Workers Comp Claim Deadlines and Time Limits in Virginia
You Must File a Claim Before the Statute of Limitations Expires to Protect Your Rights under Workers Compensation Laws
Is There a Statute of Limitations for Workers Comp Claims?
Several types of workers compensation benefits are available if you suffered an injury on the job. But you must act quickly. Specific time limits apply to your workers comp case.
These time limits are called statutes of limitations. And they are an essential part of the workers comp claim process. Filing a work injury claim within the time limits is one of the most important things you can do after an occupational accident.
The statute of limitations for your workers comp case depends on the type of claim you have. There are six types of claims under workers compensation laws:
This article explains the statutes of limitations for workers compensation in Virginia and how to determine what one applies to your case. Failing to file a claim within the time limit prescribed by the statute of limitations may bar your right to benefits even if you have a valid case.
What is the Reason for the Statutes of Limitations in Workers Comp?
Statutes of limitations aim to compel you to exercise your legal right within a reasonable time.
The belief is that the sooner you file a claim, the more readily available the evidence to all interested parties – you, your employer, your doctors, and the insurer.
Understanding the Statute of Limitations for Your Particular Workers Compensation Claim
Now that you know how necessary filing a claim before the statute of limitations is, we will look at what specific deadline applies to your application.
There is a Two-Year Statute of Limitations for Virginia Workers Comp Claims Based on Accidental Injury
Two different time limits apply to claims for accidental injuries on the job. One is a deadline, and the other is a statute of limitations. Both are important.
Deadline for Giving Notice to Your Employer
In Virginia, you have 30 days from the injury date to notify your employer of the accident and injuries. Give notice in writing, keeping a copy for yourself.
Your employer has a valid defense to your workers comp claim if you fail to give notice. The Workers Compensation Commission will deny your request for benefits if the employer presents specific evidence of how the delay in notification prejudiced it.
However, there might be a loophole if you failed to give written notice within 30 days of your injury. The insurance carrier could not raise a time limitation defense if your employer had actual notice of your work accident.
If you are reading this article within 30 days of your injury, read my sample letter reporting your work injury for ideas on how to give notice of the incident.
Statute of Limitations for Filing a Claim with the Industrial Commission
In Virginia, you must file your workers compensation claim within two (2) years of the injury. Filing a timely claim puts the employer on notice of your industrial accident and injuries. And it allows the insurer or third-party claim administrator (Sedgwick, Gallagher Bassett, ESIS, etc.) to investigate your claim.
There is a Three Year Statute of Limitations for Permanent Partial Disability Claims under Workers Comp
The statute of limitations for permanent partial disability (PPD) benefits is longer than the statute of limitations for wage loss and medical benefits for work injuries. And the start date for calculating the statute of limitations may differ from the start date for original claims for benefits.
You must file a claim for PPD benefits within three (3) years of the date compensation was last paid under an Award Order.
But some of you may have a Medical Only Award, not an Award for wage loss replacement benefits. This situation happens when your employer offers light duty work within your restrictions and pays your regular wages.
If you have not received an Award for wage loss benefits, you must file a claim for PPD benefits within three years of the date of your injury.
Workers Compensation Statute of Limitations for Change in Condition Claims in Virginia – Two Deadlines for Claims for Additional Indemnity Benefits; No Deadline for Claims for Medical Care
A change in condition claim is something you file when your ability to work has changed or if the insurance carrier is denying specific medical treatment.
For example, if your doctor releases you to full duty, then later gives you restrictions, you may file a change in condition claim seeking temporary partial disability.
Under the Workers Compensation Act, the statute of limitations for a change in condition claim seeking additional indemnity (wage loss) benefits is two years from the date you were last paid under an Award Order. You must keep track of the Commission’s Award Orders and the payments made to you to determine the correct deadline.
Extending the Deadline: Tolling the Workers Comp Statute of Limitations for Change in Condition Claims
In some situations, the two-year statute of limitations for change in condition claims seeking indemnity benefits is extended.
If your employer offers light-duty work after an industrial injury and continues to pay your regular wages, you may be able to toll the change in condition statute of limitations for up to two more years.
Tolling is a legal doctrine that pauses the statute of limitations. It allows you to file a claim even after the regular statute of limitations has run.
Here is how the tolling of the statute of limitations works in this situation:
Say you suffer a back injury and receive work restrictions that prevent you from lifting more than 20 pounds. Your employer may provide a stationary position within your limitations. If you continue working light duty for three years, then get a lumbar discectomy or spinal fusion to correct a herniated disc, you may be able to file a change in condition claim that satisfies the statute of limitations. The wages you received while working light duty are considered compensation paid under an award.
Watch Out for the 90-Day Rule!
A word of warning: The Workers Compensation 90-Day Rule applies to change in condition claims.
This Rule, which is a deadline, states that if you file a change in condition claim for additional wage loss benefits, you can only receive retroactive benefits as far back as 90 days before the date you filed the change in condition claim. Do not delay, submit your change in condition application right away, or else this workers comp deadline may limit the amount of wage loss benefits you receive.
Workmans Comp Statute of Limitations for Change in Condition Claims after You Receive Permanent Partial Disability Benefits
The payment of permanent partial disability benefits usually marks the end of the indemnity portion of the claim.
There are two reasons for this.
First, permanent partial disability benefits are not available until you reach maximum medical improvement.
Second, permanent partial disability benefits are not payable when you are receiving temporary total disability. Except in specific circumstances, such as an amputation injury or spinal cord or neck trauma causing paralysis.
But if your condition worsens or changes, after receiving benefits for permanent impairment, you have one year from the date compensation was due under the Workers Compensation Act to file your claim.
Workers Comp Statute of Limitations for Occupational Disease Claims in Virginia
Determining the workers compensation statute of limitations for occupational disease claims in Virginia is more complicated than deciding the time limitations for filing an accidental injury claim.
The most important date is when you are diagnosed with the disease and told that it is related to work. Communication of the disease is the date of the accident for filing an occupational disease claim.
Below are the statutes of limitation for occupational disease claims in Virginia:
Coal Worker’s Pneumoconiosis: You must file a claim within three years from the date of diagnosis of the disease as category 1/0 or greater, or within five years of the last workplace exposure, whichever happens first.
Byssinosis: You have two years from the date the disease is first communicated to you, or seven years from the last time you were exposed at work, whichever occurs first, to file a claim for byssinosis.
Asbestosis: You have two years after a diagnosis is first communicated to you to file a claim.
Ordinary Disease of Life (Carpal Tunnel Syndrome; Hearing Loss; Mold Exposure): You have to file a claim within two years after the diagnosis is communicated to you or within five years after your last exposure at work, whichever occurs first.
Other Occupational Diseases: You must file a claim within two years of when the diagnosis is first communicated to you or within five years of your last exposure, whichever occurs first. This includes claims brought under the police and firefighter heart/lung presumption.
As you can see, retirees are at risk of missing the statute of limitations. If you retire because of symptoms related to your occupational disease, then get diagnosed several years later, the statute of limitations for your occupational disease claim may have passed. The General Assembly needs to fix this, and claimants’ attorneys are lobbying for a new law that is fairer.
Determining the date of diagnosis and communication is difficult. An experienced workers compensation attorney can help.
Workers Compensation Statute of Limitations for Permanent and Total Disability Benefits (Permanent and Total Incapacity)
Permanent and total disability benefits are wage loss benefits available to workers who suffer catastrophic injuries. In workers comp, a catastrophic injury is:
A. An injury causing the loss of use of two or more body parts in the same accident;
Permanent and total disability benefits are payable after you have received 500 weeks of temporary total disability payments.
The statute of limitations for permanent and total disability is three (3) years from the date compensation was last paid under an award.
Workers Comp Statute of Limitations for Death Benefits in Virginia
Some work-related injuries can lead to death. Death benefits might be available to dependent family members if workplace injury or occupational disease results in the employee’s death.
To receive death benefits, you must satisfy three different time limitations under the Workers Compensation Act.
First, the injured employee must have filed a claim for benefits within two years of the accidental injury. The deceased worker must have satisfied the statute of limitations.
Second, the injured worker must have died within nine years of the accidental injury or diagnosis of an occupational disease.
And third, the family member seeking death benefits must file a claim for benefits within two years of the worker’s death.
If the death was caused by coal worker’s pneumoconiosis or an occupational disease, you have three years from the date of the worker’s death to file a claim for benefits.
Does the Statute of Limitations Expire if I Do Not Have a Trial or Receive a Decision Within Two Years of the Date of Injury?
No.
You do not have to ask for or go to a workers compensation hearing within two years of the date of your injury to satisfy the statute of limitations. Nor do you need to have resolved your case – by Workers Compensation Award Letter, a settlement with open medical, or an agreement with a cash buyout of future medical – within two years of the date of injury.
All the Workers Compensation Commission requires is that you file your claim within the statute of limitations. You may even ask that your application not be referred for a trial. When you do this, your request is called an Assertion of Rights.
Exceptions to Time Limits for Filing for Virginia Workers Compensation – Tolling the Workers Comp Statute of Limitations Generally
Are you out of luck if you have waited until more than two years after your accidental injury to file a workers compensation claim for benefits?
Usually, the answer is yes. But there are exceptions. If your case falls within one of these categories, you may be able to get around the applicable time limit for filing a workers comp claim.
Va. Code Section 65.2-602, entitled Tolling of Statute of Limitations, explains the exceptions to the statutes of limitations for workers compensation:
In any case where an employer has received notice of an accident resulting in compensable injury to an employee as required by § 65.2-600 and, whether or not an award has been entered, the employer has paid compensation or wages to such employee during incapacity for work, as defined in § 65.2-500 or 65.2-502, resulting from such injury or the employer has failed to file the report of said accident with the Virginia Workers’ Compensation Commission as required by § 65.2-900, or otherwise has under a workers’ compensation plan or insurance policy furnished or caused to be furnished medical service to such employee as required by § 65.2-603, the statute of limitations applicable to the filing of a claim shall be tolled until the last day for which such payment of compensation or wages or furnishment of medical services as described above is provided and that occurs more than six months after the date of accident. However, no such payment of wages or workers’ compensation benefits or furnishment of medical service as described above occurring after the expiration of the statute of limitations shall apply to this provision. In the case where the employer has failed to file a first report, the statute of limitations shall be tolled during the duration thereof until the employer filed the first report of accident as required by § 65.2-900. In the event that more than one of the above tolling provisions applies, whichever of those causes the longer period of tolling shall apply.
This statute, revised by the General Assembly in 2020, adds additional time to the statute of limitations. I expect the Workers Compensation Commission will provide further clarification through judicial opinions.
In other words, you may be able to extend the statute of limitations for filing a claim if:
You gave timely notice of the accident to your employer;
Your employer continued to pay your regular wages while you were disabled from work or failed to report your injury; and,
Your employer’s actions prejudiced you.
This is a difficult test to satisfy because it requires a showing that your employer used superior knowledge or its economic advantage to deprive you of benefits available under the Workers Compensation Act.
Usually, the Commission sends a Notification of Rights letter to an injured employee when the employer or its insurance carrier reports the accident. If the Commission sent a copy of this letter to you, and there is no evidence that the United States Postal Service returned the message, you are unlikely to win your argument that the statute of limitations should be tolled.
Are the Statutes of Limitations Satisfied or Tolled if I File a Claim with My Employer or Its Insurer or Third Party Administrator?
No.
The only way to satisfy the applicable statute of limitations for workers compensation in Virginia is to file a claim with the Workers Compensation Commission. Filing a claim with your employer or its insurer does not affect the time limits.
Do Not Miss the Deadline for Filing for Workers Comp. Call Me for Help Satisfying the Virginia Workers Compensation Statute of Limitations.
When it comes to getting the benefits you deserve, meeting the applicable workers comp deadlines and time limits are just as important as proving the merits of your case. Do not forfeit tens of thousands of dollars in income and medical attention because the statute of limitations expired.
Corey Pollard is a top-rated personal injury attorney focused on recovering monetary damages for injured workers and accident victims. He has secured over $50 million for clients in Virginia workers' compensation, Social Security disability, traumatic brain injury (TBI), spinal cord injury (SCI), product liability, and construction accident cases.
