Workers’ Compensation Defenses: What the Insurer is Really Arguing

The workers’ comp denial letter doesn’t say “we don’t want to pay you” or “we will delay treatment and benefits in hopes you give up your claim.” It usually includes a generic statement that you don’t meet the statutory definition of a compensable injury, with nothing else. Rarely does it provide more insight into the workers’ comp defenses the insurer relies on.

This page explains what defenses employers and insurers can use in your workers’ compensation case. After reading it, you will know what to look for, what questions to ask, and how to overcome the specific defenses the insurer plans to use to defeat your case.

I spent the first part of my career raising these defenses for employers, insurance carriers, and local governments. Now I spend my days knocking them down for injured workers across Virginia. That experience helps me help you: I know which defenses the adjuster raises in every case, even when they don’t apply; which ones are meant to scare you into accepting a lowball settlement; and what evidence gives you the best chance of overcoming the ones most likely to sink your case.

Consider this page as your map. It covers every defense I regularly see raised before the Virginia Workers’ Compensation Commission, groups them by what the insurer hopes to accomplish, tells you who carries the burden of proof, and links to a deeper article on each workers’ comp defense. If you know which defenses the insurer has raised, read the articles that match them.

Start Here: The Five Kinds of Workers’ Comp Defenses

I break the various defenses that employers and insurers raise into five categories. Knowing which category each defense falls into helps you determine what evidence you need.

1. Coverage defenses – “The Act doesn’t apply to you.” These defenses allege either that you are not an employee covered by the Virginia Workers’ Compensation Act, or that your employer was not required to carry workers’ comp coverage when you were hurt.
2. Compensability defenses – The insurer may agree you are injured but argue that Virginia workers’ comp doesn’t cover the cause of the harm.
3. Procedural defenses – A heartbreaking way to lose a workers’ compensation claim. The insurer’s argument: you didn’t follow the rules for notifying your employer or filing a claim, so you should not recover.
4. Conduct defenses – In this category, the insurer argues that your behavior led to the injury. These defenses require more than negligence, though, because negligence isn’t a defense to a workers’ compensation claim.
5. Benefit-limiting defenses – This category tries to limit the nature and severity of your work injury. The insurer will agree you were hurt at work but argue that, after a certain point, it owes you nothing, either because of a pre-existing condition or your alleged refusal to follow medical treatment or cooperate with vocational rehabilitation.

Don’t let this order fool you. Many cases are won or lost on the last set of defenses, and how you handle them can determine your workers’ compensation settlement amount.

Who Has to Prove What

This is the single most important thing to understand about workers’ comp defenses in Virginia. You carry the burden of proving a compensable injury and marketing, if necessary. But once you do, the employer and its insurer carry the burden on many of the defenses they raise. An adjuster who writes “willful misconduct” in a denial letter has just taken on a job: proving every element of that defense at a hearing.

1. Coverage Defenses: “The Act Doesn’t Apply to You”

Most of you work for employers who must carry workers’ compensation insurance. But not all. Sometimes employers deny claims, arguing that they don’t need coverage or that you weren’t an employee.

You Were an Independent Contractor

In my experience, this coverage defense is uncommon outside of construction accident cases. But in that group, I often see employers and insurers allege that the injured worker was an independent contractor, not an employee, so the Workers’ Compensation Act doesn’t apply. I also see this defense in many cases involving injured tree removal specialists and arborists.  

How the employer classified you and even what you called yourself matters less than who controlled the means and methods of your work. I won a case where the injured worker signed a contract called an “Independent Contractor Agreement”. However, the Commission still found him to be an employee for workers’ comp purposes.

Read my article on the complete test to determine your classification, the Commission decisions that apply it, and how to prove you were an employee: Am I an Employee or Independent Contractor Under Virginia Workers’ Comp?

The Employer Has Fewer Than Three Employees

The Virginia Workers’ Compensation Act only applies to employers that regularly have at least three employees in service in Virginia. But part-time and seasonal workers can count.

Small employers raise this defense when they operated without insurance and now face fines, subrogation efforts by the Uninsured Employer’s Fund, and paying the claim out of pocket.

If the business normally operated with three or more workers, the Commission could still find coverage required if the number of employees temporarily falls below three. Cotman v. Green, 4 Va. App. 256, 259, 356 S.E.2d 447, 449 (1987).

If the employer raises this defense, I recommend obtaining payroll records, schedules, and testimony about who worked with you.

The Act Excludes Your Category of Employment

The Act excludes a few categories of occupations from coverage: casual laborers, defined as those hurt while performing work the employer typically doesn’t do (for example, a church hires a member who is a roofer to patch the roof); domestic servants working for a specific household, such as nannies or maids for specific homes; and farm and horticultural laborers on small farms with less than three employees.

Lack of Jurisdiction

If your workplace accident occurs outside of Virginia, Virginia Code Section 65.2-508 gives the Commission jurisdiction if you made the contract of employment in Virginia and your employer has a place of business in the Commonwealth. Otherwise, the Commission may not have the power to hear or decide your case. Learn more about when Virginia has jurisdiction over out-of-state work injuries.

2. Compensability Defenses: “This Wasn’t a Work Accident”

Establishing compensability is straightforward in many occupational injury and illness cases, but sometimes it is the whole fight. It is an “all-or-nothing” type defense. If successful, you recover nothing for your injury.

No Injury by Accident

You generally cannot recover workers’ comp for cumulative trauma or repetitive motion injuries, even when there is no dispute that your work caused your injury.

Instead, you must prove there was an identifiable incident, at a reasonably definite time, that caused an obvious sudden mechanical or structural change in the body. This change need not be significant, but it must be present. Bruising, swelling, or a diagnosis of a sprain or strain is often enough.

Learn more about what makes a work injury compensable here.

The Injury Did Not Arise Out of the Employment

Virginia uses the actual risk test and has repeatedly rejected the more generous positional risk rule used in many states. Being at work when you got hurt is not enough. You must show the injury came from a hazard of the job – a condition under which the employer required the work to be done – rather than a risk you’d face equally in everyday life.

In my experience, employers and insurers use this defense when an employee gets hurt doing something on the job that they are just as likely to do at home – for example, bumping your knee on a desk or hitting your head on a post.

You beat this defense by identifying the work condition or sequence of events that led to the injury. Read my article on back injuries from lifting, twisting, or bending for specific examples of how I’ve done this.

The Injury Was Not in the Course of Employment

An injury is in the course of employment when it happens during work time, at a place you were reasonably expected to be, while doing your job or something incidental to it. The defense shows up in two situations.

Going and coming. Injuries during your ordinary commute are generally not covered. Virginia recognizes three exceptions: the employer provides transportation or pays for your travel time; you were hurt on the sole route of entry or exit the employer controls or constructed; or you were on a special errand or still performing a work task while traveling. Traveling employees and workers in company vehicles frequently fall inside an exception.

Personal deviation. Leaving work to do something purely personal can take you out of the course of employment until you return. However, short breaks, like a trip to the restroom, getting water or lunch, or similar personal comfort acts may be covered.

You Can’t Explain How the Accident Happened

If you cannot explain how an accident happened, and there were no witnesses or surveillance footage, the insurer likely has a valid defense to your workers’ compensation case. However, you have a potential path to recovering benefits if you had an idiopathic fall or event.

An idiopathic incident is one caused by a non-work-related medical condition – a seizure, fainting spells, etc. If that condition caused the accident and a work condition increased the harm, you can win your case. Examples include suffering a seizure or fainting spell while driving a tractor-trailer or working at a height. I’ve even negotiated a workers’ compensation settlement for a retail worker whose torn rotator cuff was made worse by the fact that she ran into a piece of furniture after stumbling for no reason.

Purely Psychological Harm Without a Sudden Shock or Fright

Unless you are a first responder (police, firefighters, EMTs), psychological injury with no physical component is compensable in Virginia only if it flows from a physical injury or from an obvious sudden shock or fright arising in the course of employment. Workplace stress, conflicts with coworkers or supervisors, or disagreements over managerial decisions like scheduling are not covered.

But if your mental health condition stemmed from a compensable physical injury, you can receive benefits for that psychiatric condition as a compensable consequence. This route is easier.

To learn how anxiety, depression, or PTSD claims for first responders are handled, read this page.

3. Procedural Defenses: “You Missed a Deadline”

No matter how strong your case, you still must follow the rules set out in the Virginia Workers’ Compensation Act, the Rules of the Workers’ Compensation Commission, and case law interpreting both.

Failure to Give Timely Notice to the Employer

Va. Code § 65.2-600 requires you to give your employer written notice of the accident within 30 days. If you miss it, the Commission may deny your claim unless you have a reasonable excuse and the delay did not prejudice the employer.

In practice, an employer’s actual knowledge of the accident satisfies this timely notice requirement. Actual notice will trump a lack of written notice.

However, the bar for an employer to prove prejudice is low. I have tried cases where the Commission determined the employer was prejudiced by late notice because the injured worker saw a doctor before notifying their supervisor.

The takeaway: Give written notice immediately. Don’t wait until you’re close to the 30-day deadline. You can tailor my sample work accident report to your needs.

Statute of Limitations

You generally have two years from the accident to file a claim with the Commission (Va. Code § 65.2-601). This means filing a formal claim with the Commission, not simply reporting the accident to your employer or even receiving voluntary payments. That doesn’t necessarily stop the clock.

The statute of limitations for an occupational disease claim depends on when you last worked for the employer and when you received notice that the condition is work-related.

Deadlines for reopening an existing award also differ, with several tolling statutes that apply.

You can learn about every deadline, every tolling rule, and what to do if you think you’ve missed one here: Workers’ Comp Statute of Limitations in Virginia.

Res Judicata or Collateral Estoppel

Finality is important in the law. If the Commission has already decided your claim or a specific issue in your case, you cannot continue to relitigate it by filing new claims for the same thing. The legal doctrines of res judicata and collateral estoppel say so. If you are unhappy with the deputy commissioner’s decision, file a timely request for review; if you are unhappy with the full Commission’s decision, file a notice of appeal with the Court of Appeals of Virginia.

4. Conduct Defenses: “Your Own Behavior Caused This”

These defenses live in Va. Code § 65.2-306. The statute places the burden of proof on the party asserting them – the employer – on every element.

Willful Misconduct and Safety-Rule Violations

I see this defense raised far more often than the facts justify.

To succeed, the employer must prove the rule was reasonable, you knew it, it existed for your benefit, the employer enforced it, and you intentionally violated it. Negligence – even gross negligence – is not willful misconduct that bars your case.

Raising this defense in discovery or at the hearing isn’t enough. The employer must give you and the Commission written notice of this defense, and the specific act it relies on, at least 15 days before your hearing under Commission Rule 1.10.

Read this article to learn how to attack each element, with examples of cases I won on this issue before the Commission: How to Overcome the Willful Misconduct Defense.

Self-Inflicted Injury

Rare, and I have never seen it succeed. In fact, I’ve seen insurers raise it only twice in my career, and never at trial, only in settlement discussions.

It tends to appear when the employee was already under investigation for something else, and the insurer theorizes the injury was staged to avoid being fired.

Intoxication or Use of a Non-Prescribed Controlled Substance

The insurer may have a successful defense to your case if it can prove that you were intoxicated or under the influence of drugs when you were hurt and that this contributed to the work accident.

A positive post-injury drug test may not be enough for the employer to prove this defense, though. More here: Post-Incident Drug Testing in Virginia Workers’ Comp.

Horseplay

Some states bar horseplay injuries. Virginia covers the innocent victim of a coworker’s horseplay. If you instigated it, the insurer will argue you stepped outside the course of your employment, and that argument has traction. The line between assault and horseplay is thin.

Misrepresentation on Your Job Application

An employer can defeat a claim if it proves you knowingly made a false statement about your physical condition when hired, relied on it in hiring you, and there is a connection between your injury and the misrepresentation. All three elements are required.

This defense has faded because the Americans with Disabilities Act bars most employers with 15 or more employees from asking about prior injuries before a job offer; if yours asked anyway, you may have an ADA claim on top of your comp claim.

5. Benefit-Limiting Defenses: “It Happened at Work, But We Don’t Owe This”

Most workers’ compensation litigation is not about whether the accident happened or is covered. It focuses on the defenses below, which can limit how long you receive benefits and which body parts are covered.

Incarceration

If you’re incarcerated while receiving workers’ comp payments, the law considers your incarceration as the reason for your loss of earning power. Therefore, the employer is relieved of responsibility to pay benefits while you’re in jail or prison. See Brooks v. M. Price Distributing Company, Inc., Claim No. 142-39-08 (1991).

Violation of Medical Restrictions

An employer is not responsible for an injury or the aggravation of an existing injury resulting from you knowingly violating medically imposed work restrictions. If you do something that exceeds your restrictions, such as lifting a weight, and then suffer an injury or a re-injury, the Commission may find that you put yourself in the position for a known injury and are liable for it.

Pre-Existing Condition

One of insurers’ favorite defenses. If you have a prior injury or pain complaints regarding the body part injured at work, or if your diagnostic imaging shows any degenerative findings, the insurance company may deny your claim.

Fortunately, Virginia law is on your side. An accident that aggravates, exacerbates, or flares a condition is compensable. And you should focus on developing medical evidence to that effect.

How the defense works, how to distinguish prior injuries, and the aggravation-versus-exacerbation distinction that drives settlement value: Pre-Existing Conditions and Prior Injuries in Virginia Workers’ Comp.

Refusal of Selective Employment

Under Va. Code § 65.2-510, an unjustified refusal of light-duty work that the employer procures for you within your restrictions suspends your wage-loss benefits for as long as the refusal lasts.

The employer must first prove a bona fide offer of a job suited to your restrictions. If it can, the question becomes whether your refusal is justified or unreasonable. Examples of a justified refusal include: the job exceeds your restrictions; the commute is unreasonable; or the offer is a sham.

If the Commission finds your refusal unjustified, you should try to cure it immediately by accepting the job or finding comparable work.

Do not refuse a light-duty offer without talking to a lawyer first; this is one of the few defenses where a single bad decision can cost months of checks.

Failure to Market Your Remaining Work Capacity

If your doctor releases you to light duty, your employer has no light-duty job available, and you are not already under an open award for wage-loss benefits, you must make a reasonable, good-faith effort to find work within your restrictions to receive temporary disability benefits. The Commission weighs your age, education, training, the nature and extent of your search, your intent, and the jobs available in your area. There is no magic number of applications, but you will likely lose on this issue if you go to a hearing without a job-search log. Register with the Virginia Employment Commission, keep a dated log of every contact, and apply for work you can actually do – not just your old job.

Learn more about job searching while seeking workers’ comp here.

Treatment or Disability Not Causally Related; Disability Not to the Extent Alleged

Three close cousins: the surgery your doctor recommends isn’t related to the accident; your work restrictions aren’t related to the accident; or the medical records don’t support the period of disability you’re claiming. These are won with records, not argument. Gaps in treatment, a light-duty release you never gave your employer, and inconsistent histories are what the insurer’s nurse case manager is looking for. A treating physician who writes “to a reasonable degree of medical probability” and explains why is what the Commission is looking for. If the dispute is about a denied test, surgery, or referral, see Medical Treatment Denials in Virginia Workers’ Comp.

Terminated for Cause

If you are fired for misconduct while working light duty, the insurer will argue that the behavior that led to the firing, not the injury, caused your wage loss.

The employer must prove the termination was justified and based on a wrongful act – not merely poor performance. Even if the employer proves it, the forfeiture isn’t always permanent; a worsening of your condition that takes you out of the labor market, or a later change in circumstances, can restore benefits. Get the termination paperwork and the real reason in writing immediately.

Refusal of Medical Treatment or Vocational Rehabilitation

Va. Code § 65.2-603 lets the Commission suspend benefits for an unjustified refusal of medical care or of reasonable and necessary vocational rehabilitation services the employer provides.

“Unjustified” is the key word. Generally, declining a high-risk surgery or one that has only a 50/50 chance of helping you heal completely is not an unjustified refusal. I have seen carriers allege refusal because a client wanted to ensure their safety; however, that type of allegation is unlikely to succeed. Attend your appointments, discuss your concerns with your doctor, and tell your lawyer if you plan to refuse recommended medical treatment. That way you can make a decision knowing the potential risks.

Vocational rehab deserves its own warning: cooperate, but understand the counselor works for the carrier. Depending on how aggressive the counselor is, don’t be surprised if you start hearing complaints about your efforts soon after the first meeting. In my experience, this tactic is meant to make you settle for less than you otherwise would.

Unauthorized Medical Treatment

Virginia’s panel-of-physicians system means the insurer pays for care from your authorized treating physician and that doctor’s referrals.

If you treat outside that chain without authorization or a Commission order allowing you to do so, don’t be surprised if the insurer refuses to pay the bills. That is true even if the treatment is reasonable, necessary, and related to your injury.

What the Defense Tells You About Settlement Value

I can usually tell how strongly the insurer feels about a particular defense to a workers’ comp claim by how many it raises and the details it provides to support it. I receive that information during discovery, through interrogatories and requests for admissions.

Raising one defense, such as willful misconduct, with a citation to the particular rule and copies of attendance sheets with your name on them for training on that rule has a greater effect than listing every defense on this page. Push back on each defense by asking for the specific facts relied on.

If the information is thin, the insurer is often hoping to raise enough doubt about your case’s strength to persuade you to settle.

Three Questions I Get About Defenses

Can the insurer raise a new defense at the hearing?

Not without consequences. Willful misconduct must be noticed in writing at least 15 days before the hearing under Rule 1.10, and the Commission expects employers to disclose their defenses in their written response before the hearing. A surprise defense not listed in discovery answers or on the pre-hearing statement is a reason to ask the Deputy Commissioner for a continuance or to exclude it.

Why is the insurer raising five defenses at once?

Because it costs them nothing to list them. Shotgun denials are normal. Most of the listed defenses will be abandoned before the hearing; the one the insurer actually believes is usually the one it presses you on at a deposition or gets an expert witness report on. Your lawyer’s job is to figure out which one that is.

Does a defense mean I’ve lost?

No. A raised defense is the insurer’s opinion. The Commission’s ruling is what matters, and you get it by filing a claim and going to a hearing. Many of the defenses on this page fail when the employer has to prove them under oath rather than in a letter.

Facing One of These Workers’ Compensation Defenses

If we accept representation, I’ll identify the defenses the insurer will raise, how worried you should be about each, and how to overcome them.

The consultation is free, and you owe nothing unless we recover benefits for you. Call or text (804) 251-1620 in Richmond or (757) 810-5614 in Hampton Roads or send me the letter through the free case review form.