You tell your employer about the work-related injury as soon as it happens. Then, you follow up with a written notice using my sample workplace accident report.
So far, you have satisfied the first steps in the workers comp claim process.
But you are not finished.
Now, you must file a workers compensation claim with the proper government agency within a specified claim period, or your claim will be time-barred.
This period is the workers comp statute of limitations.
After reading this article, you will understand the statute of limitations for Virginia workers compensation that applies to your case. Then, you can act to keep your right to benefits.
Or, if you are reading this article after missing the statute of limitations, you will learn when the law tolls the limitation period by statute or under common law doctrines like estoppel, imposition, or de facto award.
Keep reading to learn more.
If you have workers comp questions or want to speak with a top-ranked lawyer who has negotiated millions of dollars in workers compensation settlements, fill out this form or call (804) 251-1620 or (757) 810-5614.
Legislatures enact statutes of limitations to give the parties and potential parties certainty about when a cause of action ends. These statutes limit employers’ exposure to workers’ compensation liability to a certain fixed period after an injury occurs or a doctor diagnoses an illness.
The underlying rationales for this purpose are:
As an injured employee or the dependent of a deceased worker, you have two ways to prevent the workers compensation statute of limitations from expiring.
First, you can file a claim for benefits with the Workers Compensation Commission within the prescribed time.
Second, the Commission can enter an award order after receiving stipulations or a signed Agreement to Pay benefits form from the parties.
Giving written notice of the incident to the employer, even completing paperwork on your employer’s letterhead and submitting it to your boss or Human Resources, does not count as a claim filing that stops the statute of limitations from running.
No.
The workers comp statute of limitations for initial claims is jurisdictional. Unless you, as the claimant, show that you filed the original claim before the limitation period expired, the Workers Compensation Commission does not have the power (jurisdiction) to decide your case.
These court holdings mean that (i) the employer and insurer may succeed on a statute of limitations defense even if they do not state their reliance on it in interrogatories or raise it at trial, and (ii) the parties cannot use an agreement to extend the deadline to file to grant jurisdiction to the Commission.
However, once the Commission enters an award that becomes final, it retains jurisdiction. Therefore, the employer and insurer may waive the statute of limitations for change in condition claims. Waiver is the intentional surrender of a right when you know facts giving rise to the right.
The law has different statutes of limitations based on whether you suffer an injury by accident, develop an occupational disease, or have problems with another body part as a compensable consequence of the initial injury. In addition, the Workers Compensation Commission has different time limitations depending on whether you file an original or subsequent claim (a change in condition application). Further, a different deadline applies to claims for permanent partial disability (PPD) benefits.
The following sections explain the workers comp statute of limitations for your claim.
In Virginia, you must file an initial claim for an injury by accident with the Workers Compensation Commission within two years after the accident. Otherwise, the right to compensation, including lifetime medical treatment, is forever barred.
The most common statute of limitations for workers compensation claims is two years, and many states adopt this deadline.
Remember to list all injured body parts in the initial claim form.
You must satisfy the two-year statute of limitations for each injury claimed.
Otherwise, the employer and insurer may argue that benefits for one of your injuries are time-barred because you did not include that specific injury in any original claim within two years of the accident date.
The disease you develop determines the statute of limitations for workers comp claims based on an occupational illness instead of a traumatic incident.
The statute of limitations for an original claim for an occupational disease not listed separately in the statute is two years after the diagnosis is communicated to you or within five years after your last exposure is work, whichever occurs first. Examples of non-specified diseases that fit in this category include ordinary diseases of life (carpal tunnel syndrome, hearing loss, mold exposure, PTSD), heart disease, hypertension, and non-specified lung diseases,
Below is the list of limitation periods for specific diseases named in the statute. The statute’s exact language is in Code Section 65.2-406.
Some occupational diseases do not have a statute of limitations for filing a claim.
These conditions include the following:
You or the employer may file a change in condition claim while your case remains open. When the employer files such a claim, the Commission calls the pleading an employer’s application for a hearing.
For example, you may file a change in condition claim when the insurer denies medical care even though you have a lifetime medical award, you have additional wage loss due to disability from the work accident, or you seek payment for permanent partial disability.
On the other hand, an employer’s application for a hearing typically aims to reduce your award or stop benefits altogether.
Below is the workers comp statute of limitations for different types of change in condition claims. As you will see, the last date you were entitled to compensation under an award, not the last date you received payment or the employer/insurer issued the check, is critical to determining when the statute of limitations expires in many situations.
Even if you have a medical award, the insurer may deny prescribed medical care for your work injury or refuse to answer requests to authorize treatment.
You may file a claim seeking the authorization and payment of medical care at any time; no statute of limitations applies because an award for medical benefits lasts your lifetime.
A severe injury to one body part may cause you to rely more on another.
For example, a right biceps tendon and rotator cuff tear may lead you to use the left shoulder more. Over time, this overuse may cause a left shoulder injury requiring surgery.
Fortunately, as long as you met the statute of limitations for your initial injury, there is no time limit on seeking medical benefits for a compensable consequence injury.
You may qualify for PPD benefits if you have permanent impairment of the injured body part after reaching maximum medical improvement (MMI). This benefit is also available if the industrial accident causes amputation, vision loss, disfigurement, or hearing loss.
The time limit to seek compensation for permanent partial disability is three years from the accident date. Or if you received an award of compensation, the statute of limitations for PPD extends to three years from the date you last received compensation under an award order.
Many workers comp claims follow a similar path: a period of total disability while you heal, then a release to light duty, and finally, a decision to give permanent restrictions or release you to full duty.
But not all.
Your road to recovery may include periods of complete disability, then partial disability, then total disability, then partial disability, and so on.
Further, your employer may be able to accommodate some restrictions but not others, leading to periods of employment and unemployment.
Therefore, your entitlement to wage loss benefits may vary, not following a line.
As your eligibility changes, you may seek to reopen a workers comp claim for income replacement benefits. This claim is called a change in condition application.
If you have yet to receive PPD benefits, the workers compensation statute of limitations for a change in condition claim seeking wage loss is two years (24 months) from the date you last received payment under an award.
On the other hand, if the Commission awarded PPD benefits, you have one year from the date you last received payment to seek additional temporary total or partial disability benefits.
However, although not considered a statute of limitations, a separate deadline – the 90-day rule – limits how far back you can receive compensation under a change in condition claim.
Finding out your workers comp claim is time-barred can be frustrating and devastating.
Before you give up hope, check to see if the employer or insurer did something to toll (pause) the statute of limitations or if the Commission may excuse the delay in filing.
The following sections explain exceptions to the workers comp statute of limitations that may allow you to keep your claim for benefits alive.
Your employer (or the insurer or claim administrator) must file an accident report (the first report of injury) with the Workers Compensation Commission within a prescribed period.
If it does not, the statute of limitations pauses until the employer files the accident report as required by law. However, this tolling only occurs if you prove the employer’s failure prejudiced you, the Commission did not send you a guide as the law requires, and you did not receive notice through some other form. And you have the burden of proving these items.
In 2020, the General Assembly amended Code Section 65.2-602, Tolling of statute of limitations, to toll the statute of limitations when an employer or insurer pays wages or covers medical expenses more than six months after the accident date but before the two-year statute of limitations expires.
Specifically, the statute of limitations stops until the last day the employer or insurer pays wages, indemnity benefits, or medical treatment during this period.
Therefore, if you received voluntary benefits but the statute of limitations expired, I recommend asking the defendants for a payment ledger. Based on the last payment the defendants made, you might extend the time limit from six months to two years after the occupational injury.
Under the doctrine of estoppel, an employer cannot assert a statute of limitations defense if you provide clear and convincing evidence (a higher burden of proof than usual) that you did not file a claim because the employer misrepresented or hid material facts.
For example, evidence that the employer told you it had turned in a claim for benefits to the Commission and would take care of your bills might keep the employer from defeating your claim because you filed a claim after the statute of limitations. The employer’s behavior in this situation constitutes fraud, which is a false representation or omission of a material fact reasonably calculated to encourage you not to file a claim with the Commission.
On the other hand, the Commission will not apply equitable estoppel to save your claim from a statute of limitations defense based on the employer’s failure to tell you the deadline to file a claim. Nor will it find the employer estopped from raising a time limits defense based on voluntary medical and wage loss benefits.
The doctrine of imposition gives the Workers Compensation Commission the power “in appropriate cases to render decisions based on justice shown by the total circumstances even though no fraud, mistake, or concealment” exists.
Imposition focuses on the employer’s superior knowledge of the Workers Compensation Act or economic leverage to induce an employee not to file a claim before the statute of limitations expires.
Proving imposition is challenging.
For example, you may need facts showing the employer paid part of the benefits available under the law, plus a threat to terminate your employment if you filed a claim.
Any wages the employer pays you that equal or exceed your pre-injury when you are physically unable to return to your pre-injury work due to the compensable injury count as compensation under an award (for a period not exceeding 24 consecutive months).
Therefore, you can extend the statute of limitations to file a change in condition claim by 24 months.
Here is an example:
Suppose you are a nurse who suffers a work-related back injury that requires spinal fusion surgery.
You have total disability for three months and receive an award of compensation for this closed period.
Then, after receiving permanent restrictions for the fusion, your employer provides a sedentary (seated) position, making the same amount of money you earned before the accident.
Three years later, the employer says it can no longer accommodate your restrictions and terminates your position.
Usually, the workers comp statute of limitations would have expired because you have not received compensation under an award in more than two years.
However, the wages you earned while working light duty count as compensation under an award, allowing you to file a change in condition claim before the extended statute of limitations expires.
Code Section 65.2-528 pauses the statute of limitations when a person is incapacitated (mentally or physically) or under eighteen years of age when the person has no guardian or conservator.
You may have the best claim in the world. Still, filing a claim after the worker’s comp statute of limitations may cost you a lot of benefits.
It is challenging to keep track of time limits when experiencing workers compensation litigation for the first time and trying to heal.
But you do not have to deal with this alone.
My law firm can help you satisfy all workers compensation deadlines or determine whether an exception to the statute of limitations applies.