Nothing in this article should be taken as legal advice. Every case is different.
If you drive a live-haul, feed, or processed-chicken truck as an employee and you get hurt doing that job, Virginia workers’ comp usually covers you. Comp covers an “injury by accident arising out of and in the course of the employment” (Va. Code § 65.2-101), and for a driver the road is the workplace. Two common ways drivers lose coverage are when the company calls them an owner-operator and when nobody can explain how the crash happened.
What Counts as “On the Job” for a Truck Driver?
For a driver, the job happens on public roads, at farms, at the plant, and at the docks in between. The Court of Appeals of Virginia treats truck drivers as one of the groups of workers who, “by the very nature of their employment, are required to be present upon the public streets” (a Court of Appeals decision involving Southern Tank Transport, Inc., 44 Va. App. 725, 607 S.E.2d 730 (2005), quoting an earlier Court of Appeals case).
But you also have to show the injury came from an actual risk of being on the road. In that case, a tractor-trailer driver’s rig ran off the road and overturned. He couldn’t remember the crash, and nothing else explained it. The Commission denied the claim, and the Court of Appeals agreed, because “facts must exist to explain how the accident occurred.”
A blown tire, a deer, a slick ramp, a shifted load, or another driver cutting you off all explain a crash. “I don’t know what happened” usually doesn’t.
Which Poultry Hauling Injuries Does Workers’ Comp Cover?
- Crashes and rollovers, on highways, farm lanes, and plant lots.
- Falls from a loading dock, a trailer deck, or the cab steps.
- Forklift injuries while loading feed or pallets of processed product.
- Being struck by another vehicle or a shifting load while chaining, strapping, or tarping.
- Crush injuries from trailer doors, liftgates, and live-haul cages and modules.
- Back, shoulder, and knee injuries from lifting or pulling during loading.
The insurance company will look hard at a back injury from loading. Virginia covers injury “by accident,” and the adjuster will often argue that a sore back built up over months wasn’t one. Tell the doctor exactly which lift, which load, and which day.
What If the Company Calls You an Owner-Operator?
A paper label doesn’t decide it, but Virginia does have a specific rule for truckers. The law takes an owner-operator out of the definition of “employee” only when the truck is leased with or to a common or contract carrier in the trucking industry, the contract says the owner-operator is an independent contractor and is not treated as an employee for federal payroll, unemployment, and income tax purposes, and “each of the following factors is present” (Va. Code § 65.2-101, “Employee,” subdivision 2(o)):
- “The owner-operator is responsible for the maintenance of the vehicle.”
- “The owner-operator bears the principal burden of the vehicle’s operating costs.”
- “The owner-operator is the driver.”
- “The owner-operator’s compensation is based on factors related to the work performed and not on the basis of hours or time expended.”
- “The owner-operator determines the method and means of performing the service.”
If even one of those is missing, the owner-operator rule doesn’t apply, and the question goes back to the general test of whether the company controls how you work. Our post on what to do when your employer lists you as an independent contractor walks through that test.
If you really are an owner-operator who meets every part of that rule, Virginia workers’ comp generally won’t cover you. Your own insurance and your lease are outside this article.
What If Another Driver Caused the Crash?
You can still get workers’ comp, and you may also have a separate claim against the at-fault driver. Comp doesn’t depend on fault. Our page on car accidents at work in Virginia covers how fault does and doesn’t matter.
When another driver is to blame, two things are true at once under Va. Code § 65.2-309:
- The comp insurer gets a lien. Your comp claim creates a lien for the employer (which includes its insurance company) against any settlement or verdict you get from the other driver.
- The insurer can pursue the other driver too. The law also gives the employer your rights against that driver, so it can go after them in its own name or yours. It can’t settle that claim on its own without the approval of both you and the Commission.
Attorney’s fees and costs from that recovery are split between you and the employer in proportion to what each gets (Va. Code § 65.2-311). And a recovery from the other driver doesn’t, by itself, end your comp award. The insurer takes a credit spread across future benefits instead (Va. Code § 65.2-313).
A claim against a negligent driver is a separate case with its own rules and deadlines, and this article doesn’t cover it. Pathfinder Injury Law handles the workers’ comp side, and we may be able to point you to a lawyer who handles the other.
What If the Crash Happened in Maryland or Delaware?
A Virginia employee hurt outside Virginia can still get Virginia benefits if you were hired in Virginia, the employer’s place of business is here, and your hiring agreement wasn’t expressly for work only outside Virginia (Va. Code § 65.2-508). Another state’s system may also apply, and this article doesn’t cover it.
Truck Driver Injury Situations at a Glance
| Your situation | What usually happens |
|---|---|
| Employee driver hurt in a crash with a known cause | Workers’ comp covers medical care and part of your lost wages |
| Employee driver hurt in a crash nobody can explain | The insurer will argue the injury didn’t arise out of the job, and it has won that argument before |
| Hurt on a dock, by a forklift, or while chaining or tarping | Covered like any other injury by accident at work |
| Called an owner-operator, but one of the five factors is missing | You may still be an employee; the Commission decides |
| Another driver caused the crash | Comp still pays, the insurer gets a lien, and you may have a separate claim against that driver |
What Should You Do First After a Truck Accident at Work?
- Get medical care, and tell the doctor it happened at work. Name the specific event. The insurer has to give you a panel of at least three doctors to choose from (Va. Code § 65.2-603).
- Report it in writing within 30 days. Give your employer written notice of the time, place, and cause (Va. Code § 65.2-600).
- Write down how it happened while you remember: weather, road, load, truck problems, and any other vehicle. Get the police report number and witness names.
- Keep your logs and paperwork, including your lease or contract, your pay stubs, and any electronic driving records you can get.
- Think before giving a recorded statement to either insurance company.
- File a claim with the Commission within two years of the accident (Va. Code § 65.2-601), even if the insurer is paying. Here’s how to file a workers’ comp claim.
Drivers who also work the plant floor can read our guide to poultry plant injuries and workers’ comp.
Hurt Driving a Poultry Truck? Call Pathfinder Injury Law
Pathfinder Injury Law is the only workers’ comp firm with an office on the Eastern Shore, in Chincoteague. Learn more about our Eastern Shore workers’ comp practice. Pathfinder Injury Law handles only Virginia workers’ compensation claims. Call 804-505-0633 or use our online contact form.