Virginia Workers Comp Change in Condition Deadlines: When You Can Still Reopen Your Workers Comp Case

 

The Statute of Limitations for Reopening Is Different from the Initial Claim Deadline

By Corey Pollard | Virginia Workers Compensation Attorney Last Updated: December 2025

 

Quick Answer: The deadline to reopen a Virginia workers compensation case depends on what benefits you’re seeking. For wage loss benefits, you generally have 24 months from the date you last received compensation under an award. For permanent partial disability, you have 36 months. Medical treatment has no separate deadline as long as you have an open medical award and the treatment is causally related to the work injury – either directly, or as a compensable consequence. Unlike initial claims, change in condition deadlines can sometimes be waived by the employer or insurer through conduct or agreement.

 

You already have an award. Your condition has worsened, or you lost your light-duty job. You want to file a change in condition application to get additional benefits.

 

But you’re not sure if you’ve missed the deadline.

 

The statute of limitations for change in condition claims is different from the two-year deadline for initial workers comp claims. It has different starting points, different lengths, and different rules about waiver. And unlike initial claims, where the deadline is jurisdictional and cannot be extended by agreement, the insurer may waive a statute of limitations defense to change in condition claims.

 

This page explains how to calculate your deadline, what counts as “compensation under an award,” and what options exist if you’re close to or past the cutoff.

 

The Change-in-Condition Deadlines at a Glance

 

 

These deadlines come from Virginia Code § 65.2-708.

 

What Counts as “Last Received Compensation Under an Award”

 

This is where most deadline disputes arise.

 

The statute says you must file within 24 months of “the last date for which compensation was paid” under an award. But what counts as compensation under an award? The answer determines when your clock started to file a change-in-condition claim and whether it’s still running.

 

Payments That Count

 

Temporary total disability (TTD) checks. Each payment resets the clock. If your last TTD check covered the week ending March 15, 2023, your 24-month deadline runs from that date.

 

Temporary partial disability (TPD) payments. Same rule. The last payment date controls.

 

Permanent partial disability (PPD) payments. These benefits have their own rule. If you received PPD, your deadline for seeking additional wage loss benefits shortens to 12 months from your last PPD payment, not 24 months.

 

Actual wages. The Virginia Workers Compensation Act considers all wages paid, for a period not exceeding 24 consecutive months, as compensation paid under an award if the injured employee is physically unable to return to their pre-injury work due the injury, but works light-duty for the pre-injury employer at a wage equal to or greater than their pre-injury wage.

 

Payments That Don’t Count

 

Medical bill payments. Here’s where it gets complicated. Medical payments alone generally do not reset the deadline for wage loss claims under § 65.2-708. The statute distinguishes between compensation for disability (which resets the clock) and medical benefits (which don’t). But if you have a medical-only award and are seeking to add wage loss, consult an attorney. The analysis is fact specific.

 

Mileage reimbursement. Mileage counts as a medical benefit. If the insurer reimbursed your travel to a doctor’s appointment last month, that payment does not reset the clock.

 

Voluntary payments without an award. If the insurer paid you but no award was ever entered, those payments don’t trigger § 65.2-708. You may, however, still be within the initial two-year statute of limitations, or you may have a tolling argument under § 65.2-602.

 

Salary continuation. If your employer paid your regular wages during your recovery but there was no award, that’s not “compensation under an award.” You may, however, have a viable de facto award argument.

 

Settlement payments. A lump sum settlement that closes your claim ends your right to future benefits. There’s no deadline to calculate because there’s no claim to reopen once the settlement is final.

 

Light-Duty Wages: The Loophole

 

This catches insurers off guard regularly.

 

Under Virginia law, if you returned to light-duty work with your pre-injury employer and earned wages equal to or greater than your pre-injury average weekly wage, those wages may count as “compensation” for statute of limitations purposes for up to 24 consecutive months.

 

What this means. If you worked light duty at full pay for any length of time within two years of the injury date (if you never received wage loss payments) or, if you had an award of compensation, within two years after your TTD stopped, the 24-month clock may not have started until those wages ended.

 

Example. Your TTD benefits stopped January 1, 2022, when you returned to light duty. You worked modified duty at full pay until December 31, 2023, when your employer terminated you. The insurer argues your deadline expired January 1, 2024 (24 months from last TTD). But if light-duty wages count as compensation, your deadline may run from December 31, 2023, giving you until December 31, 2025.

 

I’ve used this argument to save cases that defense counsel was certain were time-barred. The payment ledger and wage records are essential evidence.

 

The 36-Month PPD Deadline

 

Permanent partial disability benefits have a longer deadline: 36 months from the date of accident, or – if compensation has been paid under an award – 36 months from the last date for which compensation was paid, whichever is later.

 

This matters because PPD claims often aren’t ripe until long after the initial injury. You can’t get a permanent impairment rating until you reach maximum medical improvement (MMI), which may take years for serious injuries.

 

Strategy notes. If you’re approaching the 36-month mark and haven’t reached MMI, file your change in condition application seeking PPD anyway and ask the Commission to hold it in abeyance. This protects your rights while you wait for your doctor to declare MMI. Typically, I file an assertion of rights seeking and preserving a claim for PPD benefits as part of my clients’ original claim for benefits.

 

Medical Treatment Has No Separate Deadline

 

Your lifetime medical award doesn’t expire, as long as you have an open award and the treatment is causally related to your work injury.

 

If you have an award that includes medical benefits, you can seek authorization for treatment related to your work injury at any time: five years later, ten years later, or longer. The 24-month and 36-month deadlines apply to wage loss and PPD claims, not medical care.

 

This also applies to compensable consequence injuries. If your original knee injury leads to a hip problem from altered gait, the medical treatment for that hip is covered under your existing award. You don’t need to file a new claim. You need authorization under the award you already have.

 

Waiver: The Key Difference from Initial Claims

 

Here’s something most injured workers don’t know. The change in condition statute of limitations can sometimes be waived.

 

For initial claims, the two-year deadline is jurisdictional. The Virginia Workers’ Compensation Commission loses power to hear the case, and the parties cannot agree to extend it.

 

Change in condition deadlines work differently. Because the Commission already has jurisdiction over your case (you have an existing award), the employer and insurer can waive the statute of limitations defense through conduct or agreement. Waiver is narrowly construed, highly fact-specific, and the Commission will not infer it lightly.

 

When waiver may apply:

 

• The insurer continued authorizing medical treatment after the deadline passed without raising the defense

 

• The employer made statements suggesting the claim remained open

 

• The insurer made voluntary payments that induced you not to file

 

Not every authorization or payment will support waiver; the conduct must reasonably induce delay. Waiver is harder to prove than simply being within the deadline, but it’s a real doctrine that has saved cases.

 

The 90-Day Rule Is Not a Statute of Limitations

 

Don’t confuse the 90-day rule with the statute of limitations. They’re different.

 

The statute of limitations determines whether you can recover benefits – period. Miss it, and your claim is barred.

 

The 90-day rule determines how far back your benefits go once you file. Even if you file within the statute of limitations, you only recover wage loss benefits for the 90 days before your filing date. Anything before that window is lost.

 

Example. Your light-duty job ended January 1. You file your change in condition application on July 1, well within the 24-month deadline. You’re entitled to reopen your case. But you only recover wage loss benefits back to April 1 (90 days before filing). The five months of lost wages from January through March are gone.

 

The 90-day rule is why I tell clients to file immediately when their condition changes, even if they don’t have all their evidence together. File first, develop the case second. This approach to workers comp cases differs from the best approach in civil litigation.

 

How to Calculate Your Deadline

 

Step 1: Identify your last compensation payment. Request the payment ledger from the insurer. Look for the last TTD, TPD, or PPD payment. Note the date.

 

Step 2: Determine if light-duty wages extend the clock. Did you work modified duty at full pay after your last indemnity payment? If so, those wages may count as compensation for up to 24 months. Pull your earnings statements.

 

Step 3: Identify what benefits you’re seeking. Wage loss only? The 24-month rule applies (or 12 months if you received PPD). PPD? You have 36 months. Medical treatment? No separate deadline under an open award.

 

Step 4: Calculate. Add the applicable period to your last compensation date. That’s your deadline.

 

Step 5: When in doubt, file. If the calculation is close or unclear, file your change in condition application immediately. You can sort out the deadline dispute later. What you can’t do is un-miss a deadline.

 

Cases I’ve Saved on Change in Condition Deadlines

 

The Light-Duty Wage Case

After receiving a lifetime medical award for a back injury, a hospitality employee in Williamsburg worked light duty for more than two years before being terminated. The insurance defense attorney argued the case was time-barred because there had been no claim for TTD within the two-year statute of limitations for an original claim. But the light-duty wages extended the statute of limitations, allowing the employee to bring a strong change in condition claim. We settled shortly after raising the issue.

The PPD Timing Case

A client waited until month 35 to file for PPD, worried he hadn’t reached MMI yet. We filed the application and asked the Commission to hold it in abeyance. His doctor declared MMI four months later. Because we filed before the 36-month deadline, his claim survived.

 

What If You’ve Missed the Deadline?

 

If you’re past the 24 or 36 months, your options are limited but not always zero.

 

Check for waiver. Did the insurer’s conduct suggest the claim was still open? Did they authorize treatment, engage in settlement talks, or make representations about your benefits?

 

Check your payment history. Are you sure about the last payment date? Request the full ledger. Mileage reimbursements, late-arriving checks, and light-duty wages can all affect the calculation.

 

Check whether you’re seeking medical treatment. If you only need authorization for medical care, not wage loss, there may be no deadline issue at all as long as you have an open award.

 

Check for multiple periods of disability. Each period of compensation can create its own deadline. If you had a second period of TTD after returning to work and then going back out, the clock may have restarted.

 

Frequently Asked Questions

 

How long do I have to reopen my Virginia workers comp case?

For wage loss benefits like TTD or TPD, you have 24 months from the last date compensation was paid under an award. For permanent partial disability, you have 36 months. Medical treatment under an open award has no separate deadline. If you previously received PPD benefits and are now seeking additional wage loss, you have only 12 months from your last PPD payment.

 

Does receiving medical benefits extend my deadline to file for wage loss?

No. Medical bill payments and mileage reimbursements do not reset the clock for wage loss claims under Virginia Code § 65.2-708. The statute distinguishes between compensation for disability (which resets the clock) and medical benefits (which don’t).

 

Can the statute of limitations be waived for a change in condition claim?

Yes. Unlike the initial two-year filing deadline (which is jurisdictional), the change in condition deadline can be waived by the employer or insurer through conduct or agreement. This may occur when the insurer continues authorizing treatment after the deadline passes or makes statements suggesting the claim remains open.

 

What is the 90-day rule in Virginia workers compensation?

The 90-day rule limits how far back you can recover benefits. Even if you file within the statute of limitations, you only recover wage loss benefits for the 90 days before your filing date. This is separate from the statute of limitations, which determines whether you can file at all.

 

Do light-duty wages count as compensation for statute of limitations purposes?

Yes, under certain conditions. If you worked light duty for your pre-injury employer at wages equal to or greater than your pre-injury average weekly wage, those wages may count as “compensation” for up to 24 consecutive months, potentially extending your deadline.

 

What happens if I miss the deadline to reopen my workers comp case?

Your options are limited but may include checking for waiver, verifying your payment history for errors, and determining whether you’re only seeking medical treatment (which has no separate deadline). Each period of disability can create its own deadline, so review your full claim history.

 

Don’t Guess. Call.

 

Change in condition deadlines involve judgment calls that can determine whether you recover tens of thousands of dollars or nothing.

 

If you’re approaching a deadline, past a deadline, or unsure how to calculate yours, call me at (804) 251-1620. I’ll review your payment history and tell you where you stand. Or, if the information is unavailable, how the discovery phase can help you uncover the evidence needed to win.

 

The five minutes it takes to check could save your case.