Give your employer a written workplace accident report within 30 days. Or the insurer may defeat your claim because you waited too long to tell your employer about the injury.
File a claim for benefits with the Workers’ Compensation Commission within two years of the accident date or your last injurious exposure. Or the insurer may defeat your claim because the applicable workers’ comp statute of limitations expired.
Now we add another deadline: the workers’ compensation 90-day rule.
This article explains the 90-day rule under Virginia workers’ compensation law and how to protect your right to additional wage loss benefits (temporary total disability, temporary partial disability, permanent partial disability). In addition, it looks at what the workers’ compensation 90-day rule means in a few other states.
You will see a theme: avoid delay if you want workers’ compensation benefits.
Read on to learn more.
If you are tired of navigating the workers’ comp claim process alone and want help, complete this form or call (804) 251-1620 or (757) 810-5614. See if we will accept representation and help you win an evidentiary hearing or negotiate a workers’ comp settlement.
Virginia has a 90-day workers’ compensation rule. This rule relates to how far back you seek cash benefits when you have already received a closed period of benefits under an award order.
Rule 1.2 of the Virginia Workers’ Compensation Commission (amended on January 4, 2024) addresses an employee’s claim based on a change in condition.
A subpart, Rule 1.2(B), states Virginia’s 90-day rule:
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.
In other words, this rule limits the retroactive payments you can receive.
Here is an example of how it works.
You suffer a knee injury and receive benefits for two months of wage loss before returning to work.
Your knee pain worsens, so you return to the orthopedic surgeon who examined you after the accident. The doctor recommends you undergo a total knee replacement. You had the surgery on April 1, 2024, and have not returned to the job since.
Several months later, on September 1, 2024, you filed a change in condition application seeking temporary total disability (TTD) beginning the surgery date, April 1, 2024, and continuing.
Even if the medical evidence supports your claim, the 90-day rule would prevent you from receiving TTD from April 1, 2024, through June 3, 2024, because you can only receive benefits starting 90 days before your September 1 pleading.
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.”
Unlike the statute of limitations for original benefits claims, the 90-day rule is not jurisdictional. Therefore, the employer waives the defense if it fails to raise it before the parties submit the claim to the Commission for a decision.
This is why I do not cut the benefits period sought when filing a claim the 90-day rule may impact. Instead, wait to see if the employer and insurer raise the defense. I am often surprised by how many forget about it.
No.
Unlike the statute of limitations for original claims for benefits, the 90-day rule is not jurisdictional. Therefore, the employer waives the defense if it fails to raise it before the parties submit the claim to the Commission for a decision.
This rule has a different meaning in other states.
I give examples below.
Contact an attorney licensed in the specific state to learn how the rule may affect your case.
California’s 90-day rule presumes that work caused an employee’s injury or illness if the employer neither accepts nor denies the claim within 90 days of receiving the completed claim form. This interpretation forces employers and insurers to make determinations quickly.
In New York, the 90-day rule can mean that if you cannot work for an extended period, you must submit medical reports at least every 90 days to remain eligible for lost wage payments.
In Pennsylvania, the 90-day rule specifies that if the employer accepts the claim and has posted a panel (list) of six more doctors in your workplace, you must treat with one of these doctors within 90 days of the accident. If not, the employer or insurer may refuse to pay for treatment from a non-panel physician during this period.
After 90 days, you may seek medical care with a different healthcare provider.
I hope you now understand how the workers’ compensation 90-day rule can affect your case and that you will use this knowledge to recover the income replacement benefits available.
Call or email me with more workers’ comp questions or if you want high-quality legal representation.