No one goes to work thinking they will suffer an injury.
But it happens. Often.
Indeed, the Virginia Workers Compensation Commission received 33,053 workers compensation claims and reports of 106,102 injuries in 2022. The math works out to over 290 work-related injuries a day.
Unfortunately, the number of workplace injuries may be higher. Many injured employees do not report workplace accidents for fear of losing their jobs.
Virginia workers compensation law affects millions of employees and their families. Receiving workers comp (also called Workman’s comp by some) is often the difference between a family having food, clothing, and a roof over their head or living in poverty.
As Judge E.R. Mills said:
Workers compensation is a very important field of law, if not the most important. It touches more lives than any other field of the law. It involves the payments of huge sums of money. The welfare of human beings, the success of business, and the pocketbooks of consumers are affected daily by it.
But despite its impact on countless lives, businesses, and government programs, a small percentage of people understand the nuances and complications of Virginia workers compensation.
Indeed, the modern system of workers comp in Virginia and other states confuses injured workers, their doctors, and attorneys who do not specialize in workplace injury litigation. It even stumps personal injury attorneys who dabble in the field.
Employers, workers compensation insurance carriers, and claim administrators (such as Sedgwick, ESIS, Gallagher Bassett, etc.) use this lack of knowledge to delay, deny, and defend workers comp claims brought by injured employees like you or a loved one. Using this disparity in understanding workers comp helps insurers save millions of dollars yearly.
We want to eliminate the advantage that employers and insurance companies have over injured workers.
And we use this website to achieve that goal. Education on workers comp is the best way to fight insurance companies and claims adjusters who use their knowledge against you.
This article and others explain how workers compensation works in Virginia. You will receive information about the laws, procedural rules, and evidence that influences the outcome of your workers comp claim. And you can use this knowledge to put tens of thousands of more dollars in your pocket, get the medical treatment needed to heal, and negotiate a workers compensation settlement.
Read on for more workers comp tips.
Then call us for a free consultation: (804) 251-1620 or (757) 810-5614.
Our law firm has obtained tens of millions of dollars in Virginia workers compensation settlements and won countless trials, hearings, and appeals.
We are ready to help you survive and resolve your Virginia workers compensation case successfully.
Virginia adopted its first workers compensation law in 1918 (the Virginia Workmen’s Compensation Act). This Act modeled the Indiana Workers Compensation Act. Indeed, courts have said it was “a virtual copy of an Indiana statute.”
This initial legislation compensated injured workers for accidental injuries within the hazards of their employment.
Years later, in 1944, the Virginia General Assembly added limited coverage for occupational diseases to the Workers Compensation Act.
In 1950, this law became the Virginia Workers Compensation Act, and the Industrial Commission became the Workers Compensation Commission.
The purpose of the Virginia Workers Compensation Act is to:
Workers compensation is called a “grand bargain” between employers and workers. Indeed, the Virginia General Assembly created the workers compensation system “as a carefully balanced societal exchange between the interests of employers, employees, insurers, and the public.”
Under this grand bargain, employees receive reduced but certain benefits for covered injuries, illnesses, and death regardless of fault or liability. In exchange, workers give up their rights to sue their employers in civil court if they get hurt or sick.
Employers accept relaxed standards of proof (by waiving common law defenses) and must pay the statutory benefits in eligible cases. However, employers receive protection from lawsuits and large jury verdicts in tort lawsuits that could bankrupt their businesses.
Each state workers compensation system is unique, operating under its laws, regulations, rules, and legal precedents (case law created by judges).
The following sections explain the basic features of workers comp in Virginia:
Most countries follow one of two major legal systems: civil law or common law.
Civil law systems rely on legal codes (statutes) to resolve disputes.
In contrast, common law systems rely on past judicial decisions (precedents) to resolve legal disputes.
Workers compensation is a mixture of both legal traditions.
Our system has a civil law component because statutes govern a significant part of Virginia workers compensation.
Title 65.2 of the Code of Virginia contains these workers comp statutes. Collectively, these laws make up the Virginia Workers Compensation Act.
The Act organizes its parts into the following chapters and sections:
Our system has a common law component because Deputy Commissioners, Commissioners, and state court judges render decisions interpreting the Virginia Workers Compensation Act. In doing so, the courts must liberally construe the Act’s provisions in harmony with its humane purpose of helping injured workers.
These judicial opinions shape the law and injured workers’ rights. You can search for them here.
Negligence and fault do not matter in workers comp.
Indeed, workers compensation statutes attempt to reduce the need for litigation by paying benefits automatically when an injured employee meets the other criteria.
For example, a finding that an injured worker’s negligence caused the bodily injury does not result in forfeiture of benefits or lessen the amount or type of medical care received because contributory negligence is not a defense to an occupational injury claim.
Further, proof that the employer is fault-free does not eliminate the employer’s liability for workers comp benefits.
For example, an OSHA citation to your employer for an unsafe work environment resulting in your injury will not give you a private cause of action against the employer or increase your workers compensation award.
The law requires Virginia employers to secure their liability for workers comp benefits by buying insurance from a company such as Travelers, The Hartford, Liberty Mutual, or others, or to become self-insured.
Failing to buy workers compensation insurance coverage or satisfy the financial requirements to be self-insured could result in civil penalties (civil fines).
Virginia workers compensation law covers employees hurt in Virginia, even those working here temporarily.
The Virginia Workers Compensation Act even applies to those hurt in other states, as long as their employer’s principal place of business is here.
But you must be an employee to qualify. Workers comp covers employees only. Independent contractors cannot receive benefits. Read this article to see whether workers compensation considers you an employee or an independent contractor (the terms used by you or your employer don’t matter).
Hint: The Virginia Workers Compensation Act covers over 97 percent of employees. Chances are good that you are eligible for benefits if you are an employee who suffered a work-connected injury.
Virginia, however, excludes certain classes of employees and does not subject businesses with two or fewer employees to the system.
You are entitled to cash or medical benefits when you suffer a “personal injury by accident arising out of and in the course of employment” or receive a diagnosis of an occupational disease.
In addition, the insurer may have to pay for disability from and medical treatment related to preexisting conditions, such as arthritis, spinal stenosis, and degenerative joint disease, if the occupational injury flares, aggravates, or exacerbates these conditions.
For example, the insurer may have to pay for a spinal fusion if you suffer a back injury that worsens a herniated disc to the point you need surgery. Or workers comp may cover a total knee replacement if you suffer a knee injury that tears your meniscus and exacerbates osteoarthritis.
Further, the insurer must pay for lost earning capacity and medical care for natural consequences of the initial injury. This is called the compensable consequence doctrine.
For example, suppose you suffer a torn rotator cuff in your right shoulder that leads to overuse of the left shoulder. If you start having problems using the left shoulder, the insurer may have to pay for disability and treatment for that arm even though you did not hurt it in the work accident.
Read this article for a checklist to determine whether your injury qualifies for workers compensation in Virginia.
Then read this page for links to in-depth articles about negotiating settlements for common injuries in workers comp.
You may qualify for many types of workers compensation benefits after a workplace injury.
The primary benefits available include the following:
You may also negotiate a compromise and release where you receive a lump sum by cashing out your medical award and the potential wage loss benefits you can receive.
Read this article to learn how to calculate the pre-injury average weekly wage tips on making a workers compensation settlement demand.
The Virginia workers comp system involves cooperation between the public and private sectors.
Self-insured employers, insurers, and third-party claim administrators make the initial decision to pay or deny a claim.
The Virginia Workers Compensation Commission is an independent state agency that provides oversight and dispute resolution when there is a disagreement between any stakeholders – injured workers, employers, insurers, and medical providers. Led by three commissioners and an executive director, the Workers Compensation Commission employs about 300 staff organized into several departments.
The Workers Compensation Commission’s powers and responsibilities include the following:
Workers Compensation Commission decisions awarding or denying workers comp benefits are subject to judicial review by the state courts.
In Virginia, for example, parties to a case have an automatic appeal of right from the Workers Compensation Commission to the Court of Appeals of Virginia.
However, the Court of Appeals must defer to the Commission’s factual findings if any credible evidence supports them in most cases.
Relaxed rules of civil procedure (including pretrial discovery) and evidence apply in Virginia workplace injury litigation. This is because fewer rules give judges greater discretion in handling their hearing docket and promote speed.
The parties to litigation may still use interrogatories, requests for the production of documents, requests for admissions, subpoenas, depositions, and accident scene investigations to prove or defend the claim.
You may lose the right to work comp benefits if you do not report the accident, injury, or occupational disease timely or file an initial claim within two years of the accident date or the diagnosis of the illness.
This deadline is only one of the many that may apply.
Read about other workers compensation statutes of limitations and repose here.
And feel free to use our sample letter reporting a workplace injury as a template.
Workers comp is the only remedy available to most workers for damages related to covered injuries, diseases, and deaths.
Indeed, injured employees waive the right to sue their employer (or coworker) under common-law negligence and tort laws, with limited exceptions (such as uninsured employers or sexual assault claims).
However, injured workers can sue third parties whose negligence caused the occupational injury. These third-party work injury lawsuits often arise from construction site accidents, forklift accidents, commercial trucking crashes, and car collisions.
For example, you may have a Virginia workers compensation claim against your employer and a civil action against another driver if you suffer injuries in a car accident while on the job.
But remember: Under the principle of subrogation, the employer has a lien against the verdict or settlement proceeds of the third-party lawsuit.
Further, Virginia workers comp laws require you to get the workers compensation insurer’s permission before settling a third-party lawsuit. Otherwise, you risk forfeiting additional benefits under the Virginia Workers Compensation Act.
Workers comp law changes constantly.
The Virginia General Assembly can alter the workers compensation statutes. And it does so often.
These amendments respond to societal change, court decisions from the year before, new data on workplace accidents, scientific discovery, or lobbying efforts from trial lawyers representing claimants or insurers.
In addition, the Workers Compensation Commission and appellate courts publish hundreds of judicial opinions each year interpreting the law.
Attorneys must keep up with these changes to counsel injured workers about their rights and responsibilities after an occupational injury or illness.
Virginia workers compensation plays a crucial role in society by providing a financial safety net and medical treatment to employees hurt at work.
However, understanding and comprehending the Virginia Workers Compensation Act will challenge you. And a mistake could cost you thousands of dollars.
My law firm believes that educating clients on the Virginia workers compensation system is the best way to ensure they make the best choices for their family, health, and finances. This is why we answer hundreds of frequently asked questions about work comp on this website.
We hope you use this information to get everything you deserve.
And if you have any questions about your case, call me: (804) 251-1620 or (757) 810-5614.
If my firm cannot help you, we will recommend someone who can.