7.3 Filing a Claim

LibraryWorkers' Compensation Practice in Virginia (Virginia CLE) (2020 Ed.)

7.3 FILING A CLAIM

7.301 Overview.

A. In General. The filing of an initial claim with the Workers' Compensation Commission is an important step in protecting the rights of an injured worker. A claim provides the Commission with jurisdiction over the case and begins the process of determining whether an accident or occupational disease occurred that arose out of and in the course of employment, as well as the nature of the injury and what benefits are available. Because the timely filing of an initial claim is jurisdictional, the failure to do so within the proper statutory period may result in the forfeiture of all benefits. 51 The filing of a claim also stays debt collection by health care providers for medical treatment related to the accident until an award pursuant to Virginia Code section 65.2-704 is made. 52 Filing a claim also invokes code section 65.2-714, which prevents physicians, hospitals, or other health care providers from balance billing for medical services, appliances, or supplies furnished to the employee as a result of the work injury. 53

B. Review of Claim. Upon receipt, the Commission will review the claim or application for compliance. 54 The Commission may order the employer to advise whether the employee's claim is accepted or to provide reasons for denial. Response to such an order is considered a required report pursuant to section 65.2-902 of the Virginia Code. However, the employer's response to this order is not considered part of the hearing record. 55

Once an initial award has been entered, the parties may file change-in-condition claims or applications to address additional issues that arise. A change in condition "means a change in physical condition of the employee as well as any change in the conditions under which compensation

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was awarded, suspended, or terminated which would affect the right to, amount of, or duration of compensation." 56 Except as provided in Virginia Code sections 65.2-712, 65.2-1105, and 65.2-1205, a review cannot affect money that has been paid. 57 Change-in-condition claims also have statutory periods for filing, but these are not jurisdictional and may be waived. With the exception of requests for cost-of-living supplements, a change-in-condition claim precludes the award of additional compensation benefits to 90 days before the filing with the Commission. 58

While the majority of initial claims and change-in-condition claims or applications are resolved by execution of agreements, the cases where the parties cannot agree proceed to the hearing docket for adjudication.

7.302 Forms of Filing.

A. Commission Forms Available for Filing. The Commission provides forms for filing original and change-in-condition claims. These forms may be found on the Commission's website and can be completed and filed electronically. 59

B. Electronic Transmission, Letters, and Other Methods of Filing. While the Commission prefers that parties use its forms and file electronically, a letter to the Commission containing the required information may be sufficient. 60 An injured worker's letter, 61 a representation letter from

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an employee's counsel, 62 an inquiry letter from an employer's attorney, 63 and even a subsequently vacated agreement form 64 have been held to constitute a claim. However, the correspondence must contain the information specified in Rule 1.1 or Rule 1.2 to be a valid claim. 65 In Constantini v. Western Exterminating Co., 66 the Commission received a copy of a letter to an employer demanding compensation. The hearing commissioner found that the letter set forth all the elements of a claim for compensation benefits and held that the copy of the letter received by the Commission constituted a claim.

Notice of an accident or occupational disease pursuant to Section 65.2-600 does not constitute a claim. 67

7.303 How and Where to File a Claim. Virginia Code section 65.2-101 defines "filed" as meaning one of the following:

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1. Hand-delivered to the Commission's office in Richmond or any regional office maintained by the Commission;
2. Sent by means of electronic transmission approved by the Commission or by facsimile transmission;
3. Posted at any post office of the United States Postal Service by certified or registered mail;
4. First-class mail.

Claims that are hand-delivered or sent by first-class mail, electronic transmission, or facsimile transmission are considered to be "filed" only after the document actually reaches the Commission's Richmond or regional office. 68 Claims sent by certified or registered mail are deemed "filed" when posted at the United States Postal Service. 69 As provided by statute, 70 certain insurance documents are considered "filed" when received by the Commission's designated agent. 71

When a statute requires notice to be given or any other act to be done within a certain time, the day of the event is excluded, but the last day for filing is included. 72 When the last day for filing falls on a Saturday, Sunday, legal holiday, or day or part of a day on which the clerk's office is closed as authorized by statute, the filing is timely if it is made on the next day that is not a Saturday, Sunday, legal holiday, or day on which the clerk's office is closed pursuant to authorization. 73

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7.304 Original Claims. 74

A. Content of Original Claim. Commission Rule 1.1 provides that an employee's original claim for benefits "shall be in writing and signed and should set forth: (i) the employee's name and address; (ii) the employer's name and address; (iii) the date of the accident or the date of communication of occupational disease; (iv) the nature of the injury or occupational disease; (v) the benefits sought—temporary total, temporary partial, permanent total, permanent partial, or medical benefits; and (vi) the periods of disability, if appropriate."

The claim must also specify the injuries. 75 If the employee suffered injury to multiple parts of the body or suffered distinct injuries, all injuries should be listed. The failure to include a body part at the time of the initial claim may be a bar to subsequent claims for medical expenses or wage loss resulting from injuries that were not claimed or awarded before the expiration of the statute of limitations period. 76

Because the Commission only has jurisdiction to award the benefits that are claimed, it is important that an injured worker allege all injuries, periods of disability, and types of benefits sought when filing a claim. 77

It is also important that, when a claim is resolved by agreements or stipulations, careful attention is paid to making certain that all injuries are listed. The failure to include a body part that was initially claimed may result in subsequent claims being deemed abandoned, barred by the statute of limitations, or precluded by res judicata. 78

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Medical evidence should be filed to support the claim. 79 If supporting evidence is not filed within 90 days after a claim is filed, the claim may be dismissed upon motion of the employer after notice by the Commission to the parties. 80 An injured worker may comply with Rule 1.3 even if the medical evidence submitted is not in and of itself sufficient to prove a compensable accidental injury or occupational disease. 81

B. Statutes of Limitations for Original Claims.

1. In General. In order to comply with the statute of limitations period, the injured worker must file a claim and allege disability within the limitations period. The injured worker is not required to establish the disability 82 or request a hearing 83 within the statutory period. However, there must be evidence of some disability within the limitations period. For example, where a medical-only award was initially entered, the subsequent claim for disability benefits was barred because there is no evidence of any work incapacity within two years from the date of the accident. 84 Calculation of the statute of limitations period does not include the date of the accident. 85

2. Statute of Limitations for Accident Claims. Under Virginia Code section 65.2-601, the right to compensation is forever barred

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unless a claim is filed with the Commission within two years after the accident. The limitation is jurisdictional. 86 As discussed below in paragraph 7.304(C), section 65.2-602 of the Virginia Code allows the tolling of the statute of limitations if certain requirements are established.

The limitations period of section 65.2-601 does not apply to the Commonwealth. Accordingly, the Uninsured Employer's Fund, as part of its subrogation and recoupment authority, may file a workers' compensation claim against the direct employer or statutory employer more than two years after the date of the accident. 87

3. Statute of Limitations for Death Claims.

a. In General. Death benefits are payable only if (i) death results from the accident; (ii) a claim for benefits under the Act has been filed within two years after the accident; and (iii) the claim for death benefits is filed within two years from the date of death. 88 Death resulting from the accident must have occurred within nine years. 89

b. Death from Coal Worker's Pneumoconiosis. A claim for benefits must be made within three years after death from coal worker's pneumoconiosis. 90

c. Death from Occupational Disease. If death results from an occupational disease within any of the periods allowed for filing a claim for the occupational disease, a claim must be filed within three years of the death. 91

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4. Statute of Limitations for Occupational Disease Claims. In occupational disease cases, the rights and duties of both the employer and employee become fixed at the time the diagnosis of the disease is first communicated to the employee. 92 This is the "date of accident" for filing purposes.

a. Coal Worker's Pneumoconiosis. A claim must be made (i) within three years after...

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