What is the Workers Compensation Statute of Limitations in Virginia?


The clock starts after an employee is hurt at work. And as an injured employee it is important that you know the time limits associated with your workers compensation case in Virginia.


The amount of time you have to file a Virginia workers compensation claim depends on the type of claim you have. There are three types of claims that can be brought under the Virginia Workers Compensation Act: (1) accidental injury (also known as “injury by accident”); (2) occupational disease; and, (3) death benefits.


This article explains the Virginia workers compensation statute of limitations and how it applies to your case. If you have any questions, or are looking for legal representation, contact Virginia workers compensation lawyer Corey Pollard for a free consultation: 804-251-1620. We’ve helped hundreds of injured workers throughout Virginia win at their workers compensation hearing and negotiate a workers comp settlement.


Understanding the Time Limit on Filing a Workers Compensation Claim in Virginia


Let’s take a closer look at the time limit on filing a workers comp claim in Virginia for each type of case:


Statute of Limitations for Accidental Injury Claims in Virginia


In Virginia an employee who is injured on the job has 30 days from the date of injury to notify his or her employer of the accident and injuries. You should give this notice in writing and keep a copy for yourself. If, however, your supervisor witnessed the work accident or found out about it soon after it happened, written notice is not necessary. Read our sample letter reporting your work injury for ideas on how to give notice of the accidental injury.


Failure to provide your employer with notice of the accidental injury may bar you from bringing a workers compensation claim and pursuing benefits if the employer proves it was prejudiced by the lack of notice. To prove that it was prejudiced by your failure to give timely notice of the accidental injury, the employer must present specific evidence of how the delay harmed its ability to defend your claim.


In Virginia you must file your workers compensation claim within two (2) years of the accidental injury. You do not have to ask for a hearing or prove disability within a 2-year period, but you must file a workers compensation claim and have some evidence of disability within the limitations period to protect your legal rights. This type of claim is called an assertion of rights.


By filing a workers compensation claim within two years of your accidental injury you put the employer on notice of your work injuries. This gives the employer an opportunity to investigate your claim to determined if you’ve been injured and how you were injured, and to tell the Commission whether it accepts your claim.


The time for filing a workers compensation claim is rarely extended. Even if your employer knew of your accident and its insurance company made voluntary payments to you or on your behalf, you will still forfeit your legal rights if you fail to file a claim within the two year workers compensation statute of limitations.


Statute of Limitations for Change in Condition Claims in Virginia


The Virginia workers compensation statute of limitations for filing a change in condition claim is two years from the last day for which compensation was paid pursuant to an Award Order. To determine the applicable deadline in a change in condition application you will have to review your Award Orders and payments made to you. If you have received multiple Award Orders in your case, make sure you review the most recent one.


If you returned to light duty work for the same pre-injury employer, then you may be able to toll the change in condition statute of limitations for up to two more years. At most the statute of limitations for a change in condition claim is four years.


A word of warning: The 90-Day Rule applies to Virginia workers comp change in condition claims. This rule 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 prior to the date you filed the change in condition claim. So don’t delay, file your change in condition application right away or else this workers comp deadline may limit the amount of temporary total disability payments you receive.


Statute of Limitations for Occupational Disease Claims in Virginia


Determining the Virginia workers compensation statute of limitations for occupational disease claims is more complicated.


The most important date is the date the employee is diagnosed with the disease and told that it is related to work. Communication of the disease is the “date of accident” for purposes of 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 date 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.


Determining the date of diagnosis and communication is difficult. An experienced workers compensation attorney can help.


To receive death benefits you must satisfy three different time limitations under the Virginia Workers Compensation Act.


First, the injured employee must have filed a claim for benefits within two years of the accidental injury.


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



Statute of Limitations for Permanent Partial Disability Claims in Virginia


An injured employee must file a claim for permanent partial disability (PPD) within three years of the date compensation was last paid pursuant to an Award Order.


If you suffered a compensable injury by accident but received a Medical Only Award because you suffered no wage loss (for example, your employer provided light duty work within your limitations), you have three years from the date of the accidental injury to file a claim for PPD benefits.


Statute of Limitations after Permanent Partial Disability Benefits Have Been Paid in Virginia


The payment of permanent partial disability benefits usually marks the end of the indemnity portion of a workers compensation claim. 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 Act to file your claim.


Exceptions to Time Limits for Filing for Virginia Workers Compensation – Tolling the Workers’ Comp Statute of Limitations


By hiring a workers compensation attorney soon after your accidental injury, you can avoid having your claim turn into an important case on the workers’ compensation statute of limitations. The goal is to avoid giving the employer and its insurance carrier another possible defense to your claim.