No one goes to work thinking they will get hurt.
But it happens. Often.
Indeed, Virginia workers compensation law touches more lives than any other field of law in the state.
In 1946, the Supreme Court of Virginia wrote that workers comp law “comprises one of the most important branches of law. Upon its effectiveness depends the potential welfare of a large number of employees and their families.”
The economy has changed. But the role of workers comp has not.
As Judge E.R. Mills said decades later:
Workers compensation is a very important field of law, if not the most important. It touches more lives than any other field of the law. It involves the payments of huge sums of money. The welfare of human beings, the success of business, and the pocketbooks of consumers are affected daily by it.
The decisions of the Virginia Workers Compensation Commission and appellate courts interpreting the Workers Compensation Act and the Commission’s Rules determine the payments of hundreds of millions of dollars yearly. Indeed, receiving workers compensation benefits is often the difference between a family having food, clothing, and a roof over their head or living in poverty.
Despite its profound impact on countless lives, businesses, and government programs, the nuances and complications of Virginia workers compensation law remain a mystery to many. This system often leaves injured employees, employers, doctors who treat workers compensation patients, and attorneys who do not specialize in workplace injury litigation feeling bewildered, making it challenging even for personal injury attorneys who dabble in the field.
Employers, workers compensation insurance carriers, and claim administrators (such as Sedgwick, ESIS, Gallagher Bassett, etc.) use this lack of knowledge to delay, deny, and defend workers comp claims brought by injured employees like you or a loved one. Using this disparity in understanding workers comp helps insurers save millions of dollars yearly.
I want to change that and eliminate insurance companies’ advantages over employees when a dispute arises because of an occupational injury or illness.
This website empowers you—the injured worker—with knowledge about workers comp in Virginia. It compiles and distills knowledge of the law (including thousands of judicial decisions) and medicine that determines the payment of workers compensation in Virginia, which I have gained over thousands of cases, into one area.
After reading the articles, I hope you understand the laws, rules, and evidence that influence the outcome of your workers comp claim, including a fair settlement amount for your specific injury.
If you have questions about your case, complete this form or call (804) 251-1620 or (757) 810-5614. You can also learn more about Virginia workers compensation frequently asked questions (FAQs) here. My law firm takes on the world’s largest employers, insurers, and claim administrators (Amazon, Walmart, Travelers, and others) in Virginia workers comp litigation, and we want to help you get what you deserve.
Workers compensation is a no-fault system that provides medical care (including vocational rehabilitation) and pays cash benefits to employees who have disability (missed time), lost wages, lost opportunities to earn a living, and permanent impairment from work-connected personal injuries and occupational diseases and illnesses developed from exposure to harmful conditions of their employment.
Workers comp is a significant departure from common law torts. It does not aim to right a wrong when someone acts irresponsibly. Instead, workers compensation is corrective litigation with humane and benevolent purposes. Its goal is to protect employees and encourage occupational safety.
Emerging as a response to the Industrial Revolution-era surge in workplace injuries leading to disability, death, and poverty, workers compensation law is a product of a balanced societal exchange between the interests of employers, employees, insurers, and the public.
Indeed, workers comp is a compromise between employers and employees to settle differences about how the law should treat work-related personal injury claims.
Both sides suffered before the development of modern workers compensation acts. Employers faced the potential for high litigation costs or a heavy judgment that could bankrupt them. Employees had to overcome traditional defenses of negligence claims and endure the months or years it would take to get a decision. Therefore, workers compensation was a “grand bargain” that helped the two sides make peace.
Under this system, employees receive reduced but guaranteed benefits for covered injuries, illnesses, and death, regardless of fault or liability. In return, they relinquish their right to sue their employers in civil court if they get hurt or sick. This exchange ensures a level of security for both parties.
Employers accept relaxed standards of proof, waive common law defenses (assumption of risk, contributory negligence, fellow servant doctrine, etc.), and agree to pay the statutory benefits in eligible cases. In return, employers receive protection from lawsuits and large jury verdicts in tort lawsuits that could bankrupt their businesses.
In 1918, the Virginia General Assembly enacted the Virginia Workmen’s (now Workers) Compensation Act, making Virginia the 37th state to enact such a system for compensating work-related injuries, illnesses, and deaths. Virginia’s first workers comp law modeled the Indiana Workers Compensation Act. Indeed, courts have said it was “a virtual copy of an Indiana statute.”
Initially, the legislation compensation injured workers for accidental injuries within the hazards of their employment.
Years later, in 1944, the Virginia General Assembly added limited coverage for occupational disease to the Workers Compensation Act.
The current statute charges the Virginia Workers Compensation Commission (formerly the Industrial Commission of Virginia) with administering it and adjudicating disputes arising under it. The Act also orders the Workers Compensation Commission to make rules and regulations for carrying out its responsibilities under the statute.
Virginia workers comp rules and statutes change constantly.
For example, the Virginia General Assembly usually makes three to ten changes to the Workers Compensation Act each term. These amendments respond to societal change, appellate decisions from the year before, new data on workplace accidents, scientific discoveries, or lobbying efforts from trial lawyers representing claimants and insurers.
In addition, the Workers Compensation Commission and appellate courts publish hundreds of judicial opinions each year interpreting workers comp law and rules.
And the Commission can amend its rules, having done so this year, in 2024.
Most countries follow one of two major legal traditions: civil law or common law.
Civil law systems rely on legal codes (statutes) to resolve disputes.
In contrast, common law systems rely on past judicial decisions (precedents) to resolve legal disputes.
Virginia workers compensation law has features of both systems.
Statutes, laws passed by the Virginia General Assembly, govern many aspects of workers compensation.
Title 65.2 of the Code of Virginia contains multiple statutes forming the Virginia Workers Compensation Act.
The Act organizes its parts into the following chapters and sections:
Our workers comp system also has a common law component in Virginia because deputy commissioners, Full Commissioners, and state court judges publish decisions interpreting the Virginia Workers Compensation Act.
These judicial opinions shape the law and injured workers’ rights.
For example, a significant part of preparing for a workers comp hearing is finding past decisions that support your position and presenting facts at trial that align your evidence with this judicial precedent.
You can search for past Virginia workers compensation decisions here.
“Do I have a workers compensation case in Virginia?”
This common question seems simple, but it requires a complicated analysis to answer.
The following sections explain the basic features and eligibility requirements of workers comp in Virginia.
I recommend that you use it as a checklist to determine whether you satisfy the eligibility requirements for Virginia workers compensation.
Generally, the law of the state where you get hurt applies.
For example, Virginia workers compensation law and the Rules of the Virginia Workers Compensation Commission apply to all injuries occurring within the Commonwealth.
However, in some situations, Virginia may have jurisdiction over workplace injuries outside its borders. Whether Virginia workers comp law applies to a “foreign injury” depends on the specifics of your employment contract and whether your employer has a principal place of business in Virginia.
Under Virginia law, workers compensation insurance coverage is mandatory for nearly every employer. All employers who regularly employ more than two workers, part-time or full-time, must carry workers’ compensation insurance. Employers who do not have coverage may have to pay civil fines or face a tort lawsuit by injured employees.
Unlike other states, Virginia has no state insurance fund to cover workers comp liabilities. Therefore, an employer must insure Virginia workers compensation by:
Hint: The Virginia Workers Compensation Act covers over 97 percent of employees. Chances are good that you are eligible for benefits if you are an employee who suffered a work-connected injury.
However, Virginia law excludes certain classes of employees and does not subject businesses with two or fewer employees to workers comp insurance requirements.
Coverage is limited to persons who have the status of an employee; independent contractors do not qualify for workers comp in Virginia.
Fortunately, your employer cannot designate you as an independent contractor to avoid having to pay workers compensation.
Instead, the Virginia Workers Compensation Commission and appellate courts have a four-part test to determine whether you are an employee or an independent contractor as a matter of law, with the power of control being most important.
You have Virginia workers comp coverage for the entire period of employment. Coverage begins on the first day you start working, even if you have a training period.
Proving that the Virginia Workers Compensation Act covers you and your employer is only the beginning. You must also show that you suffered a personal injury by accident caused by a specific risk of your employment. Or a disease connected to your job.
Virginia workers compensation laws cover personal injuries that arise “out of and in the course of the employment.”
Countless court decisions have interpreted the meaning of the words.
A “personal injury” is a sudden mechanical or structural change to a body part that produces harm, pain, or a decreased ability to use the body. You can prove an injury with medical records, diagnostic imaging results (MRI, CT scan, X-ray), or testimony and pictures showing that you felt a pop or had swelling, bruising, numbness, tingling, or a laceration.
The suddenness test separates accidental injuries from those occurring gradually, cumulatively, or due to an eroding physical condition.
In addition, the workers comp definition of a “personal injury” includes purely psychological injuries (such as Post-Traumatic Stress Disorder) resulting from a “sudden shock or fright.”
A sudden change in the body is insufficient to get workers’ comp. You must also prove that an accident caused the injury.
An accident is an unusual, unexpected event, or an event “which creates an effect which is not the natural or probable consequence of the means employed and is not intended, designed, or reasonably anticipated.” This definition allows you to recover workers comp for injuries from common movements.
In addition, Virginia workers compensation requires you to pinpoint the specific accident.
This part of the “personal injury by accident” test causes frequent litigation. Indeed, the Workers’ Compensation Commission grapples continuously with the line between a discrete event and gradual exposure (cumulative trauma/repetitive motion).
But remember, your symptoms do not have to appear immediately. As long as you can identify the specific event, the Commission may award benefits despite a lag of several hours (or even days) between the incident and the development of symptoms.
Most states use the actual risk or positional risk doctrines to determine whether an injury qualifies for workers’ compensation benefits.
Virginia follows the actual risk doctrine.
Under this doctrine, the mere happening of an accident at the workplace is insufficient to get workers comp in Virginia. You must also prove that your employment conditions or a work-related exertion produced the injury.
However, injuries from walking, bending, and turning do not qualify for benefits unless other circumstances (such as rushing or an awkward position) exist.
The last element you must show to prove that workers’comp covers an injury is the “course of employment” test.
An injury occurs “in the course of” employment when it happens within your employment period, at a place where you reasonably may be, and while fulfilling your job duties or something incidental to the work. In other words, this prong looks at whether your injury happened at a proper “time and place.”
Often, this inquiry is straightforward. However, a dispute may arise if your injury happens on an out-of-town business trip, just before or after your shift starts or ends, when “going and coming” from work, or during a rest or meal break.
Virginia workers comp covers occupational diseases that arise out of and in the course of employment are not ordinary diseases of life to which the public is usually exposed to outside of their employment.
Negligence and fault do not matter in workers comp.
Indeed, workers compensation statutes attempt to reduce the need for litigation by automatically paying benefits when an injured employee meets the other criteria.
For example, a finding that an injured worker’s negligence caused the bodily injury does not result in forfeiture of benefits or lessen the amount or type of medical care received because contributory negligence is not a defense to an occupational injury claim.
Further, proof that the employer is fault-free does not eliminate the employer’s liability for workers comp benefits.
Similarly, an OSHA citation to your employer for an unsafe work environment resulting in your injury will not give you a private cause of action against the employer or increase your workers compensation award.
Virginia law provides many workers compensation benefits for covered injuries and illnesses.
The primary benefits include wage loss payments, usually equal to two-thirds of your average weekly wage, compensation for permanent partial disability (PPD), and lifetime medical coverage (hospital, medical, surgical, therapy, and rehabilitation expenses).
Workers comp is the only remedy available to most workers for damages related to covered injuries, diseases, and deaths.
Indeed, injured employees waive the right to sue their employer (or coworker) under common-law negligence and tort laws, with limited exceptions (such as uninsured employers or sexual assault claims).
However, injured workers can sue third parties whose negligence caused the occupational injury. These third-party work injury lawsuits often arise from construction site accidents, forklift accidents, overturned cranes, commercial trucking crashes, and car collisions.
For example, you may have a Virginia workers compensation claim against your employer and a civil action against another driver if you suffer injuries in a car accident while on the job.
But remember: Under the principle of subrogation, the employer has a lien against the verdict or settlement proceeds of the third-party lawsuit.
Further, Virginia workers comp laws require you to get the workers compensation insurer’s permission before settling a third-party lawsuit. Otherwise, you risk forfeiting additional benefits under the Virginia Workers Compensation Act.
You may have read this quote before: “You have to learn the rules of the game. And then you have to play better than anyone else.”
This saying applies to Virginia workers compensation rules.
The Commission has published Rules of the Virginia Workers Compensation Commission that apply to all claims.
These rules “provide procedures to identify and resolve disputed issues promptly through informal dispute resolution or hearing.” Further, the Commission’s interpretation of its rules stands unless an appellate court finds it arbitrary or capricious.
The Virginia workers compensation rules have 37 rules, many with subparts, grouped into 13 titles.
Listed below is each rule.
This category includes thirteen workers compensation rules: Rules 1.1 to 1.13.
Rule 1.1 lists the requirements for your original claim for benefits.
Rule 1.2 lists the requirements for claims for changes in condition and has the “90-day rule.” Under this rule, the Commission will only award up to 90 days of wage loss benefits before the filing date, encouraging injured employees to act quickly.
Fortunately, the 90-day rule does not apply to initial claims for benefits or requests for cost-of-living adjustments (COLAs).
Rule 1.3 adds an extra requirement to claims, forcing you to file supporting evidence within 90 days of claim filing or risk facing a motion to dismiss.
Rule 1.4 lists the technical requirements for an employer’s application for a hearing to suspend or terminate benefits.
Rule 1.5 does three things.
First, it allows the Commission to order the employer to respond to your claim and provide reasons for denial if applicable.
Second, this rule gives you fifteen days to present evidence opposing the employer’s efforts to stop benefits.
Third, it permits the Commission to refer the employer’s application to mediation or for a hearing.
Rule 1.6 tells you how to request a review of a Workers Compensation Commission decision you disagree with.
Rule 1.7 lists the technical requirements for workers compensation settlement papers.
Rule 1.8 controls discovery in workers compensation cases.
Rule 1.9 explains when the Commission will refer a claim or application for mediation.
Rule 1.10 says employers and insurers must file a written notice of intent to rely on willful misconduct or violation of a safety rule defense at least 15 days before the scheduled hearing.
Rule 1.11 gives deputy commissioners the right to require the parties to submit a prehearing statement detailing their claims, defenses, and witnesses. Most deputy commissioners use this form. You must submit it at least seven days before the scheduled hearing.
Rule 1.12 gives the Commission the power to sanction parties for violating workers compensation rules or court orders.
Rule 1.13 is a new workers compensation rule that follows practices in state and federal courts. The moving party or their legal counsel must reasonably confer and resolve the matter with the opposing party before filing a motion. In addition, the party opposing the motion has three business days to respond before the Commission rules on the motion.
This category has four workers compensation rules: Rules 2.1 to 2.4.
These rules address workers comp hearings.
Rule 2.1 describes when the Commission will resolve contested issues without an evidentiary hearing. Instead, the court determines the claim after reviewing written briefs (position statements). This procedure is similar to a motion for summary judgment in civil court.
Rule 2.2 controls evidentiary hearings, which the Commission must conduct as a judicial proceeding. This rule consists of multiple subparts that address requests for continuances (postponement of the hearing) and the presentation of evidence and testimony.
Rule 2.3 explains how to get an expedited hearing on a change in condition claim. Expedited workers compensation hearings are available only if you previously received an Award Letter.
Rule 2.4 is an addition to the post-COVID era. It describes the video-hearing procedures, which may be appropriate when you live out-of-state.
This category includes four rules that govern appeals from the initial hearing (deputy commissioner) to the Commission (three Commissioners) level: Rules 3.1 to 3.4
Rule 3.1 provides the timeline for requesting a review of an award, order, or judicial opinion you disagree with. The rule also explains what information to include in the appellate request.
Rule 3.2 says that on appeal, the parties argue through written statements.
Rule 3.3 states that the Workers Compensation Commission will not consider new evidence on appeal except in limited situations.
Rule 3.4 allows the parties to request oral arguments when they request a review of a lower-level decision. However, the Commission does not have to grant the request.
Rule 4 includes two rules that control what documents the parties must file with the Commission: Rules 4.1 to 4.2.
Rule 4.1 directs the parties to submit forms memorializing agreements regarding compensation payments. This rule also limits how long an employer can hold agreement forms you have signed.
Rule 4.2 orders the parties to exchange all medical records and reports received during the litigation. This rule generally has no exceptions. Further, this rule says treating health care providers must produce medical reports if asked.
This rule restates existing law when it says an injured employee has no liability for the costs of medical services payable under the Workers Compensation Act.
Our firm sees little litigation concerning Virginia Workers Compensation Commission Rule 5.
This title includes two rules governing awards of attorney’s fees under Virginia Code Section 65.2-714: Rules 6.1 to 6.2.
Specifically, these rules address situations where an injured worker’s lawyer seeks a fee from a medical provider when litigation is needed to receive authorization and payment for a particular medical treatment.
Rule 6.1 states that the Commission will award an attorney’s fee to the injured employee’s lawyer if the lawyer and the medical provider agree on an amount and submit the amount of medical charges recovered.
Rule 6.2 details the procedure when a claimant’s lawyer and the medical provider disagree on the attorney’s fee for recovered charges.
Rule 7 has two rules addressing employer responsibilities under the Virginia Workers Compensation Act: Rules 7.1 to 7.2.
Rule 7.1 directs every employer to file with the Commission proof of workers compensation insurance.
Rule 7.2 orders every employer to post notice of compliance with the Workers Compensation Act at a place its employees frequently visit.
Rule 8 has two rules explaining when an employer can self-insure for workers compensation and what the Commission does with that information.
This workers compensation rule category has two rules for compensating injured employees: Rules 9.1 to 9.2.
Rule 9.1 explains the days included in calculating the waiting period for wage loss. All days or parts of a day when you cannot earn a full day’s wages due to injury count toward the waiting period.
Rule 9.2 says the employer, insurer, or claim administrator must pay owed compensation to you directly. Awarded attorney’s fees, however, go directly to your lawyer.
This category includes three rules for X-ray evidence for coal workers’ pneumoconiosis claims, a condition known as “black lung disease.”
Rule 10.1 limits the number of X-ray interpretations each party can submit in a black lung claim.
Rule 10.2 permits a party to a black lung disease claim to submit x-ray evidence to the Workers’ Compensation Commission for interpretation by a Pulmonary Committee. Doing so, however, binds the party to the Commission’s interpretation and classification of the extent of the disease.
Rule 10.3 explains who the Commission may appoint to the Pulmonary Committee.
This rule also applies to pneumoconiosis claims.
It provides a table explaining how the Commission classifies the stages of black lung disease.
This rule applies to claims for occupational hearing loss.
It explains how the Commission determines compensable percentages of hearing loss using a table with average decibel losses.
This rule applies to claims for vision loss.
It explains how the Commission determines the percentage of loss of visual acuity based on Snellen Chart Readings.
This data for last year comes from multiple sources, including the Virginia Workers Compensation Commission’s 2023 Annual Report:
Virginia workers compensation plays a crucial role in society by providing a financial safety net and medical treatment to employees hurt at work.
However, understanding and comprehending Virginia workers comp law and rules will challenge you. And a mistake during the claim process could affect your eligibility, costing you thousands of dollars.
My law firm believes that educating clients on the Virginia workers compensation system is the best way to ensure they make the best choices for their family, health, and finances. This is why we answer hundreds of frequently asked questions about work comp on this website.
We hope you use this information to get everything you deserve.
And if you have any questions about your case, call me: (804) 251-1620 or (757) 810-5614.