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Importance of Assessing Jurisdictional Defenses at the Beginning of a Workers’ Compensation Claim

December 29, 2022

When an injured worker asserts that she suffered a workplace accident, that business must consider several items in its initial investigation of the claim.  Time is of the essence when the business is conducting this investigation, not only to preserve evidence but also to determine whether it could be a viable claim.  It is important for an employer to create a timeline of the alleged accident and the events that occur involving the injured worker thereafter.   At this stage of initial investigation, the business should consider a few key jurisdictional issues to determine whether there is jurisdiction for the alleged accident under the Virginia Workers’ Compensation Act.

It is critical to know when a supervisor or safety manager from the business was first notified of employee’s accident. 

Importantly, under Va Code §65.2-600, “every injured employee or her representative shall immediately on the occurrence of an accident or as soon thereafter as practicable, give or cause to be given to the employer a written notice of the accident.” 

Under §65.2-600 (D), no compensation or medical benefit shall be payable unless such written notice is given within thirty days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the Commission for not giving such notice and the Commission is satisfied that the employer has not been prejudiced thereby.

Of note, however, under §65.2- 600(E), no defect or inaccuracy in the notice shall be a bar to compensation unless the employer proves that her interest was prejudiced thereby.  This prejudice can sometimes be difficult for the employer to prove.

An employer must consider whether the claim for benefits was filed with the Virginia Workers’ Compensation Commission within two years of the accident date.

Under §65.2-601, a claim must be filed within two years of the accident date or the injured worker’s right to compensation is forever barred.   Death benefits payable under the Act shall be payable only if: (i) death results from the accident, (ii) a claim for benefits under this title has been filed within two years after the accident, and (iii) the claim for such death benefits is filed within two years from the date of death.

There are always exceptions!   It is important to determine whether several tolling factors are applicable if the claim was filed more than two years after the accident date.

This tolling of the statute of limitations can occur after an employer’s action or non-action with respect to the report of an accident.  Under §65.2-602, in any case where an employer has received notice of an accident resulting in compensable injury to an employee as required by §65.2-600 and, whether or not an award has been entered, the employer has paid compensation or wages to such employee during incapacity for work, as defined in § 65.2-500 or 65.2-502, resulting from such injury or the employer has failed to file the report of said accident with the Virginia Workers' Compensation Commission as required by § 65.2-900, or otherwise has under a workers' compensation plan or insurance policy furnished or caused to be furnished medical service to such employee as required by § 65.2-603, the statute of limitations applicable to the filing of a claim shall be tolled until the last day for which such payment of compensation or wages or furnishment of medical services as described above is provided and that occurs more than six months after the date of accident.   However, no such payment of wages or workers' compensation benefits or furnishment of medical service as described above occurring after the expiration of the statute of limitations shall apply to this provision. In the case where the employer has failed to file a first report, the statute of limitations shall be tolled during the duration thereof until the employer filed the first report of accident as required by § 65.2-900.  In the event that more than one of the above tolling provisions applies, whichever of those causes the longer period of tolling shall apply.

Was the injured worker an employee of the business?

The determination of whether a person was an employee or independent contractor at the time of the accident whittles down to the type and amount of control exerted by the business over the injured worker.  This is a factual determination made by the Commission.  These criteria help the Commission determine a worker’s status: communications between worker and business, work schedules and regularity of work shifts, method and frequency of payment, equipment provided by the business to the worker, method of transportation to jobsites, and ability for worker to freely work whenever she wishes.

Were there other businesses onsite that date and was the injured worker working for that business instead?

The role of a particular business on a jobsite should be considered because it has impact on the classifications of general contractor and subcontractor roles.  If for some reason the subcontractor did not have workers’ compensation insurance at the time of the accident and the business is the general contractor, that business may have liability for the injuries of employees of that subcontractor’s employees.  Under §65.2-302, the statutory employer liability could attach and the business would be held responsible for benefits awarded to the injured worker.

Did the business have more than two employees at the time of the accident?

The Act only applies to businesses with two or more employees.  If the injured worker was working for a business with two or fewer employees, his/her injury is not covered under the Act and she cannot receive workers’ compensation benefits.

The Act defines employees in a very specific way and carves out exclusions for certain types of persons associated with a business.  Those exclusions result in lower amounts of employees under the Act.  For example, a person who is a sole member of an LLC does not count as an employee under the Act if he has not filed in writing a request to be included under the Act for his LLC business.

While there are many items to be considered when an accident happens at a business and when a claim for benefits is filed with the Virginia Workers’ Compensation Commission, this article highlights just a few such considerations.  Businesses should seek the advice of counsel when navigating the initial investigation and later defense of workers’ compensation claims.

Kerry Stolz is a Pender & Coward attorney focusing her practice on workers’ compensation matters.

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