Workers Compensation LawEmployer Beware of Upended Statute of Limitation - Two Rivers Law Group, P.C.

March 29, 2019by Cecil Creasey0

Seen as good deeds, employers routinely honor voluntarily medical treatment and disability compensation on claims being investigated and questioned.  Consequences of such voluntary payments have evolved to result in unintended consequences, such as the imposition of de facto awards against employers and limits to challenging causation of medical treatment.  Such negative consequences cause employers to question voluntary payments or, at least, the extent of making such voluntary payments.  On March 18, 2019, Virginia Governor Northam signed into law House Bill 2022, amending Va. Code § 65.2-602 and expanding the tolling of the statute of limitation for an employee filing an initial workers’ compensation claim.  The law will become effective July 1, 2019, and applies to injuries by accident occurring on and after July 1, 2019.

Previously, the normal two-year statute of limitation for filing a claim for benefits could be tolled when the employer/carrier failed to file with the Virginia Workers’ Compensation Commission the first report of injury (FROI), and such conduct operated to prejudice the rights of the employee.  This new statute, as amended, eliminates the requirement of prejudice to the employee and will expand further the circumstances of tolling the limitation in favor of employees.  Under the new law, voluntary payments of compensation or wages during incapacity or payment of medical benefits beyond six months after the date of injury will toll the statute of limitation.  Such voluntary payments made after six months will toll the statute of limitation until the last day for which such payments or medical treatment are provided (longer than six months from the date of injury).  Such voluntary payments limited to less than six months of the date of injury will not result in tolling the statute of limitation.

Additionally, in the case where the employer/carrier has failed to file the FROI, the statute of limitation will be tolled during the duration thereof until the employer files the FROI as required by statute (within 10 days of knowledge of the accident).  No longer will an employee have to show any particular prejudice caused by the failure to file (or delay in filing) the FROI.

If more than one tolling circumstance applies, whichever of those causes the longer period of tolling shall control.  (This commentary assumes employer’s knowledge of the injury on the date of accident.  Untimely notice adds a more complicating factor in the analysis.)

While this law will inevitably be interpreted through litigation, it appears that voluntary payments of compensation or medical treatment during the first six months will not toll the two-year statute of limitation.  However, while the language of the statute is less than clear, we expect simply delaying the filing of the FROI longer than 10 days will extend the tolling until it is filed.  Thus, for claims arising on July 1 and after, we will focus on the date the FROI was filed, rather than the date of injury, when considering the statute of limitation.  This will certainly add uncertainty to the status of claims filed more than two years after the date of injury, as all these circumstances will have to be considered for the applicable statute of limitation date.

If you would like a copy of the actual statute, please let us know.  As with all questions and concerns regarding workers’ compensation claims, we at Two Rivers Law Group stand ready to assist our clients with these often tough challenges.

Cecil H. Creasey, Jr.

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