Workers' Compensation DEFENSE DIGEST
Virginia has long held that the statute of limitations for filing an initial claim for benefits is two years from the date of accident. Va. Code §65.2-601. However, prior to July 1, 2019, §65.2-602 provided that the two year statute of limitations to file a claim was tolled when (1) an employer had notice of an accident resulting in a compensable injury and paid wages or compensation to the claimant, with or without an award, during incapacity from work or that the employer failed to file a First Report of Injury and (2) that the claimant was prejudiced by the payment of wages or compensation during incapacity from work or by the employer’s failure to file the First Report of Injury. If a claimant proved both of these conditions, the statute of limitations was tolled for the duration of the payments or wages during the claimant’s incapacity from work or until the First Report of Injury was filed.
Effective July 1, 2019, the statute has been rewritten and there are some significant changes.
The new statute only applies to injuries occurring on or after July 1, 2019. It is not retroactive to injuries occurring before such date.
1. Most importantly, the statute of limitations is tolled if the employer paid TTD, TPD or wages during incapacity from work or furnished medical treatment more than six months after the accident. In other words, if an employer permits a claimant to obtain medical treatment more than 6 months after an accident and such treatment is related to the compensable injury, the statute of limitations is tolled and resets as of the date that the medical treatment was furnished. Likewise, if a claimant is disabled and paid either TTD or TPD for a period of longer than 6 months after an accident, every time payment is sent, the statute of limitation is tolled. This means that if you voluntarily pay a claimant wage benefits or authorize treatment at any time between 6 months following an accident and two years following an accident, you are reopening the 2 year statute of limitations from the date you pay or permit them to see the doctor.
2. The requirement that the claimant show that he was prejudiced by the payment of wages or compensation or the failure to file the FROI has been removed. The word prejudice is no longer included anywhere in the statute and the requisite showing of prejudice is no longer necessary. The statute is automatically tolled for the entire duration until the First Report of Injury is filed.
3. Any payments made or medical service provided after the statute of limitations has already passed does not cause the statute to toll. This would only apply if no indemnity was paid or medical services were furnished within the period of 6 months after the accident and two years after the accident.
Finally, the new statute only applies to injuries occurring on or after July 1, 2019. It is not retroactive to injuries occurring before such date.
What does this mean for you?
Essentially, you now have a 6 month period from the date of the accident in which to conduct your investigation, determine:
- Whether the accident is compensable; and,
- What injuries are causally related.
If you authorize medical treatment or pay indemnity to a claimant after 6 months, a claimant can then file a claim more than 2 years after the date of accident, commensurate with the length of time the payments were made.
If you have questions about whether payments could affect the statute of limitation, please contact any of our workers' compensation attorneys for assistance.
Lauren E. Hutcheson is an experienced trial lawyer who has successfully tried dozens of jury trials in Virginia and has handled a significant number of claims before the Virginia Workers’ Compensation Commission. She also specializes in defending personal injury litigation. Lauren received her J.D. from the University of Richmond School of Law and her undergraduate degree from Pennsylvania State University. She is named by Virginia Business as one of Virginia’s Legal Elite in the Young Lawyers Division, and by Super Lawyers as a Rising Star.