Herniated Disc at Work in Virginia: Workers’ Comp and Settlements

Nothing in this article should be taken as legal advice. Every case is different.

Virginia workers’ comp covers a herniated disc in your neck or low back when a specific accident at work caused it, such as a heavy lift, a twist with a load, or a fall. It can pay for your treatment, including injections and surgery, two-thirds of your average weekly wage while you can’t work, and, if the disc leaves permanent nerve damage in an arm or leg, a set number of weeks of pay for that loss of use. There is no average settlement for a herniated disc. And in almost every disc claim, the insurance company argues that the disc was already worn out before you got to work.

What Virginia Workers’ Comp Pays for a Herniated Disc

Workers’ comp does not pay for pain and suffering. Wage checks are not paid for the first seven days you are out of work, but if you are out more than three weeks, those first seven days are paid too.

What a Herniated Disc Is, in the Neck and the Low Back

A disc is the soft cushion between two bones of your spine. A herniation happens when the soft center pushes through the tough outer ring, where it can press on a nerve (AAOS). Where the disc is decides where you feel it:

• Low back (lumbar). Pain often starts in the back, then sciatica: sharp, shooting pain from the buttock down the back of one leg, with numbness, tingling, or weakness in the leg or foot (AAOS).
• Neck (cervical). Pain typically starts in the neck and travels down the arm, with tingling, numbness, or weakness in the shoulder, arm, or hand (AAOS). Doctors call this cervical radiculopathy, or a pinched nerve.

That arm-or-leg pattern is how doctors tie the disc to your symptoms, and it is the usual route to a permanent rating. Loss of bladder or bowel control with a low back disc is rare, but it is a medical emergency (AAOS).

Does Workers’ Comp Cover a Herniated Disc?

Virginia workers’ comp covers a herniated disc when an identifiable incident at a reasonably definite time causes a sudden mechanical or structural change in your body. The accident must also happen in the course of your job and arise out of it, meaning an actual risk of your work caused it (Va. Code § 65.2-101). For discs, that rule splits cases into three groups:

Many disc claims are lost in the middle row. Tell a doctor your back “has been getting worse for months” and leave out the pallet you lifted on Tuesday, and the insurance company will call it gradual onset. Tell every doctor the specific moment: what you lifted, how heavy, how you were turned, and what you felt.

Does It Matter Whose Fault It Was?

Generally, no. A disc you herniated lifting the wrong way can still be covered, because workers’ comp doesn’t turn on whether you were careless. A few defenses do turn on your conduct, such as the willful breach of a safety rule you knew about, and the insurance company has to prove them (Va. Code § 65.2-306). If your employer’s fault caused it, such as no lift equipment or too few people for the job, workers’ comp is still generally your only remedy against your employer (Va. Code § 65.2-307).

The “Degenerative Disc” Defense

Expect the insurance company to say your herniated disc is degenerative, meaning age-related wear and tear, not a work injury. It is one of the most common defenses in disc claims, and one of a few of many the insurance company can raise.

The defense works because MRIs of adults who have no back pain at all often show disc changes. A review of imaging studies of people with no symptoms found disc degeneration in 37% of 20-year-olds, 68% of 40-year-olds, and 88% of 60-year-olds. Disc bulges showed up in 30%, 50%, and 69% of those same age groups (Brinjikji et al., American Journal of Neuroradiology, 2015). Orthopedic surgeons also list age-related wear as a leading cause of herniated discs, alongside improper lifting, twisting while lifting, and falls (AAOS).

So the insurance company’s doctor can almost always find “degenerative changes” on your MRI. That does not end your claim. What usually decides it:

• The timing. Were you working full duty, without treatment for your back or neck, right up until the accident? Gaps in prior treatment help.
• The new findings. A new herniation, a fragment pressing on a nerve, or new arm or leg symptoms that match that level of the spine point to a structural change, not just old wear.
• Your doctor’s words. The treating surgeon’s written opinion that the accident caused the herniation, or structurally worsened an older condition, is often the deciding evidence. The insurance company will usually get the opposite opinion from its own doctor. Here’s what happens after a workers’ comp IME in Virginia.

Steps to Take After a Disc Injury at Work

1. Get medical care. Tell every doctor the injury happened at work and exactly what you were doing, so your records say so from the start.
2. Give your employer written notice within 30 days. Virginia law requires you to notify your employer within 30 days of the accident. Do it in writing. Late notice can limit or even bar your benefits.
3. Write down the details. The object, its weight, your position, the time, and who saw it. In a disc case, these facts often decide whether the claim is an accident or “wear and tear.”
4. File your claim with the Virginia Workers’ Compensation Commission. Notice to your employer is not the same as a claim. The claim must generally be filed with the Commission within two years of the accident, although exceptions apply (Va. Code § 65.2-601). File it even if the insurance company accepts your injury and starts paying.
5. Watch for the insurance company’s answer. After you file, the Commission will order the insurance company to respond within 30 days. Whatever it decides, you can ask the Commission for a hearing.

Treatment for a Herniated Disc: Therapy, Injections, Surgery

Most herniated discs are treated without surgery first. For the low back, that usually means a day or two of rest, anti-inflammatory medicine, and physical therapy. Epidural steroid injections can give short-term relief, and the evidence supports them for people not helped by 6 weeks or more of other nonsurgical care. Most people feel better within a few weeks or months without surgery, and only a small percentage of people with a low back herniation need surgery (AAOS). Neck discs are treated much the same way, sometimes with a short time in a soft collar (AAOS).

When surgery is needed:

• Low back. A microdiscectomy, removing the part of the disc pressing on the nerve, is the most common surgery for a single herniated disc. Surgery is usually recommended after nonsurgical care fails, or sooner for muscle weakness, trouble walking, or loss of bladder or bowel control (AAOS).
• Neck. The most common surgery is an anterior cervical discectomy and fusion (ACDF): the disc is removed through the front of the neck and the bones are fused into one. Other options include an artificial disc replacement and a laminoforaminotomy from the back of the neck. A fusion can take 6 to 12 months to become solid (AAOS).
• It can happen again. With or without surgery, a low back disc has up to a 20 to 25% chance of herniating again in your lifetime (AAOS).

When the Insurance Company Fights the Surgery

The insurance company is required to pay for treatment that is reasonable, necessary, and related to the accident (Va. Code § 65.2-603). That doesn’t mean it will. Spine surgery is expensive, and the usual arguments are that surgery isn’t needed yet, or that it is for degeneration rather than the accident. If it refuses, you can ask the Commission for a hearing.

Refusing treatment your doctor recommends, without a good reason, can stop your wage checks until you accept it (same law). In most cases you choose your treating doctor from a panel of at least three that the employer offers (same law). That doctor’s opinions on surgery, restrictions, and your rating carry a lot of weight.

Time Out of Work and Light Duty

While your doctor keeps you out of work, you are owed wage checks at two-thirds of your average weekly wage (Va. Code § 65.2-500). Once you are released to light duty, the rules change. If your employer offers a job within your restrictions and you refuse it, your checks can stop for as long as the refusal lasts, unless the Commission finds the refusal justified (Va. Code § 65.2-510). If the light-duty job pays less, you may be owed two-thirds of the difference (Va. Code § 65.2-502).

Whether you can ever return to a heavy job is one of the biggest questions in the value of a disc claim.

Can You Get a Permanent Rating for a Herniated Disc?

Not for the disc itself. Virginia’s schedule of body parts lists arms, legs, hands, feet, and others, but not the back or the neck (Va. Code § 65.2-503). Virginia’s Court of Appeals has, however, “read the statute to allow compensation for any work-related injury which manifests itself in a scheduled member,” and upheld an award for loss of use of a leg caused by a back injury (Washington Metropolitan Area Transit Authority v. Rogers, 17 Va. App. 657, 659 (1994)).

In practice:

• A neck disc that leaves lasting weakness or numbness in an arm can support a rating for loss of use of the arm (200 weeks).
• A low back disc that leaves lasting weakness or numbness in a leg can support a rating for loss of use of the leg (175 weeks), and sometimes both legs.
• A rating has to come after maximum medical improvement (when your doctor says you are as healed as you are going to get) and has to be stated as a loss of use of a scheduled member, not of the spine. A rating written only as a percentage of the “whole person” or of the spine does not fit Virginia’s schedule, so the doctor needs to state it as a percentage loss of use of the arm or leg.

Each week is paid at your compensation rate. If your pain never reaches an arm or leg, there may be no rating at all. Our guide to impairment ratings in Virginia workers’ comp explains how ratings are done and disputed.

In rare, severe cases, a spine injury that takes away the use of both legs, or causes total paralysis for all practical purposes, can be treated as permanent and total incapacity (same law).

What Is a Herniated Disc Worth in Virginia?

No one can fairly value a disc claim without the medical records. What usually moves the value:

• Whether the accident qualifies at all, especially when the insurance company calls it gradual onset
• The “degenerative” defense, and how strong your surgeon’s causation opinion is
• Surgery, and especially a fusion, which tends to mean longer recovery and more permanent restrictions
• Future medical care, including the chance of a second herniation, a second surgery, injections, or pain management, since a full and final settlement usually closes your medical benefits for good
• Your average weekly wage, and how long you are out of work
• Whether you can return to heavy work, or whether permanent lifting limits cut your earning power
• An arm or leg rating, if the nerve damage lasts

A settlement is optional, and the Commission must approve it (Va. Code § 65.2-701). Settle before a recommended surgery, and workers’ comp will usually not pay for it later. Here’s more on how a Virginia workers’ comp settlement is calculated.

One of our past results: Settlement obtained in a lumbar herniation case before the Virginia Workers’ Compensation Commission ($240,000). Every case is different, and past results don’t predict the result in yours.

Herniated Disc Questions

Does workers’ comp cover a bulging disc?

It can, on the same terms as a herniation: a specific work accident must have caused a structural change that explains your symptoms. Because bulges show up on MRIs of many people with no pain at all, expect the insurance company to call a bulge degenerative. Your doctor’s opinion connecting it to the accident, and your symptoms matching that level of the spine, matter even more.

What if my symptoms showed up a day or two later?

Disc symptoms don’t always start at the moment of the lift. A delay does not by itself defeat the claim, but it gives the insurance company room to argue that something else happened in between. Report the specific incident to your employer and your doctor as soon as you connect your symptoms to it.

For more on other back and neck injuries, see our guide to what to do after a spine injury at work.

Talk to Pathfinder Injury Law About Your Herniated Disc

Pathfinder Injury Law handles only Virginia workers’ compensation claims, including back injury claims. Call 804-505-0633 or use our online contact form.