II. Injuries by Accident A.
Notice 1.
Virginia Code Section 65.2-600 requires an injured employee to give the employer notice of an accident immediately after it occurs. A report of an injury is not sufficient to satisfy the injured employee's burden of proof, absent notice of an accident. A report of an accident within 30 days of its occurrence is still timely, but could result in the loss of certain benefits that may have accrued prior to giving actual notice to a person in a supervisory capacity with the employer. (See no. 6 below)
2. While the statute states that "written notice" is required, Virginia cases hold that the lack of written notice of an accident does not preclude an employee from recovering workers' compensation benefits if the employer has received actual notice of the workplace injury.
3.
If notice is provided after the 30-day window, the failure to provide timely notice can be excused only if the employee offers reasonable justification for the delay. The most common example of a reasonable excuse is that the employee believed the injury to be trivial at the time of the accident, but later found it to be more serious. Ignorance of the law is not a reasonable excuse.
4.
If the employee offers a reasonable excuse for the delay, the burden of proof then shifts to the employer to demonstrate prejudice experienced from the delayed notice. Classic examples of prejudice would include an inability to offer medical treatment that could have reduced the seriousness of the injury, and an inability to investigate the circumstances of the accident (e.g. drug testing, interviewing witnesses).
5. 6.
In the event the employer prevails on the notice defense, no benefits are payable whatsoever.
Even if the employer does not prevail in a general notice defense, Section 65.2-600(C) provides that "[t]he employee shall not be entitled to physician's fees nor to any compensation which may have accrued under the terms of this title prior to the giving of such notice, unless it can be shown that the employer, his agent or representative had knowledge of the accident or that the party required to give notice had been prevented from giving notice by reason of physical or mental incapacity or the fraud or deceit of some third person."
