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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

Looking through the Virginia Workers’ Compensation Act, you won’t find “marketing” or “duty to market” anywhere in the legislated sections of the Act. Instead, this frequently contested topic appears deep in the case notes of §65.2-510, a statutory provision dealing with the claimant’s refusal of employment.  

History

In J.A. Foust Coal Co. v. Messer, 195 VA. 762 (1954), the Supreme Court laid the ground work for the modern marketing rule with this single sentence: “one who has suffered a partial physical disability may obtain total incapacity payments if, because of his disability, he is unable to market his remaining capacity for work.” The consequence of this new rule was that the partially disabled

By: Esther King, Esq.

The beginning of any new claim can be difficult.  There are often more questions than answers, and you want to ensure that the claimant is provided with prompt care by an appropriate provider.    

Virginia Code §65.2-603(A)(1) provides: “as long as necessary after an accident, the employer shall furnish or cause to be furnished, free of charge to the injured employee, a physician chosen by the injured employee from a panel of at least three physicians selected by the employer.”

How often have you heard, “I don’t know why I fell?” Quite often, claimants will be unable to explain how the accident occurred but they will file for workers’ compensation benefits because the injury occurred at the workplace. These situations are known as unexplained accident claims and they can be difficult to navigate because the claimant has suffered an injury, which occurred in the course of her employment, but she can provide no explanation of how the accident occurred.