Can You Win a Virginia Workers’ Comp Claim If You Don’t Know the Exact Date of Your Accident?

You may still recover Virginia workers’ compensation benefits even if you cannot remember the exact date of your workplace accident.

It is true that part of proving a compensable work injury in Virginia is identifying a specific incident at a reasonably definite time; however, an inability to remember the exact date does not necessarily defeat the claim if you can describe that event and when and where it happened.

I get this call often. An injured worker can tell me what they were doing when their back gave out, or when their knee popped. They can even describe the job site, what the project involved, and the coworkers near them. But they cannot remember if the injury happened on Tuesday or Wednesday. And someone – sometimes a friend or family member, other times the insurance adjuster – has told them you cannot get workers’ comp without knowing the exact accident date.

That advice is usually wrong when you can identify a specific work incident but cannot remember the exact date. This article explains what the Commission says about injured workers who cannot state the date their accident happened, when lack of knowledge of the date – or figuring it out later – may lead to a denial, and what you can do to strengthen your case when the insurer makes a big deal that you cannot remember the date.

What Virginia actually requires

To receive an award of benefits for a traumatic injury, you have to prove an injury by accident: an identifiable incident, at a reasonably definite time, causing an obvious sudden structural change in your body, connected to the job. I break each of those elements down on the compensable injury page.

The element at issue here is the second one – reasonably definite time.

The Supreme Court of Virginia explained what these words mean in Morris v. Morris, 238 Va. 578, 385 S.E.2d 858 (1989).

In Morris, the Court explained that an injured worker “is only required to fix the time of the occurrence with reasonable accuracy,” although the event causing the injury was “bounded with rigid temporal precision.” It gave an example in which an injured employee may know he fell from a ladder right before lunch without knowing whether he fell at 11:35 a.m. or 11:45 a.m. This level of precision is unnecessary: not everyone checks their watch or calendar constantly.

Since Morris, the Virginia Workers’ Compensation Commission has not been concerned with an exact date of injury. It has even confirmed compensability without deciding the date on which an accident occurred. If the Commission is satisfied that an employee suffered an injury by accident, it will not deny the claim simply because the employee is confused as to the exact accident date. Johnson v. Commerce Development, VWC File No. 175-68-41 (August 13, 1996) citing Mullins v. Dominion Coal Corporation, 68 O.I.C. 43 (1989).

The takeaway: Confusion about the exact date of the accident does not automatically mean that the Commission will deny your claim.

Three different problems that get called “I don’t know the accident date”

People describe all three the same way on an intake call. But they are not the same situation.

1. You know the event, but not the clock time. You know you felt your shoulder pop when lifting a piece of rebar off the truck. But you do not know if it happened at 9:15 a.m. or 10:15 a.m. This is the ladder example from Morris. It is not a problem. The Commission does not need you to testify to the minute the injury occurred. Knowing it happened sometime before lunch is good enough.

2. You know the event, but not the calendar date. You know exactly what you were lifting, where you were, and what you felt. But you waited a couple of days to get treatment, hoping the pain would go away. Now you cannot say whether the accident happened on the 10th or the 12th of the month. This situation creates more challenges than the first problem. Still, it is usually fixable – not with your memory, but with medical reports, attendance records, or witness testimony. More on that below.

One caution. There is a difference between not knowing which day it was and not knowing what happened. “The 10th or the 12th, unloading the truck” is a date problem, and you can solve a date problem. “Sometime that week, doing warehouse work” is not a date problem – it is a compensability problem because you have no identifiable incident, which puts you in the third category below. Narrowing the date is worth doing. Narrowing the event matters more.

3. You cannot point to any event at all. You took a job lifting packages a few weeks ago, and now your back hurts. Nothing specific happened. It’s just hard work. This situation often leads to a loss, but not because you cannot give an exact date. The problem here is that you cannot satisfy the “identifiable incident” prong of the compensability test. A claim based solely on gradually developing pain from repetitive work generally cannot meet Virginia’s injury by accident requirement. Different rules may apply to occupational disease claims.

How to prove a date you don’t remember

When preparing for your workers’ comp hearing or negotiating a work injury settlement, you want to frame the evidence as follows: “During the shift, when I did this specific thing, I felt this symptom.” That is the kind of testimony that can help you establish a compensable claim – even when you cannot give a precise date or time for the accident.

Identify the incident. That is the most important thing. The clock or calendar date is secondary.

That said, you should still try to identify the exact accident date. Fortunately, you can usually determine the date from evidence other than your memory. I recommend obtaining and looking at the following:

The first medical record. Urgent care and ER intake notes usually capture the medical history. I regularly see records that state – hurt at work three days ago, pain present since an incident at work one week ago. These notes carry weight because medical providers usually write them without thinking about litigation.
Payroll, timesheets, and badge swipes. These documents are usually more helpful if you’re paid hourly rather than salary. For most hourly employees, the employer will keep timesheets and attendance records. You can use this paperwork to narrow down the days you worked and the accident date. If you’re a salaried employee who swipes a badge to enter the workplace, your badge entry report may help you with the date.
Employer records. Truckers, delivery drivers, and employees who go to different job sites (for example, electricians who make house calls) may be able to determine the exact accident date through dispatch logs, work orders, and bills of lading. If you remember the route where you got hurt, you can use this paperwork to narrow down the accident date.
Your phone. Texts to your spouse or a coworker about the injury. Photos with timestamps and location data. A search history at 11 p.m. for “shoulder pain won’t go away.” Each of these things can help.
The employer’s own paperwork. Employers who take safety seriously usually document accidents as soon as you report them. Ask for a copy of this injury report.
Coworkers. Talk to the people who were with you when you were injured. They may remember the date. Even if they do not, they can help you prove that an identifiable incident occurred at some time.

Whatever you do – don’t lie or draw a hard line on the date when you do not remember. This undermines your credibility from the start, and you will need that credibility on other issues.

We help injured workers develop the facts needed to strengthen their claims. Free Case Review or call 804.251.1620.

What the adjuster does with an uncertain accident date

The days after a work injury are confusing. You are hurt, worried about your job, and trying to remember details you never expected to need.

An adjuster can use that against you.

When your report to the employer doesn’t include a clear date, the adjuster may compare three things: what you said, what the employer wrote down, and what the first doctor’s note says. If those three do not match, the claim gets flagged.

The insurer may also ask you to give a recorded statement.

During that interview, the adjuster may lay a trap. They may ask you for the date the work accident happened. You don’t know, so you guess, thinking it is better than saying you cannot remember.

That guess becomes a much bigger problem if the employer’s timesheets show you were off that day. I’ve seen a Deputy Commissioner deny a case because the injured worker double-downed on a specific accident date even though the documents showed he did not work that week.

Your injury has not changed. But your file now has an inconsistent statement that the insurer may argue proves you are not a credible witness.

Overcoming an unknown accident date is easier than overcoming a Deputy Commissioner’s finding that you do not make a credible witness. The latter almost always leads to denial of some or all of your claim.

So if you do not know the date, say you do not know. Then say what you do know, so that you can narrow down the window of when the injury happened.

Warning: Never guess an exact date during a recorded statement with an insurance adjuster. An inaccurate guess that conflicts with timesheets or badge swipes will be used by the insurer to challenge your credibility before a Deputy Commissioner.

What to do now

Do the following if you cannot remember the exact date:

Write down everything you can remember about the event, including where you were, what you were doing, who else was nearby, and what you felt.
Request your medical records to see if the early office visit notes mention the exact date or an estimate of when your symptoms started and why.
Ask for your timesheets, or pull them up online if you have access through an app.
Do not guess at a date in a recorded statement.
If you are near the two-year filing deadline (Virginia Code Section 65.2-601), do not wait until you have reconstructed the date perfectly. Speak with a Virginia workers’ compensation attorney immediately about filing a claim and accurately describing the date or date range the evidence supports.

A missing date is a proof problem, and attorneys often solve proof problems. What cannot be fixed is having no incident at all or being characterized as a liar by the Commission. Most workers who think they have a date problem actually have a solid incident and bad recordkeeping.