What to Expect at Your Virginia Workers Compensation Hearing – Call Workers Comp Lawyer Corey Pollard
Your heart is beating fast and you start to sweat. You look panicked. Tens of thousands of dollars in workers compensation benefits, including lifetime medical treatment, temporary total disability payments, and permanent disability compensation, are at stake. But you don’t feel prepared and the judge is asking you to present your case at a Virginia workers compensation hearing.
Are you prepared for your hearing? Do you know what testimony to give and what evidence to present? Did you conduct discovery so that you could build and develop your case? Do you know what questions will be asked of you and what questions you should ask other witnesses?
If you’re going through the Virginia workers compensation claim process, we can help. This article explains what happens at Virginia workers compensation hearings and what you can do to increase your likelihood of success. A win at your workers comp hearing can help you get not only all the workers comp benefits you deserve but also a top-dollar workers compensation settlement.
You can handle your own work injury claim. But we don’t recommend it. Hire experienced workers compensation attorney Corey Pollard today.
We’ve helped hundreds of injured employees get approved for benefits at workers comp hearings before the Virginia Workers Compensation Commission and disability hearings before the Social Security Administration (SSA). We know how to build and develop supportive evidence and how to present the strongest case possible in front of the judge at your workers comp hearing. We’ll also cover the upfront costs associated with taking your case to hearing. And there is no fee unless you get benefits.
Getting from Workers Compensation Claim to Workers Compensation Hearing
After you file your claim for benefits or the employer files an application for hearing, the Commission will try to help the parties resolve the matter informally.
If you’ve filed an initial claim for benefits or a change in condition application seeking additional benefits, the Commission will send a 20-Day Order to the employer and its insurance company asking if your claim is accepted. If your claim is accepted then the employer should send you an award agreement form. The employer may say that your claim is denied. If so then the employer must state the reason for its denial, though the explanation does not have to be specific and can simply state that your claim is still being investigated.
The Workers Compensation Commission may refer your case to the Alternative Dispute Resolution (ADR) Department, which handles workers compensation mediations in Virginia. Usually this happens if you’ve filed a change in condition application or if the employer has filed an application to suspend benefits.
In my opinion issue mediation is not a good idea if you’ve filed a change in condition application. These claims are usually all or nothing affairs. It’s difficult to find a compromise. Unless you’re interested in a full and final settlement, mediation may not be successful.
If the parties are unable to resolve the claim through mediation, or if either party says that it is not interested in mediation, then the Commission will refer your claim to the hearing docket.
Types of Workers Compensation Hearings in Virginia
The Commission provides for two types of hearings. If hearing testimony is not required then the case may be referred for a decision based on the record. If the case is more complicated and the parties would benefit from hearing testimony then the Commission will schedule an evidentiary hearing.
Virginia Workers Compensation Commission On the Record Decision
Rule 2.1 of the Rules of the Virginia Workers Compensation Commission explains when a decision on the record is appropriate. The rule states:
When it appears there is no material fact in dispute as to any contested issue, determination will proceed on the record. After each party has been given the opportunity to file a written statement on the evidence supporting a claim or defense, the Commission shall enter a decision on the record.
If your claim is chosen for a decision on the record, the Commission will issue a schedule for written statements. Usually each party has 20 days to submit its initial written statement and an additional 10 days to respond to the other party’s initial written statement. The Commission will allow additional time to file a written statement if you have a good reason for requesting additional time.
The benefit of receiving an on-the-record determination is that you will likely receive a decision much quicker than if you go to a full workers compensation evidentiary hearing. A few months quicker, in fact. But a fast decision is not a good thing unless you’re able to present all the evidence in support of claim and win.
Sometimes claims are referred for an on the record decision even though one or both of the parties may want an evidentiary hearing to prevent live testimony. You may request an evidentiary hearing if the Commission refers your case for an on the record decision, but you must act quickly and provide sufficient reason for needing an in-person workers comp hearing. You have 10 days from the date of the on-the-record hearing notice to file an objection.
A few take-away points about on the record decisions with the Virginia Workers Compensation Commission:
- An experienced workers comp attorney will know which cases are likely to be referred for an on the record decision. If yours is one of them, it’s important that you obtain all supportive evidence before filing the claim. It can take weeks to get supportive medical records and to develop the record. You want to be ready to go as soon as you file the claim. 20 days is not much time to get everything together.
- Take the written statement seriously. Make sure it contains a good statement of facts, on-point case law, and weaves together a good story that explains why you deserve benefits.
- Attach supportive medical evidence, impairment ratings, and marketing evidence to your written statement.
- Request an in-person hearing if your testimony will help at all. For example, your testimony can be helpful in explaining why you deserve a higher percentage impairment rating and additional permanent partial disability benefits.
- Request an in-person hearing if you have a pre-existing condition or there is conflicting medical evidence. It’s important that you be allowed to tell your story.
Virginia Workers Compensation Evidentiary Hearings
If your case requires a formal evidentiary hearing, also known as a workers compensation trial, then it will be referred to the hearing docket.
Statute Addressing Virginia Workers Compensation Hearings
Virginia Code Section 65.2-704 states:
A. The Commission or any of its members or deputies shall hear the parties at issue, their representatives, and witnesses; shall decide the issues in a summary manner; and shall make an award or opinion carrying out the decision.
B. Any member of the Commission who hears the parties at issue and makes an award under the provisions of subsection A shall not participate in a rehearing and review of such award provided under Section 65.2-705.
C. Hearings convened by the Commission shall be public proceedings and, upon proper request to the Commission, may, in the discretion of the Commission, be video recorded for public broadcast at the expense of the requesting party, subject only to the same limitations and conditions as apply to court proceedings in the Commonwealth.
In other words the statute addressing workers comp hearings states that the parties have the right to legal representation at hearing, can present witnesses and other evidence, and that the deputy commissioner who decides the case after trial cannot decide the case if it is appealed to the full Workers’ Compensation Commission.
Which Deputy Commissioner Hears the Case?
Your case is assigned to a deputy commissioner who hears cases in the territory where your workplace accident happened. Each deputy commissioner has wide discretion to conduct the workers comp hearing in the best way that he or she sees fit.
This is why having a local workers compensation attorney can help. He or she will have likely had many cases in front of the deputy commissioner assigned to your case and can adjust trial strategy based on that experience.
How Long is the Workers Compensation Hearing?
The Commission’s rules state that each party has 20 minutes to present evidence at hearing unless the parties ask the Commission for additional time.
Despite this rule the Commission usually schedules hearings for 30 minutes total. This is not enough time in most cases.
We recommend asking for at least one hour in all workers compensation hearings, even if the injured employee is the only witness. Notify the Commission immediately if the case will involve multiple witnesses, vocational rehabilitation counselors, medical providers, accident reconstruction experts, or private investigators who have conducted surveillance. You may need several hours for a hearing with multiple witnesses.
In our experience the Commission will grant the request for extra time automatically, though it may want an explanation as to why you need so much time.
At hearing the deputy commissioner will ask the parties if there are any stipulations, or things on which they agree. Common stipulations include: the pre-injury average weekly wage; whether notice was given; who the treating physician is; and, whether the treating physician disabled the injured employee for certain periods.
The deputy commissioner will read these stipulations into the hearing record. They will become part of the case.
What Evidence Do I Present at My Workers Compensation Hearing?
Unless the hearing is on an employer’s application to suspend or terminate benefits, the injured employee has the burden of proving that he or she is entitled to the benefits sought. You must, therefore, present evidence in support of your claim.
The Commission will admit the records and reports of physicians and medical providers into evidence. This is done by filing a medical designation with the Commission at hearing. Usually I file my client’s designation the day before the hearing so that a copy is available on WebFile. I also take a copy of the medical designation to the hearing.
Each party must designate, by author, deponent, and date, medical records, reports, or depositions to be received into evidence. Usually I include a brief description of the report (i.e., office visit, response to questionnaire, narrative statement, work restriction note, emergency department note, etc.). These records and reports are admitted into evidence.
After the deputy commissioner has clarified all issues in dispute and admitted medical designations into evidence, all witnesses and interpreters are sworn in under oath. The attorneys will then examine the witnesses, much like what happens in civil and criminal trials. The first attorney conducts a direct examination of the witness. The second attorney cross-examines the witness. And then the first attorney is allowed to conduct a re-direct examination.
The deputy commissioner has the right to ask questions of each witness. And this happens often. The deputy commissioner’s questions give the parties a good idea of what he or she thinks is important in the case. These questions can be used to develop the testimony further.
Your attorney will likely ask you questions addressing the following: age; address; marital status; number of dependents; work history; prior medical history and conditions; your employment with the company you worked for at the time of the injury; when you gave notice of the work accident and injuries; your normal job duties; how the accident and injury happened; your medical treatment; your work status since the accident; your job search and marketing efforts; and, how your current symptoms and condition differ from any prior problems you had and affect your life.
During witness testimony an attorney has the right to make objections – both to the question, the testimony, and any document introduced into evidence. An objection must be made to preserve the record for appeal.
If an attorney wishes to introduce testimony or evidence into the record, but is denied that right, he or she may proffer the evidence to preserve his or her client’s rights on appeal.
Unless otherwise specified, the evidentiary record will close at the conclusion of hearing. The deputy commissioner will issue a written decision in the weeks following the hearing.
Answers to Common Questions about Workers Compensation Hearings in Virginia
Below are answers to some of the common questions we receive from injured workers with a hearing scheduled.
How do I file documents that I would like to use at my workers compensation hearing?
The Commission encourages injured workers and employers to file claims, change in condition applications, employer applications, medical records, medical reports, questionnaire responses from treating medical providers, motions, correspondence, and all other documents using the WebFile program. WebFile is the Commission’s electronic document portal and you can access it using the internet. Make sure that you use the appropriate category and description when filing the document.
How do I get my hearing postponed so that I can hire an attorney or get a supportive report from my doctor?
Rule 2.2(A) states that the parties should be prepared to present evidence at the time and place scheduled for hearing. Any party may file a motion to continue the hearing, but it will only be granted when it appears that material or irreparable harm may result if the motion for continuance is not granted.
As a general rule the Commission will grant a continuance if both parties agree to it. The Commission is also likely to grant a continuance if you’re looking to hire an attorney or if a doctor is not available for deposition until after the scheduled hearing date.
Usually the Commission will not, however, grant a continuance because defense counsel received the claim file from the insurance company late.
What if the injured worker needs an interpreter at hearing?
The Workers’ Compensation Commission will arrange for an interpreter to be present at hearing if a request is made more than 30 days prior to the scheduled hearing. The request should contain the specific language in which testimony will be presented to the court.
The Commission does not charge for providing interpreter services.
How do I get an expedited hearing?
The Commission will consider a request for an expedited hearing under Rule 2.3. A quicker hearing date is given only if an employee has proven that he or she suffered a compensable injury by accident arising out of and in the course of his or her employment and can show that the failure to grant an immediate hearing will cause severe financial hardship.
What happens if I fail to appear at the hearing?
The Commission will dismiss your case without prejudice if you fail to show at hearing. If you’ve failed to attend more than one hearing or have refused to answer discovery or attend your deposition, however, then the Commission may find that you’re abusing the hearing process and dismiss your claim with prejudice. Such a finding bars you from obtaining additional workers compensation benefits.
If you fail to attend a hearing on the employer’s application for hearing, then the workers’ comp hearing will go forward unless the employer had subpoenaed you to attend.
Can I take a nonsuit in my workers compensation claim?
Yes, you can take one nonsuit in your workers compensation case. This means that you can withdraw a claim or application for hearing until the time the evidentiary record closes.
Before taking a nonsuit, however, make sure that you are still within the applicable statute of limitations or that your case will not be damaged by the 90-day rule. If you take a nonsuit after the statute of limitations has passed then you may be barred from receiving additional compensation or medical treatment.
Have a question about your workers compensation hearing? Looking for help at your workers comp trial? Then call, text, or email Corey Pollard today. We represent injured employees and their families at workers compensation hearings throughout Virginia, including those in Richmond, Virginia Beach, Roanoke, Christiansburg, Spotsylvania, Fairfax, Hampton, Prince William County, and Manassas. And we want to help you win.
If you’re unable to return to work more than one year after your industrial accident we can also help you get approved for disability benefits. As a Richmond disability lawyer and Virginia Beach SSD attorney, I’ve helped hundreds of disabled adults qualify for SSDI and SSI benefits.