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Has time run out on my workers compensation claim?

Posted by B. Patrick Agnew | Sep 29, 2017 | 0 Comments

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Virginia Workers Compensation time limitations can be very complex

One of the more challenging aspect of a workers compensation case in Virginia are the variety of time limitations built into the law.  While it is important to understand the how long an injured worker has to file an initial claim with the Virginia Workers Compensation Commission, (typically, but not always 2 years from the date of the accident),  it is equally important in many cases to understand what kinds of time limitations happen after a claim is filed.

This post is first in a series of posts setting out some of the time limitations in a Virginia Workers Compensation Case .  

Here is our example:

An employee has a back injury on on June 1, 2015 and receives weekly wage loss benefits through November 2, 2015 and returns to full duty work with her employer making the same amount of money that she made before the accident.  The injured worker continues to work with occasional, but not disabling, pain and returns to her physician on November 3, 2017 because of an increase in back pain and the physician takes the injured worker out of work for two weeks to gain some relief from the pain.  The injured worker discusses the issue with her employer and ask for the insurance company to pay her for the two weeks of wage loss benefits.  

To her surprise, the insurance company denies the claim for wage loss benefits.  The claims adjuster tells the injured worker that, since two years have passed since the last time the injured worker received benefits, she is not entitled to any more wage loss benefits.  The injured worker files a claim for the two weeks of benefits and the Deputy Commissioner for the Virginia Workers Compensation Commission agrees with the claims adjuster and denise the two weeks of compensation.  

What is the injured worker to do?  Here are some tips:

First, it must said that it is true that an injured worker is not entitled to additional wage loss benefits if 24 months goes by without a weekly payment.  However, as in many areas of the law, an injured worker -- most likely with the help of an attorney --  may have several strategies:

Strategy #1

During the two year time period, was there any period of time that the injured worker obtained light duty or restricted duty notes from her physician?   One way this may come up is, as described in our example, an injured worker continues to have pain and symptoms but is not totally disabled. The reality is that the injured worker can do most of the employment duties but not all of them.  In that scenario, an injured worker should discuss her limitations with the treating physician and obtain a work note.  

Once a work note is obtained, the injured workers should find out if the employer can accommodate the restrictions. If the employer accommodates the work restrictions and pays the injured employee her full wages, the injured worker.  

If this happens the two year limitation is “tolled” or stopped while the work restrictions exist.  Some attorneys would argue that the 24 month period resets when this happens.

Strategy #2

Another strategy is similar to the strategy in #1.  If the scenario is the same and the employer does not accommodate the restrictions, the injured worker could claim partial wage loss if there is a reduction. If this happens and an award is entered, the two year limitation resets.

Strategy #3

The injured employee should always find out if they have permanent loss of use to an injured body part. If so, an award of benefits can, in some circumstances,  extend the 24 month limitation.  Here is an example.  Assume that the injured worker in our example injured her right arm and not her back.  She returns to her regular work on November 2, 2015, but still has problems.  

She talks to her physician and her physician tells her that she is as good medically as she is going to get, but she has a 10% loss of use to her arm. This 10% loss of use could translate to an award for benefits .  If so, the limitation on wage loss benefits can be extended until the last payment is made.  In other words, if the the award is paid and the payments end on March 1, 2016, the 24 month period does not begin to run until that time.

Strategy #4

In many cases, injured workers do not miss any time at all in the initial stages of their injury but the insurance company agrees to a “medical award”. Sometimes, after this happens an injured worker will have issues with the injury that cause her partial or total disability for a period of time.  This raise the question: What if the injured worker has problems 2 or 3 or 4 years after the accident?

When does the 24 month limitation begin to run.  In 2013, the Virginia Supreme Court addressed this issue.  A claim was filed that made its way through a Deputy Commissioner, the Full Commission and the Virginia Court of Appeals. The Supreme Court found that, that the 24 month time limitation did not begin to run until the medical award was actually entered by the Virginia Workers Compensation Commission.

This did away with a common assumption by some attorneys and Deputy Commissioner's that the time limitation began to run from the date of the accident.  In that case, the difference was significant.  The medical award was not for a long period after the the accident and the injured worker gained the benefit of the time limitation because of the delay. It could be argued that in all cases, not just cases where a medical award only is entered, benefit from the Supreme Court's finding.

Strategy #5

Any time limitation in the Virginia workers compensation act can be tolled if the insurance company or the employer acted in such a way as to lead the injured worker to believe that no claim could or should be filed. I recently had a case come across my desk in which an injured worker was told by the insurer that he could not receive additional weekly wage loss benefits because the “statute of limitations” had passed.

In reality, my client's situation was more like the circumstances under “strategy #1” above.  In that case, we have an additional reason to try to persuade the Virginia Workers Compensation Commission that the 24 months has not expired.  Specifically -- if the insurer had not misled my client, he may have filed and additional claim.

Another example is when an insurance carrier tells an injured worker something like “you do not need to do anything else” or “we will take care of you” or some other words that lead the injured worker to believe that no other action is required of the injured worker.   Sometimes, time limitations, including the 24 month time limitation can be extended because of the insurance companies behavior.

In Summary

Virginia Workers Compensation cases are complex in their own way.  The time limitation discussed in this article is only one time limitation among many built into the law.  It is important for an injured worker to know the rules and, if the worker is unsure, to consult an attorney as soon as possible. Time is always ticking in injury claims and workers compensation is no different.  

About the Author

B. Patrick Agnew

Not only was I born and raised in Central and Southwest Virginia, I attended both undergrad and law school in this great state. I enjoy working with fellow Virginians and strive to provide them with excellent legal services. My undergraduate career took place at Liberty University, where I earne...

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