Common Workers Compensation Defenses Raised by Insurance Companies in Virginia


In Virginia you are entitled to workers compensation benefits if you sustain an injury by accident arising out of and in the course of our employment. These benefits are paid through your employer’s workers’ compensation insurance company.


After you file a claim for workers compensation benefits, the Workers Compensation Commission will order your employer and its insurance company to respond. The insurance company will either offer you award agreement forms or state that it is denying your claim.


Unfortunately the insurance company does not have to list all the reasons it is denying your claim. Usually you will need a workers compensation attorney to issue discovery, such as interrogatories and requests for production of documents, to determine the exact reasons the insurance company is defending your claim.


This article provides a brief overview of common workers compensation defenses raised by insurance companies in Virginia. Click on the links to learn more about that specific defense and how it may relate to your case. Then call Corey Pollard for a free strategy session regarding your rights under Virginia workers compensation.


Common Strategies for Defense of Workers’ Compensation Claims in Virginia


Employer Not Subject to the Workers Compensation Act


Most of you – roughly 97% – work for employers who are required to purchase workers compensation insurance in Virginia. But some of you are not covered by Virginia workers’ comp – either because your employer is not required to provide coverage or because of the nature of your employment.


A. Fewer Than Three Employees


The Virginia Workers’ Compensation Act does not apply to employers with fewer than three regular employees in Virginia. The employer has the burden of proving that it had less than three employees working in Virginia when you were injured.


If your employer’s “established mode of operating the business” regularly required three or more employees, but it had fewer than that, you may still be entitled to workers’ comp benefits. See Perry v. Deslisle, 46 Va. App. 57 (2005).


B. Casual Labor


You are not entitled to workers’ comp benefits if the Commission finds that you were hurt while engaged in casual labor. Casual labor is defined as work that is not normally performed by the employer. For example, a roofer who is hurt while performing work on a church is engaged in casual labor for the church and is not an employee of the church.


C. Domestic Servants


Domestic servants are not covered under the Workers’ Compensation Act.


D. Farm Laborers


The Workers’ Compensation Act does not cover farm and horticultural laborers, unless the employer has three or more full-time employees.


Failure to Give Notice to Your Employer


In Virginia you must give written notice of the work accident and injuries to your employer within 30 days of the date of the accident. If you don’t, and the employer can prove that it was prejudiced by your failure to do so, then you may be barred from receiving benefits.


We recommend giving written notice of your accident to the employer as soon as possible – on the day of the accident if possible. Only if your medical condition requires emergency treatment should you wait to give notice. And even then you should give notice in writing as soon as you’re physically and mentally capable of doing so.


The longer you wait the more likely it is that the insurance company will deny your claim and require you to go to a workers compensation hearing to prove your right to benefits. Insurers see any delay in reporting as a sign that your accident may have happened when you were off the clock.


No Employment Relationship Between You and the Employer


The Workers’ Compensation Act applies only to employees. An independent contractor is not entitled to workers’ compensation benefits. An injured worker’s status as a covered employee or an uncovered independent contractor is a frequent dispute in workers’ comp cases, especially those involving construction accidents.


Whether or not you are an independent contractor is based on the actual relationship you have with the employer, not any paperwork you sign with the employer. So even if you signed a contract stating that you are an independent contractor you may still be eligible for workers comp benefits after an on the job injury.


The Commission will consider multiple factors when deciding whether you were an employee or an independent contractor. Who had the power to direct and control your work is the most important factor. Other factors include the right to hire, the right to fire, and the obligation to pay wages.


You Did Not Suffer an Injury


You have suffered an injury “when a lesion or change in any part of the system produces harm or pain or a lessened facility of the natural use of any bodily activity or capability.” If your medical records show that you reported pain and other symptoms, but had no bruising, swelling, fracture, tearing, sprain, bleeding, or other physical manifestations obvious to the eye or to diagnostic imaging, then the insurance company may defend that you did not sustain an injury by accident.


An injury to your reputation, such as through defamatory statements, is not an injury under the Workers’ Compensation Act.


You Did Not Suffer a Work Accident


An injury by accident is defined as a sudden event that causes an obvious structural or mechanical change to your body. Gradually occurring injuries, or those caused by repetitive motion trauma, are not covered under Virginia workers’ comp.


Your Psychological Injury was Not Accompanies by an Obvious Sudden Shock or Fright


It is difficult to win a claim for psychological injuries under the Virginia Workers’ Compensation Act. The only exception is if you allege depression, anxiety, or PTSD arising out of your underlying physical injury.


When an “injury is strictly psychological, it must be causally related to a physical injury or be causally related to an obvious sudden shock or fright arising in the course of the employment.” Chesterfield County v. Dunn, 9 Va. App. 475 (1990). An emotional problem caused by a physical injury may be covered.


Mental health conditions caused by workplace stress, conflicts with supervisors, or disagreements over managerial decisions are not covered under the Workers’ Compensation Act.


You Have a Pre-Existing Condition


This is a favorite defense of workers compensation insurance carriers. And one that we are often able to beat them on.


If you have a prior injury or preexisting condition then you can rest assured that the insurance company will blame your ongoing disability or need for medical treatment on that condition and not your recent injury by accident. But if you’re able to prove that your injury aggravated or worsened your condition then you can receive benefits.


Your Injury Did Not Arise Out of the Employment


Your accident must arise out of the employment for you to receive workers’ comp benefits. “An accident arises out of the employment when there is a causal connection between the claimant’s injury and the conditions under which the employer requires the work to be performed.” United Parcel Serv. of Am. v. Fetterman, 230 Va. 257 (1985).


The employer and its insurance carrier may argue that your injury arose out of a risk to which the general public was exposed, not one that was specific to your employment.


You Cannot Explain What Caused Your Accident


Because you have the burden of proof in your workers’ comp case, you must be able to show why your accident happened. For example, if you don’t know why you slipped and fell, the Commission will likely deny your case. On the other hand, you will likely win your case if you can credibly explain that you slipped on liquid.


Your Injury Did Not Arise in the Course of Your Employment


The employer and its insurance company may defend your claim on the basis that you were injured when you deviated from the employment or while coming or going to work. An experienced attorney can help you fight back against this defense.


Fraud or Misrepresentation in the Employment Application


If the employer can prove that it hired you based on a misrepresentation you made on your application and that this misrepresentation is related to your work injury, then it does not have to pay benefits.


How does this defense work in the real world? Let’s take a look at Grimes v. Shenandoah Valley Press, 12 Va. App. 665, 406 S.E.2d 407 (1991).


In Grimes the claimant denied having prior back problems when she applied for a job. She subsequently suffered a muscular back strain. The employer denied the claim, arguing that she made a material representation when she withheld that she prior back aches related to kidney stones. The commission held against the employer and allowed compensation.


But wait! Isn’t it illegal for employers to ask about prior injuries or disabilities under the Americans with Disabilities Act (ADA)?

Yes, it is. But the ADA does not apply to all employers. Most small employers are not subject to the ADA and may still have the misrepresentation defense available in workers’ compensation claims.


If your employer is subject to the ADA and asks you about previous injuries or disabilities, you may have an employment law claim under the ADA. That’s why we’ve seen this defense used less and less over the past few years. If an employer is subject to the ADA it will likely not be able to raise this defense to your workers’ comp case.


Knowing Violation of Medical Restrictions


Has a doctor given you medical restrictions? Then follow them! An employer and its insurance company are not responsible for any injuries or aggravations of pre-existing conditions caused by your knowing violation of medical restrictions.


There is one exception – when the employer knows about your work restriction and tells you to ignore it. In that case the employer may be responsible for any injuries related to you ignoring your work restriction. But we recommend that you refuse to do any job that requires you to perform physical tasks outside of your restrictions.


Refusal of Medical Treatment


You must seek medical treatment, comply with your authorized treating physician’s recommendations, and attend an independent medical evaluation (IME) if it is scheduled by the insurance company. The insurance company can deny your claim or suspend benefits if you refuse to attend doctor appointments, physical therapy, or other medical examinations.


Self-Inflicted Injury


This is a rare defense but I have seen it raised at least twice in the past year, though unsuccessfully. If you intentionally caused your injury then the employer is not responsible for paying you benefits. We see this defense raised in cases where the employee is under investigation by the employer for something else, such as embezzlement or providing free services to customers, so the insurance company alleges that the employee injured himself or herself on purpose to avoid getting fired.


Statute of Limitations


Virginia has strict time limits for when you must file a claim for workers compensation. Depending on the type of injury or occupational disease, these time limits range from two to five years.


Because statutes of limitations are not flexible in most cases, you should contact an attorney and file a claim right away. If you wait too long then the insurance company will defend that your claim is time barred and avoid having to pay you compensation even though you suffered a valid injury.


Willful Misconduct


An injury that is the natural and probable consequence of your willful misconduct is not covered under the Workers’ Compensation Act. Common examples of actions that lead to the insurance company alleging willful misconduct include:


  • Violation of a safety rule that you know about, that is in place for your benefit, and that is enforced by the employer on a regular basis


  • Violation of a traffic rule that leads to you getting hurt in a motor vehicle accident


  • Violation of a statute that lead to you getting injured


  • Intoxication


  • Horseplay


Fight Back Against Workers’ Compensation Defenses: Get Legal Advice from a Top Rated Workers Comp Lawyer in Virginia


We help all types of injured workers who have been hurt in all types of work accidents get the benefits and workers comp settlements they deserve. No matter the defense being raised by the insurance company, we can help. Call, text, or email us today for a free case evaluation. Corey Pollard is here for you.