new marketing (job search) evidence, or an employer who can no longer accommodate light-duty- and now have wage loss. You can avoid the effects of the 90-day rule by filing a change-in-condition claim as soon as the additional wage loss starts.

What does Virginia’s 90-day rule say?

Unlike the two-year statute of limitations for injury by accident claims, you will not find the 90-day rule in the Virginia Workers’ Compensation Act. Instead, you must look to the Virginia Workers’ Compensation Commission’s Rules.

Virginia Workers’ Compensation Commission Rule 1.2, amended on January 4, 2024, is titled: Employee’s Claim on the Ground of Change in Condition or Other Relief.  

A subpart – Rule 1.2(B) – states the 90-day rule in Virginia:

Additional compensation may not be awarded more than ninety (90) days before the filing of the claim with the Commission. Requests for cost-of-living supplements are not subject to this limitation.  

The 90-day rule in plain English

In this section, I explain what this rule means to injured workers in Virginia.

First, if you have not filed an initial claim for benefits with the Workers’ Compensation Commission or received an award for temporary total, temporary partial, or permanent partial disability, the 90-day rule does not apply to you. Read this on how to file a workers’ compensation claim in Virginia if you are still on that step.

You still have two years from the accident date to file a claim with the Commission under Virginia Code Section 65.2-601. And if you prove a compensable injury, you could, in theory, receive wage loss benefits all the way back to the incident date even if you file the initial claim on the day before the two-year statute of limitations expires.

Only if you have already obtained an award for wage loss or permanency benefits do you need to consider the effect of the 90-day rule.

Here is an example of how it works:

You hurt your knee when you fall off a ladder at work. Your employer accepts your claim, and the Commission awards medical and wage-loss benefits.

A few months later, your doctor releases you to return to light-duty work. You send these restrictions to your employer, which finds you a less physically demanding job that pays the same. After you return to work, the employer files an application for a hearing to suspend benefits, which leads to you signing a Termination of Wage Loss Award.

You try the light-duty job, but your knee pain worsens, and six months later you follow up with the surgeon. He orders an MRI and says that you need a total knee replacement. That surgery takes place on July 1, 2026, and you have been disabled from all work since then.

In this scenario, you can – and should – seek additional wage loss benefits because you have had a change in your condition relating to the work injury: the need for surgery and total disability. As long as you file a claim within 90 days of the surgery date, you can receive the extra wage loss payments owed, beginning July 1, 2026, and continuing.

However, if you wait more than 90 days after July 1, 2026, to file the change-in-condition claim, you risk the 90-day rule limiting how far back you can go and how much you can receive in retroactive benefits. For example, if you file the same claim on February 1, 2027, you can still receive additional wage loss benefits – but only from November 3, 2026 forward. You will have given up the four months of temporary total disability between the surgery date and that cutoff. On an average weekly wage of $900, that is roughly $10,400 you cannot recover, and the limitation applies even though your medical evidence fully supports the disability.

That said, the loss is not automatic. The employer still has to raise it – and as I explain below, that doesn’t always happen.

What is the purpose of the 90-Day rule?

The Court of Appeals of Virginia has said the 90-day rule “exists to protect the employer’s right to provide medical treatment and rehabilitation to reduce liability by providing the employer notice of a change in the employee’s condition.” Pantry Pride v. Backus, 18 Va. App. 176 (Va. Ct. App. 1994). This differs somewhat from the Commission’s holding that, “The purpose of the 90-day rule is to encourage an injured worker to obtain compensation as it becomes due.” Harris v. State Police, JCN VA00001028775 (Aug. 30, 1992).

I don’t agree with the Court of Appeals’ sentiment. By the time the 90-day rule applies, the employer has already received notice of the work injury and paid benefits to the injured employee. Further, the Commission has imposed other requirements on claimants to receive additional wage loss benefits after a change in condition, such as marketing.

My feelings aside, the 90-day rule still applies to change-in-condition claims. But, as the next section explains, its application is not automatic.

Does the 90-day rule automatically apply?

No.

The 90-day rule is not a jurisdictional defense, which means the employer waives the defense if it fails to raise it. Boswell v. Borg Warner Protective Service, VWC File No. 175-37-92 (March 3, 1997). By contrast, you must satisfy the two-year statute of limitations for initial claims, even if the insurer does not raise it, because satisfying the statute is necessary for the Commission to have jurisdiction to decide your claim.

The possibility that the insurer may forget to raise the 90-day rule is why I do not cut the benefits period sought when filing a change-in-condition application where more than 90 days have passed since the change that triggers the right to more wage loss payments. Instead, I wait to see if the employer and insurer raise the defense. I am surprised by how often many forget about it.

Additionally, the Commission will not apply the 90-day rule when the evidence proves the existence of a de facto award. Wise v. Titan Mid-Atlantic Aggregates, JCN VA00001082364 (Oct. 20, 2017). That award may exist if the insurer voluntarily pays you benefits at the correct rate for a significant period without offering an Award Agreement or filing an executed agreement form, then raises the 90-day rule at a hearing.

What to do if you have had a change in condition

File the change-in-condition claim as soon as the additional wage loss starts. Not when you have the surgery scheduled, not when the doctor writes the note, not when you have gathered your records – as soon as you are out of work or back to reduced earnings because the employer cut your hours. Every week you wait is a week you may not be able to recover.

If more than 90 days have already passed, file anyway, and claim the full period from the date the disability began. Do not trim the request to fit the rule. The 90-day rule is a defense the employer has to raise, and it does not always get raised.

If you are not sure whether what has happened to you counts as a change in condition, or whether you are already outside the 90 days, call me at (804) 251-1620.

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.