As a workers compensation lawyer I spend a lot of time investigating why the insurance carrier refuses to accept my client’s claim and finding a way to overcome those defenses. This article explains the most common workers compensation defenses raised by employers and insurance carriers in Virginia.
Knowing why the insurance carrier is defending your claim – instead of approving it and paying the workers compensation benefits sought – will help you determine what evidence is necessary to win at your workers compensation trial. The more evidence you have to overcome the insurance carrier’s defenses, the more likely it is that you will not only win at trial but also receive a top-dollar workers compensation settlement.
The information below comes not only from years of representing injured workers across Virginia but also from years of defending workers comp claims. I defended employers, insurance carriers, and local governments in Virginia workers compensation matters before focusing my practice on protecting the rights of injured employees and their families.
After reading this article you will know what it means when the insurance carrier defends your workers comp claim on one of the following grounds:
Keep reading to learn more. If you have questions, or are looking for top-quality legal representation in Richmond, Newport News, Virginia Beach, Fairfax, Roanoke, or elsewhere in Virginia, call me today: 804-251-1620 or 757-810-5614. I’m ready to help you and your family win your claim and get everything you’re owed.
In Virginia you must give written notice of the work accident and injuries to your employer within 30 days of the date of the accident. If you don’t, and the employer can prove that it was prejudiced by your failure to do so, then you may be barred from receiving benefits.
I recommend giving written notice of your accident to the employer as soon as possible – on the day of the accident if possible. It should be one of the first things you do after a work accident.
Only if your medical condition requires emergency treatment should you wait to give notice. And even then you should give notice in writing as soon as you’re physically and mentally capable of doing so.
The longer you wait the more likely it is that the insurance company will deny your claim and require you to go to a workers compensation hearing to prove your right to benefits. Insurers see any delay in reporting as a sign that your accident may have happened when you were off the clock.
Virginia has strict time limits for when you must file a claim for workers compensation. Depending on the type of injury or occupational disease, these time limits range from two to five years.
Because statutes of limitations are not flexible in most cases, you should contact an attorney and file a claim right away. If you wait too long then the insurance company will defend your claim on the basis that it is time barred and will avoid having to pay you compensation even though you suffered a valid injury.
You must prove that you suffered an “injury by accident” to receive workmans comp in Virginia.
You can prove an injury by accident if you show you were hurt in an identifiable incident that occurred at some reasonably definite time and that this incident caused an obvious sudden mechanical or structural change in the body.
An injury to your reputation, such as through defamatory statements, is not an injury by accident under the Workers Compensation Act.
Your testimony and the medical records can overcome the defense of no injury by accident. If you had bruising, swelling, bleeding, or other physical symptoms obvious to the eye or diagnostic imaging, then the insurance company will have a difficult time defending your claim on this basis.
Your injury must arise out of a risk of the employment to receive workers comp benefits in Virginia.
Virginia uses an actual risk test. This means your employment must expose you to the particular danger that caused your injury. An injury does not arise out of the employment just because it happened while you were performing a work-related task.
You will satisfy this test only if there is a causal connection between your injury and the conditions under which the employer required you to complete the work. If your injury arises out of a hazard to which you would have been equally exposed to apart from the employment, then you do not satisfy the actual risk test.
Insurance carriers often raise this defense in cases involving injuries due to slip and fall accidents, going up and down stairs, or simple acts of walking, bending, and standing. But it can be overcome with help from an experienced attorney.
An injury happens in the “course of the employment” when it takes place during the period of your employment, at a place where you reasonably may be, and while you are completing work duties or doing something incidental to those work duties.
An injury may happen in the course of employment at your company’s headquarters, while on a work trip, or anywhere else you are allowed to be to compete your job duties.
The employer and its insurance company may raise this defense if you were hurt because you deviated from the employment or while going or coming to work. There are, however, some exceptions to the going and coming rule.
It is difficult to win a claim for psychological injuries under the Workers Compensation Act. The only exception is if you allege depression, anxiety, or PTSD arising out of your underlying physical injury. This is known as a change in condition claim seeking medical benefits for a compensable consequence of the initial injury.
When an “injury is strictly psychological, it must be causally related to a physical injury or be causally related to an obvious sudden shock or fright arising in the course of the employment.” Chesterfield County v. Dunn, 9 Va. App. 475 (1990). An emotional problem caused by a physical injury may be covered.
Mental health conditions caused by workplace stress, conflicts with supervisors, or disagreements over managerial decisions are not covered under the Workers Compensation Act.
This is a rare defense but I have seen it raised at least twice in the past few years, though unsuccessfully.
If you intentionally caused your injury then the employer is not responsible for paying you benefits.
Suicide, however, may be an exception to this rule.
The Virginia Court of Appeals found suicide was a compensable event under workers comp in Food Distributors and Century Indemnity Company v. Estate of Ball, 24 Va. App. 692 (1997). In that case the injured employee had undergone multiple surgeries for his injury but was diagnosed with a medical condition resulting in chronic pain and disability. This pain led to depression and ultimately to suicide.
I see this self-inflicted injury defense raised in cases where the employee is under investigation by the employer for something else, such as embezzlement or providing free services to customers, so the insurance company alleges that the employee injured himself or herself on purpose to avoid getting fired.
If your work-related injury is caused by your intoxication or illegal drug use, including the use of a non-prescribed controlled substance, then you are not eligible for benefits.
The employer bears the burden of proving that your intoxication or drug use was a proximate cause of your injury.
You may still receive benefits if the employer is unable to prove that alcohol or drug use was a cause of your workplace injury.
To learn more about this topic, read my article on Post-Incident Drug Testing.
In some states horseplay is a defense to workers comp claims. In Virginia, however, an employee may receive workmans comp benefits if he or she is the innocent victim of on-the-job horseplay.
An injury that is the natural and probable consequence of your willful misconduct is not covered under the Workers Compensation Act. Common examples of actions that lead to the insurance company alleging willful misconduct include:
In my opinion the willful misconduct defense is raised too often. Call an attorney and continue fighting for your legal rights if the employer raises this defense.
If the employer can prove that it hired you based on a misrepresentation you made on your application and that this misrepresentation is related to your work injury, then it does not have to pay benefits.
How does this defense work in the real world? Let’s take a look at Grimes v. Shenandoah Valley Press, 12 Va. App. 665, 406 S.E.2d 407 (1991).
In Grimes the claimant denied having prior back problems when she applied for a job. She subsequently suffered a muscular back strain. The employer denied the claim, arguing that she made a material representation when she withheld that she prior back aches related to kidney stones. The commission held against the employer and allowed compensation.
But wait! Isn’t it illegal for employers to ask about prior injuries or disabilities under the Americans with Disabilities Act (ADA)?
Yes, it is. But the ADA does not apply to all employers. Most small employers are not subject to the ADA and may still have the misrepresentation defense available in workers’ compensation claims.
If your employer is subject to the ADA and asks you about previous injuries or disabilities, you may have an employment law claim under the ADA. That’s why we’ve seen this defense used less and less over the past few years. If an employer is subject to the ADA it will likely not be able to raise this defense to your workers’ comp case.
This is a favorite defense of workers compensation insurance carriers. And one that we are often able to beat them on.
If you have a prior injury or preexisting condition, such as arthritis, then you can rest assured that the insurance company will blame your ongoing disability or need for medical treatment on that condition and not your recent injury by accident.
But if you’re able to prove that your injury aggravated or worsened your condition then you can receive benefits.
The employer has the right to try to reduce its liability for temporary total disability payments by providing vocational rehabilitation services.
If you refuse to cooperate with vocational rehabilitation, and the Commission finds your refusal unjustified, then the employer and its insurance carrier may suspend benefits.
Call an attorney if you get a request to meet with a vocational rehabilitation counselor. Though great in theory, voc rehab is often a trap for workers in practice.
You must seek medical treatment, comply with your authorized treating physician’s recommendations, and attend an independent medical evaluation (IME) or functional capacity evaluation (FCE) if it is scheduled by the insurance company.
The insurance company can deny your claim or suspend benefits if you refuse to attend doctor appointments, physical therapy, or other medical examinations.
I’ve even seen insurance companies allege refusal of medical treatment when an employee does not lose weight quickly enough or stop smoking when a doctor recommends doing so before a joint replacement or spinal fusion surgery.
Has a doctor given you medical restrictions? Then follow them! An employer and its insurance company are not responsible for any injuries or aggravations of pre-existing conditions caused by your knowing violation of medical restrictions.
There is one exception – when the employer knows about your work restriction and tells you to ignore it. In that case the employer may be responsible for any injuries related to you ignoring your work restriction. But I recommend that you refuse to do any job that requires you to perform physical tasks outside of your restrictions.
Because you have the burden of proof in your workers comp case, you must be able to show why your accident happened. Idiopathic injuries – those whose cause is unknown – are usually not covered unless a specific risk of the employment worsened
For example, if you don’t know why you slipped and fell, the Commission will likely deny your case. On the other hand, you will likely win your case if you can credibly explain that you slipped on liquid.
Most of you – roughly 97% – work for employers who are required to purchase workers compensation insurance in Virginia. But some of you are not covered by Virginia workers’ comp – either because your employer is not required to provide coverage or because of the nature of your employment.
A. Fewer Than Three Employees
The Workers Compensation Act does not apply to employers with fewer than three regular employees in Virginia. The employer has the burden of proving that it had less than three employees working in Virginia when you were injured.
If your employer’s “established mode of operating the business” regularly required three or more employees, but it had fewer than that, you may still be entitled to workers comp benefits. See Perry v. Deslisle, 46 Va. App. 57 (2005).
B. Casual Labor
You are not entitled to workers comp benefits if the Commission finds that you were hurt while engaged in casual labor. Casual labor is defined as work that is not normally performed by the employer.
Here is an example. Let’s take a church that hires one of its members, a roofer, to fix the roof. The roofer is then hurt while performing that work. The Commission will find that the roofer is engaged in casual labor for the church and is not an employee of the church.
C. Domestic Servants
Domestic servants are not covered under the Workers Compensation Act.
If you are a maid or nanny for a specific household you will likely be barred from receiving workers comp benefits if you’re injured on the job.
D. Farm Laborers
The Workers Compensation Act does not cover farm and horticultural laborers, unless the employer has three or more full-time employees.
The Workers Compensation Act applies to employees only. An independent contractor is not entitled to workmans comp benefits.
An injured worker’s status as a covered employee or an uncovered independent contractor is disputed frequently, especially in claims involving construction accidents.
Whether or not you are an independent contractor is based on the actual relationship you have with the employer, not any paperwork you sign with the employer. So even if you signed a contract stating that you are an independent contractor you may still be eligible for workers comp benefits after an on the job injury.
The Commission will consider multiple factors when deciding whether you were an employee or an independent contractor. Who had the power to direct and control your work is the most important factor. Other factors include the right to hire, the right to fire, and the obligation to pay wages.
I help all types of injured workers who have been hurt in all types of work accidents get the benefits and workers comp settlements they deserve. No matter the defense being raised by the insurance company, we can help. Call, text, or email us today for a free case evaluation. Corey Pollard is here for you.
