Coming Soon: Changes to a Statute Near You

Written by Jessica Gorman, Esq.

Edited by Rachel Riordan, Esq.

Many of us authorize medical treatment during the investigation of a claim, when the injured worker is unrepresented, and when no claim has been filed in an effort to limit exposure without a formal award being entered.  However, your ability to do this without potential longstanding effect is soon coming to an end…As of July 1, 2019, any medical treatment authorized and paid for BEYOND a six month period, will impact the statute of limitations for which an injured worker has to file a claim and will act as a basis for the tolling of the statute of limitations.

Statute of Limitations:  Virginia Code § 65.2-601 provides that the “right to compensation under this title shall be forever barred, unless a claim be filed with the Commission within two years after the accident.” This requirement is jurisdictional, and the Commission has no authority to adjudicate or award benefits for a claim not filed within that two-year period. See Barksdale v. H. O. Engen, Inc., 218 Va. 496, 497, 237 S.E.2d 794, 795 (1977). The voluntary payment of medical expenses did not toll the statute of limitations. See Stuart Circle Hospital v. Alderson, 223 Va. 205, 288 S.E.2d 445 (1982).

The exceptions to the statute of limitations were limited pursuant to Va. Code § 65.2-601. In Tuck v. Goodyear Tire & Rubber Co., 47 Va. App. 276, 284-85, 623 S.E.2d 433, 437 (2005), the Court of Appeals explained: There are only three exceptions to timely filing under the statute of limitations. (1) Code § 65.2-602 provides for tolling of the statute of limitations if the employer fails to file the first report of accident (FROI) and such conduct operates to prejudice the rights of the employee with regard to filing the claim prior to the expiration of the time period. (2) The employer is estopped from asserting the statute of limitations defense if the injured worker provides unequivocal evidence that he or she refrained from filing a claim because employer misrepresented or concealed material facts. See Am. Mut. Liab. Ins. Co. v. Hamilton, 145 Va. 391, 135 S.E. 21 (1926); Avon Prods., Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228 (1992); Rose v. Red’s Hitch & Trailer Servs., Inc., 11 Va. App. 55, 59-60, 396 S.E.2d 392, 394-95 (1990). (3) The doctrine of imposition “empowers the commission in appropriate cases to render decisions based on justice shown by the total circumstances even though no fraud, mistake or concealment has been shown.” Odom v. Red Lobster # 235, 20 Va. App. 228, 234, 456 S.E.2d 140, 143 (1995) (quoting Avon Prods., Inc., 14 Va. App. at 7, 415 S.E.2d at 228).

NEW CHANGES EFFECTIVE 7/1/19:  However, as indicated above changes are on the horizon.  House Bill 2022 has recently been approved and will be effective July 1, 2019. This bill amends the provisions governing the tolling of the statute of limitations for filing a workers’ compensation claim.  The specific changes note as follows:

“If, after receiving notice of accident resulting in a compensable injury to an employee, the employer pays compensation or wages to the employee during the resulting incapacity for worker, the employer fails to file a report of the accident with the Virginia Workers’ Compensation Commission, or the employer furnishes medical care to the employee under a workers’ compensation plan or insurance policy, the statute of limitations applicable to the filing of a claim is TOLLED until the last day at least 6 months after the date of accident for which such payment of compensation or wages is made or medical services are provided. (Emphasis added.)

No such payment of wages or workers’ compensation benefits or furnishing of medical services occurring after the expiration of the statute of limitations triggers the tolling. If the employer has failed to file a first report of the accident, the statute of limitations is tolled until the employer files that report. If more than one of the preceding tolling provisions applies, whichever results in the longer prior of tolling shall control. (Emphasis added.)

The ability of the employer to stop the tolling of the statute of limitations by providing the employee with the workers’ compensation guide created by the Workers’ Compensation Commission or with a notice of the applicable statute of limitations, is eliminated.” (Emphasis added.)

What does this mean for your claim: As a result of these changes you will still need to ensure that either limited or NO wage loss benefits are paid, if at all possible, following the accident – to avoid a potential de facto award. BUT ALSO, now you will need to ensure that any investigation of your claim is completed with no medical treatment authorized or paid for following the six month period after the date of accident. If treatment is authorized, then an injured worker could claim an additional periods beyond the statute of limitations to file a claim, equal to the number of months for which treatment was authorized following that six month period after the accident.  The likely reason for this change is to ensure that injured workers are aware that a claim is being denied or to ensure that they do file a claim where no award has been entered.

I will note that if a claim IS filed and then subsequently dismissed “without prejudice” (for failure to comply with discovery or some other reason) this does not toll the statute of limitations. See Moore v. Denny’s, VWC File No. 165-32-52 (Apr. 8, 1996).

If treatment is provided and a medical only award is agreed upon and entered, the statute of limitations of Virginia Code § 65.2-601 is no longer applicable. Instead, Virginia Code § 65.2-708 governs. Virginia Code § 65.2-708 also has a two-year statute of limitations.

In reviewing your claims, should you have any questions about what period of benefits or what type of benefits you should authorize when no claim or award has been entered, please contact us to discuss how to minimize the risk of tolling the statute of limitations under the new statute.

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