If you were hurt on the job, you may be wondering whether to pursue workers’ compensation. Even if the injury is minor, some injuries may worsen over time.

Is Your Employer Subject to Workers’ Compensation Laws?

  • Virginia employers with at least 3 employees are required by law to provide workers’ compensation insurance coverage, including part-time employees.

  • If your employer is required by law to cover you but fails to provide workers’ compensation insurance, you should still file a Claim within the statute of limitations because the Uninsured Employer’s Fund might get involved, §65.2-1200.

  • If you are an employee of a subcontractor and the subcontractor does not have workers’ compensation insurance but the general contractor does, then the general contractor is considered a “statutory employer” and you are covered under the general contractor’s insurance, §65.2-302.

  • If you are an independent contractor or self-employed, you should carry your own workers’ compensation insurance.

  • The Virginia Workers’ Compensation Act does not apply to federal, railroad, or harbor workers because they have their own specialized laws and unions. Federal employees fall under the Office of Workers’ Compensation Programs (OWCP) and Federal Employees Compensation Act (FECA), railroad workers fall under the Federal Employer’s Liability Act (FELA), and waterfront laborers fall under the Longshore and Harbor Workers Compensation Act (LHWCA). Civilian employees working outside the U.S., on U.S. military bases, or under a contact with the U.S. government for public works or for national defense fall under the Defense Base Act (DBA).

Have You Waited Too Long?

  • You should notify your employer of your work injury immediately but no later than 30 days after the accident, §65.2-600(D).

  • You should also complete a written Accident Report with your employer.

  • In Virginia, you have 2 years from the date of accident to file a Claim for Benefits with the Virginia Workers’ Compensation Commission, §65.2-601. If you only complete Part A of the Claim form, it will be considered a “protective filing” and no action will be taken unless you request something later. Completing Part A and B of the Claim form is considered a “request for hearing,” meaning you are asking your employer’s workers compensation insurance for certain benefits (ie. medical, compensation, reimbursement, etc.).

  • A rare exception to the 2-year statute of limitations is if your employer failed to file a First Report of Injury (FROI) with the VWC Commission, §65.2-900.

  • For an occupational disease, you should notify your employer immediately after the diagnosis but no later than 60 days after the diagnosis. For most occupational diseases, the statute to file a Claim is 2 years after the diagnosis or 5 years from the date of the last injurious exposure in employment, whichever first occurs, §62.5-406(A)(6).

Did You Suffer a Compensable Work-Related Accident?

  • Your injury must be arising out of and in the “course” of employment. If you are hurt while commuting to or from work, you might not be covered because you were not “on the clock.” If you drive for a living or if you are hurt while in route from one work task to another work task, you might be covered.

  • The only “repetitive” injuries covered in Virginia are carpal tunnel and hearing loss. Lifting 100 boxes over an 8-hour work day is usually not compensable unless, for example, you can pinpoint that you felt pain specifically lifting the 100 th box at 4pm. General stress from being overworked is usually not compensable.

  • A simple “misstep” is usually not covered unless there was something wrong like wet stairs, no hand rail, broken curb, etc.

There can be many “gray” areas in a workers’ compensation claim, so it is best to consult an experienced Virginia worker’ compensation attorney like Gerald Lutkenhaus .