What Happens When I Go to a Workers Comp Hearing?
Learn What to Expect When You Go to Trial for Your Work Injury Claim – and How to Increase the Likelihood that You Will Win
You resolve a disputed and denied workers compensation case through a settlement or trial.
Workers comp trials are called evidentiary hearings. The two terms – trial and hearing – are used interchangeably in workers compensation law.
Administrative law judges called Deputy Commissioners preside over workers comp hearings in Virginia (these court officers have different titles in some states). Workers compensation judges are neutral – they cannot develop or present evidence or otherwise help you prepare your case for trial.
These judges listen to live testimony, rule on motions, decide evidentiary objections, review the evidence presented by the parties, then issue a written decision.
Winning workers comp benefits (or keeping them) is the goal when trying a case before the Workers Compensation Commission.
This article discusses what to expect at your workers compensation hearing and explains how to present the best evidence at trial clearly and persuasively. The advice represents years of experience representing injured workers at trial (and before that, employers and insurance carriers), as well as writings from Deputy Commissioners and other judges.
If you have any questions about Virginia workers compensation after reading this article or are looking for a top-rated workers comp lawyer, call me for a free consultation: 804-251-1620 or 757-810-5614.
Winning your workers comp trial could be worth tens of thousands of dollars in wage loss and disability benefits or medical treatment (including surgery). In addition, it can give you leverage to negotiate a fair workers comp settlement.
However, a loss at trial can cause economic and financial adversity and prolong your physical pain and suffering.
An experienced and skilled attorney can increase your chance of success at trial and help make you whole after a work-related injury.
Do Workers Comp Cases Go to Trial?
Yes.
Workers comp is a mixture of administrative and tort law, with some cases requiring a trial to resolve disputed issues.
Why is My Workers Comp Case Going to Trial?
Many injured workers, insurance claim adjusters, and employers want to avoid trial in a workplace injury claim. But sometimes this is impossible.
A workers compensation hearing is necessary when your employer and its insurance company or third party administrator (Sedgwick, ESIS, Gallagher Bassett, Coventry, etc.) refuse to pay the benefits you are owed, and you are unable to agree on an amount that satisfies all the parties.
Workers comp trials can be used to resolve disputes over:
- Authorization and payment of denied medical treatment, including surgery, pain management, chiropractic care, prescription drugs, or therapy
- Whether you are capable of full duty work based on your actions or a physician’s release
- Whether your current disability (i.e., light-duty work restrictions) is related to the work accident or something else
- Whether you refused light duty work offered by your pre-injury employer or an employer found through vocational rehabilitation services
- Whether you refused medical treatment
- Whether you failed to cooperate with vocational rehabilitation efforts.
- Whether you refused to attend an employer-requested medical examination (IME).
In other words, the parties can present evidence at a hearing to address any disputed issue.
What Percent of Workers Comp Cases Go to Trial?
Only a tiny percentage of workers comp claims go to trial (under ten percent).
Instead, most work injury claims resolve by stipulations and agreement forms (resulting in a Workers Compensation Award Letter) or a settlement.
Several factors influence whether your claim settles without the need for trial. These factors include:
- The severity of your injury – catastrophic injury claims are more likely to settle
- The type of claim pending – cases are more likely to settle if they seek death benefits or permanent partial disability payments.
- The strength of the medical evidence – for example, whether you have a letter from your treating physician addressing causation, disability, and future medical needs
- The type of employer you work for and who handles its claims – private employers with insurance coverage or third-party administrators are more likely to settle than public entities such as state government or local municipalities.
- Whether you have private health insurance or government coverage (Medicare, Medicaid, Tricare, etc.) available – having other sources available to pay for medical treatment allows flexibility in settlement negotiations.
- Whether you have returned to work with the pre-injury employer – it is easier to settle a claim if you work somewhere else because the employer and insurer may ask you to sign a resignation and release as a settlement term.
- What income you have – there are additional benefits to settlement when you receive Social Security Disability, long-term disability, or state retirement benefits such as VRS disability.
- Whether you have a third-party claim arising from the work accident – for example, you can file a negligence action if someone else caused your work injury. Third-party lawsuits are common when there is a work-related car crash, construction accident, or a defective product to blame for the damage, making settlement more likely.
Do I Need a Lawyer for a Workers Comp Hearing?
Unlike full and final settlement mediation, the commission will allow injured workers to represent themselves at trial.
But just because you can do something does not mean you should do it.
I recommend hiring an attorney if your case is going to trial. Otherwise, you might be at a disadvantage. The defendants will have experienced legal representation to defend your work injury claim.
Pre-Trial Considerations: What Should I Do Before the Workers Comp Hearing to Prepare?
You will need facts to win your workers comp hearing.
The workers compensation discovery process is how you get them.
Pre-Trial Discovery Tools
Depending on what facts and documents you need to prove your case, consider doing the following:
- Send interrogatories to the employer and insurer. Here are sample interrogatories to use in your workers comp case.
- Send requests for the production of documents to the employer and insurer. Here are sample requests for production that I sometimes use.
- Take depositions of the claims adjuster, your authorized treating physician, and other important witnesses. Read more about workers comp depositions here.
- Send requests for admissions to the employer and insurer.
- Use the HITECH Act to request medical records from the doctors that have treated you for your work injuries or occupational disease.
- Obtain narrative reports and questionnaire responses from your treating physicians – see my doctor’s letter on causation and disability for guidance
- Ask a doctor to give you a permanent impairment rating under the AMA Guides so that you qualify for permanent partial disability benefits.
Remember that the insurance company can use the same discovery methods to develop facts supporting their defenses.
For example, it may request that you attend an Independent Medical Examination (IME) or Functional Capacity Evaluation (FCE).
Complete the Pre-Hearing Statement Order
Some deputy commissioners require the parties to complete and submit a Pre-Hearing Statement Order.
A Pre-Hearing Statement Order is a document that asks the parties to identify:
- the specifics of their claims
- what facts the parties agree to (stipulations)
- what defenses the insurer raises to your claim or that you raise to the application to stop benefits
- what witnesses may testify at the hearing
- whether there is additional evidence that either party expects to receive after the hearing
None of this information should come as a surprise if you used the litigation discovery phase to your advantage
Usually, you must submit a completed Pre-Hearing Statement Order at least seven (7) days before the hearing.
There is a risk that the deputy commissioner will dismiss your claim or exclude some of the evidence if you ignore the Pre-Hearing Statement Order.
Types of Workers Compensation Hearings
There are two types of evidentiary hearings in workers comp claims: on-the-record hearings and trials.
Workers Comp “On-the-Record” Hearing
The first type is an “on-the-record” hearing. Neither party presents live testimony. Instead, the judge decides the case based on written briefs (also called position statements) and documents submitted with the brief.
Generally, cases decided by the on-the-record hearing process reach a final resolution faster than those requiring trials.
The clerk of the commission will refer a claim for benefits or an application for a hearing for an on-the-record decision when it appears there is no material fact in dispute or that live testimony is not required.
You have ten days to object to an on-the-record hearing. Your objection must state why an in-person trial is necessary (or better).
If the parties to the case proceed with an on-the-record hearing, you will have twenty days from the date of notice to submit a written statement (brief) with supporting documents and ten days to submit a reply brief and rebuttal evidence.
A deputy commissioner will review the file, briefs, and evidence, then issue a written decision. If a party disagrees with the decision, it can request a review by the full commission within thirty days from the date the deputy commission entered the judicial opinion.
With an on-the-record hearing, you do not have much time to develop or obtain medical records and other evidence once the commission issues the notice of hearing. This is why you should gather enough evidence to win before filing the claim or request additional time to submit a brief and proof if you are fighting an employer’s application to stop (suspend or terminate) benefits. The commission will grant additional time if you show good cause for needing it.
Workers Comp Bench Trial – What Happens at Trial
The second type of workers compensation hearing is a bench trial. Cases requiring live testimony or dealing with complex (or multiple issues) are referred for trial-type hearings before a workers comp judge.
With this type of legal proceeding, you try your case (present live testimony and other evidence) to a judge, not a jury. Unlike criminal and civil cases, you do not have the right to a jury trial in workers comp.
Workers comp bench trials are formal proceedings open to the public. Therefore, specific rules and procedures apply and, depending on what state has jurisdiction over your workplace injury claim, these procedures may be the same as those used in circuit court.
Do I Have to Attend the Trial?
Yes.
You must attend your workers comp hearing. Otherwise, the employer and its insurer will move the court to dismiss your claim, and the commission may grant this request.
What Should I Do if I Have a Scheduling Conflict and Cannot Attend the Workers Comp Hearing? Requesting a Continuance
You should file a motion for continuance (postponement) if you cannot attend the hearing on the scheduled date.
The commission’s rules state that it will grant a motion to continue only when it appears that material or irreparable harm may result if not given. However, most deputy commissioners are more lenient with these motions and will often grant the first such request.
If you have a scheduling conflict, call the insurance company’s attorney and ask if there is any objection to postponing the hearing. Unless the hearing has been postponed several times before at your request, defense counsel will rarely object.
If defense counsel has no objection, file a motion for continuance with the commission. Your motion should state why you need the hearing rescheduled and that defense counsel does not object. If the commission finds good cause to grant your request, then it will postpone the hearing.
If defense counsel objects to postponing the hearing or fails to answer within 3 days, file a motion for continuance with the commission anyway. The sooner you file a motion, the more likely it is that the deputy commissioner assigned to your case will grant it. Do not wait until the last minute.
How Long Does it Take to Get a Workers Comp Hearing?
The workers comp claims process moves much faster than other areas of litigation.
On average, it takes three to four months from the date you file a claim for benefits to the date of the hearing.
Though this seems (and is) a long time to go without income, this period is much shorter than the typical time to trial in federal and state courts, which can exceed one year.
Is There Any Way to Get a Workers Comp Hearing Sooner? The Expedited Hearing Request
Maybe.
It is possible to get an expedited hearing. But only if you have already proven that you suffered a compensable injury, which means you have received an Award Order awarding lifetime medical benefits, indemnity benefits, or both.
How Long Does a Workers Comp Trial Take?
The commission’s rules state that each party has twenty minutes to present evidence unless a prior arrangement is made for more time.
Despite this rule, the commission often schedules only thirty minutes for a trial.
If you think the hearing will take longer than thirty minutes, then notify the deputy commissioner assigned to your case and ask for more time. Do this as soon as possible to avoid the judge postponing your hearing date.
Generally, I request more time for trial if:
- I plan on calling more than one witness.
- The case involves complicated medical issues such as an occupational disease or an injury aggravating, exacerbating, or accelerating a pre-existing condition such as degenerative disc disease or arthritis.
- An expert witness (orthopedic surgeon, psychiatrist, vocational rehabilitation counselor, accident reconstruction engineer) or private investigator who conducted surveillance will testify.
- The case involves a willful misconduct defense, such as a violation of a safety rule or intoxication.
- A foreign language interpreter is needed – either for my client or for one of the witnesses.
Where Will My Trial Be Held? Workers Comp Hearing Locations
Your hearing must be held in the city or county where the accident happened or in a contiguous (neighboring/bordering) city or county.
However, there are exceptions to this rule.
The commission may choose another location if the parties agree.
For example, if the accident happened away from your home and the employer’s place of business, the parties can agree to the case being heard in a more convenient location.
Similarly, the commission may grant a request for a different location if a video hearing is appropriate and the assigned location does not have the technical capabilities but a different hearing office does.
Depending on these factors, your Virginia workers comp hearing will take place in:
- Berryville (Clarke County General District Court, 104 N. Church St., Berryville, VA 22611). This is the hearing location for work injuries in and around Winchester.
- Big Stone Gap (United States Federal Courthouse, 2nd Floor, 322 East Wood Avenue, Big Stone Gap, VA 24219)
- Bristol (425 State Street, Suite 200, Bristol, VA 24201)
- Charlottesville (Second Floor Council Chamber, 610 East Market Street, Charlottesville, VA 22902)
- Danville (Institute for Advanced Learning and Research, 150 Slayton Ave, Danville, VA 24540)
- Eastville (Northampton County Circuit Court, 5229 The Hornes, Eastville, VA 23347)
- Fairfax (Prosperity Plaza, 3020 Hamaker Court, Suite 100, Fairfax, VA 22031)
- Franklin (Paul D. Camp Community College, Reg. Workforce Dev. Ctr., 100 N College Drive, Franklin, VA 23851)
- Galax (Harold Snead Public Safety Building, 353 N Main St, Suite 205, Galax, VA 24333)
- Grundy (Buchanan County General District Court, 2012 Walnut St, Suite 328, Grundy, VA 24614)
- Hampton (Hampton City Council Chambers, 22 Lincoln St, Hampton, VA 23669). If you are injured at work in Newport News, Yorktown, or Poquoson, your hearing will take place in Hampton.
- Harrisonburg (41 Court Square, Suite B, Harrisonburg, VA 22801). Those of you who are hurt at the Wal-Mart Distribution Center in Mt. Crawford or injured as an associate at the Amazon Fulfillment Center in Clear Brook will likely have a hearing in Harrisonburg.
- Lawrenceville (Brunswick Juvenile and Domestic Relations District Court, 202 North Main St, Lower Level, Lawrenceville, VA 23868)
- Lebanon (Southwest Virginia Technology Development Center, 141 Highland Dr, Lebanon, VA 24266)
- Lexington (Rockbridge County Circuit Court, 20 S. Randolph St, Suite 101, Lexington, VA 24450)
- Madison (War Memorial Building, 2 Main St, Madison, VA 22727).
- Manassas (Sudley Tower, 7900 Sudley Rd, Suite #500, Manassas, VA 20109)
- Martinsville (Henry County Courthouse, 3rd Floor, Courtroom B, 3160 Kings Mountain Rd, Martinsville, VA 24112)
- New River Valley (Montgomery County Circuit Court, Courtroom 4A, 55 E Main St, Christiansburg, VA 24073)
- Richmond (Workers Compensation Commission Headquarters, 333 E. Franklin St, Richmond, VA 23219)
- Roanoke (3800 Electric Rd, Suite 200, Roanoke, VA 24018)
- Rustburg (Campbell County General District Court, 732 Village Highway, Rustburg, VA 24588). Those of you hurt at work in or near Lynchburg will have a hearing here.
- Spotsylvania (Spotsylvania Historic Courthouse, 9101 Courthouse Rd, Spotsylvania, VA 22553). If you suffer a work injury in Fredericksburg your hearing will take place here.
- Staunton (Staunton Circuit Court Building, 2nd Floor, 113 East Beverley St, Staunton, VA 24401). If you suffer a work injury in Waynesboro your hearing will take place here.
- Tappahannock (Town Council Chambers, Tappahannock Municipal Building, 915 Church Lane, Tappahannock, VA 22560). If you suffer a work injury on the Northern Neck, your hearing will take place here.
- Virginia Beach (281 Independence Blvd, Suite 310, Virginia Beach, VA 23462). If you sustain a work injury in Norfolk or Chesapeake your hearing will take place in Virginia Beach.
- Williamsburg (Williamsburg James City County General District Court, 5201 Monticello Ave, Suite 2, Williamsburg, VA 23188)
Who Decides My Industrial Accident Case? Workers Comp Judges (Deputy Commissioners)
The clerk of the court assigns your case to a deputy commissioner in whose territory the accident occurred.
The deputy commissioner has the discretion to conduct the hearing how they see fit. Each judge has their own style and opinions on what type (and number) of witnesses should testify, the length of the hearing, and the importance of specific evidence. This is one reason it makes sense to hire an experienced, local attorney. That attorney can tailor the presentation of your case to meet that judge’s preferences.
Below is a list of the deputy commissioners that hear work injury cases in Virginia. I am familiar with each.
- Deborah W. Blevins
- Frederick M. Bruner
- Christen Burkholder
- P. Jason Cording
- William R. Culbreth
- Susan E. Cummins
- Lynne M. Ferris
- Angela F. Gibbs
- Linda M. Gillen
- Robert M. Himmel
- Brooke Anne C. Hunter
- Terry Jenkins
- William T. Kennard
- Andrea White Lee
- R. Temple Mayo
- W. Geovanni Munoz
- John S. Nevin
- Dana L. Plunkett
- P. Randolph Roach, Jr.
- Jimese P. Sherrill
- Linda Slough
- James J. Szablewicz
- Lee E. Wilder
- D. Edward Wise, Jr.
Who Will Be at My Hearing?
The following people will be at your workers comp trial:
- You
- Your attorney
- The judge assigned to your case
- A court reporter
- The attorney for the insurance company
- An employer’s representative – often an executive with the company or the head of human resources or safety at the business
- Any witnesses subpoenaed to the hearing, such as eyewitnesses or the claim adjuster
Workers comp hearings are open to the public, so you may have some spectators (though it’s rare).
How Should I Dress for a Workers Comp Hearing?
Business or business casual clothing is acceptable.
Avoid wearing jeans, hats, and a lot of jewelry.
You want to dress nicely, but conservatively. Though there is nothing wrong with standing out, some judges may disfavor it. And fair or not, you want to make a good impression with the judge.
What Should I Bring to the Trial?
You must come to the hearing prepared
This means you should bring all the evidence, including records, reports, photographs, and videos, that you want to present at trial – with enough copies for the judge, the witness you will use to lay the foundation for the document, and the defense attorney
I recommend that you organize your exhibits in the order you plan on introducing them into evidence. This way, you will spend less time searching for documents in the middle of the trial.
Who Has the Burden of Proof and Production at a Workers Comp Hearing?
You do – in most cases.
The claimant (injured worker) has the burden of proving each element of their case. This includes presenting evidence about employment status, the accident, the injury, causation, the nature and extent of disability, and marketing (unless disabled from all work). If you fail to present evidence, you may lose your case.
The preponderance of the evidence is the burden of proof in workplace injury claims.
In mathematical terms, the judge will award your claim if they believe there is a 50.1% likelihood that your injury is covered and that you have proven the other aspects of your claim. If it is a tie then you lose.
Your burden of proof is even higher if you have an occupational disease claim, such as a black lung, carpal tunnel syndrome, or Post Traumatic Stress Disorder (PTSD)claim.
With this type of claim, you must show by clear and convincing evidence that you are entitled to the benefits sought. In mathematical terms, the judge must award your claim if they believe there is a 70% to 75% likelihood that your work-related disease claim is covered.
However, there is an exception to this rule that you have the burden of proof.
The employer (or its insurer or third-party administrator) has the burden when filing an application seeking to stop benefits or asserting a willful misconduct/violation of a safety rule defense.
Read my article on how to determine your burden of proof in tort claims for more information on this topic.
What Rules of Evidence Apply to Workers Comp Hearings in Virginia?
In Virginia, workers comp judges and parties (those with a financial interest in the case) are not bound by statutory or common law rules of pleading or evidence nor by technical rules of practice – with one exception.
The parties must follow the commission’s rules.
Under these rules, the judge may allow hearsay evidence.
Do I Have to Take an Oath at Trial?
Yes.
The judge will instruct the bailiff to swear you and all other witnesses in.
“Swearing in” involves raising your right hand and answering yes when asked if you promise to tell the truth, the whole truth, and nothing but the truth.
The judge expects you to answer “yes” because witnesses must give all court testimony under oath.
What Happens at the Start of the Workers Comp Trial?
After the court swears you and the other witnesses in, you will sit at the claimant’s table, which is usually to the right side of the courtroom.
The deputy commissioner will then:
- Review the pending claims and applications to make sure both parties are clear on what issues the court is hearing that day
- If the hearing is on your claim, ask the employer and insurance carrier to state all defenses to your lawsuit
- Ask the parties if there are any issues they can agree on. These agreements are called stipulations. When the parties stipulate to a fact, there is no need to get testimony or present evidence on that issue. Stipulations, therefore, shorten the amount of time needed for trial and allow you to focus on the critical elements of your claim—judges like when the parties can present stipulations.
- Ask the employer to provide a Wage Chart if there is a disagreement over your pre-injury average weekly wage.
- Ask both parties to provide their Medical Records Designation for admission into evidence.
- Ask the parties if there are any motions in limine to exclude evidence or other procedural matters
Who Presents Evidence First?
The party with the burden of proof gets to open and close the case.
Can I Make an Opening Statement or Closing Argument at My Workers Comp Trial?
No – in most cases.
Generally, the deputy commissioners will not allow the parties to make opening statements or closing statements. But if you think it will help your case, ask the judge for a few minutes to state your case before presenting testimony.
How Do I Present Medical Evidence of My Work Injury (Causation and Disability) at Trial?
In most work injury cases, medical providers do not testify at the hearing. Instead, the parties submit a pleading that contains the medical records and reports they rely on to prove their case (or defend against).
I recommend including only medical records and reports supporting your claim, not every medical note related to your work injury.
Such documents may include:
- Office visit notes
- Diagnostic films (x-rays, MRIs, CT scans, etc.)
- Hospital notes
- Narrative statements from your healthcare providers
- Questionnaire responses from your healthcare providers
A shorter medical designation can be more effective than a longer one because the judge is more likely to understand each document’s importance.
I recommend including a brief description of the medical note in the designation’s cover letter. The judge (or their clerk) may skim the designation for the most important documents, and you want those to stand out.
Many deputy commissioners will not consider a medical record when deciding a case unless you include that document in your designation – even if you filed or produced the record before the hearing.
Presenting Your Testimony at the Work Injury Trial
After the deputy commissioner has clarified all issues in dispute and admitted medical designations into evidence, you will take the witness stand.
You are the most important person in your work injury case. If the judge finds you credible, the odds of winning the hearing improve.
Your attorney will ask you questions first. This is called direct examination.
When your attorney finishes direct examination, the insurance company’s attorney may cross-examine you.
The purpose of cross-examination is to attack your credibility and to bring out facts that hurt your case.
Cross-examination is often a stressful experience. But you can reduce the opposing party’s effectiveness with adequate preparation and by answering questions during direct examination that take the sting out of the weaknesses in your case.
When the insurance company’s attorney finishes, your attorney may try to rehabilitate your testimony by conducting a re-direct examination.
The deputy commissioner has the right to ask questions of you and any other witness, which often happens. The deputy commissioner’s questions give the parties a good idea of what issues the judge finds essential. Your attorney can use this information to develop the testimony further.
You can read my article on what questions the attorneys will ask at your workers compensation hearing for more information on this topic.
Presenting Testimony from Other Witnesses at the Workers Comp Hearing
When you finish testifying, both your attorney and the insurer’s attorney may call additional witnesses to testify.
Usually, I will call to testify family members who have seen how your abilities have changed since the work accident and accident reconstruction engineers and accident witnesses if the employer disputes that the accident happened.
I may also call employees from your company’s safety or human resources departments if the employer disputes timely notice or alleges a termination for cause or willful misconduct defense.
These witnesses testify in a similar format – direct examination by the party that called them to testify, followed by cross-examination by the opposing counsel, and re-direct.
What Documents Should I Enter into Evidence at the Trial?
During your workers compensation hearing, you may want to introduce various documents into evidence that are unrelated to your medical condition.
For example, you may want to admit into evidence:
- Evidence of wage loss (pay stubs and tax information from before and after the injury).
- Employment records to show that the employer disciplined or terminated you.
- Personnel records if the employer alleges it terminated you for cause
- Documents showing your job search (marketing evidence)
- Pictures of the accident scene
- Pictures of your injuries
- Text messages demonstrating that you gave proper notice of the injury.
Virginia has specific rules of evidence explaining what documents and testimony are admissible at trial. So do other states.
You must offer each exhibit into evidence separately.
Be sure to use your testimony, or witness testimony, to lay the proper foundation for the exhibit. Or else the judge may exclude the document. A banned record cannot help you prove your claim.
I recommend having at least two sources for each fact you intend to prove, in case the judge excludes one of your sources.
If you are concerned about the admissibility of a document, ask the opposing party to stipulate to its use, or file a motion in limine.
If the deputy commissioner excludes your exhibit, make sure you proffer it to preserve the issue for appeal.
How Do I Object to the Employer and Insurer’s Evidence at Trial?
You have the right to make objections during witness testimony – both to the question, the testimony, and any document introduced into evidence.
You must object quickly (as soon as the attorney asks the question) to preserve the record for appeal.
Virginia and many other states follow the contemporaneous objection rule – you cannot object at the end of the hearing if the attorney asked the question earlier.
What Happens at the End of the Hearing?
The judge will announce that the parties have submitted the case after all the witnesses have testified.
This means the evidentiary record is closed.
You will not find out if you won or lost at the hearing itself.
Instead, the deputy commissioner will issue a written opinion after the evidentiary record has been closed.
You will then go home and wait to receive a decision in the mail.
Will I Receive a Lump Sum Verdict at (or after) My Workers Compensation Hearing?
No – and this is a significant difference between workers comp claims and civil actions seeking damages for personal injuries.
The workers comp judge does not have the power to determine your case’s total value or order the employer and insurer to pay that amount. There is no verdict like those entered in civil claims.
Instead, the judge is limited to determining if you are entitled to the specific benefits sought.
Can I Submit Post-Hearing Evidence?
The commission does not allow the parties to develop evidence after trial to refute the other party’s evidence or cure deficiencies realized at the hearing.
However, there are three exceptions.
First, you can submit post-hearing evidence if you moved the court to leave the record open and the deputy commissioner granted the motion.
You must make this motion before or at the hearing, and the evidence you submit post-hearing is limited to what the deputy commissioner said they would allow. In other words, you cannot develop or submit evidence unrelated to why the judge kept the record open.
Second, the court may admit new evidence that existed at the time of trial but that you could not have discovered with due diligence before the hearing. This is known as the after-discovered evidence rule.
Third, you can submit case citations to show the judicial precedent you rely on.
Judicial precedent is a rule established in past workers comp cases that is binding on (or help persuades) the judge hearing your case.
How Long Does it Take to Get a Decision from the Workers Comp Judge?
Every judge is different when it comes to the speed of making decisions. Some judges consistently issue opinions within a few weeks of the hearing date, while others take several months.
The complexity of the case, the number of medical records and exhibits, and the number of witnesses that testified affect how long you will have to wait to receive the judge’s decision.
The decision is also called the “award order,” even if the judge denies benefits.
What Can I Do if I Disagree with the Judge’s Decision in My Workers Comp Case? Understand Your Post-Hearing Options
You have three options if you disagree with the deputy commissioner’s decision after trial:
- Do nothing and accept the decision, even if it closes your workers comp claim.
- File a request for reconsideration, asking the judge to reconsider the unfavorable opinion and issue a new one.
- File a request for review with the Full Commission.
Please read my article on workers compensation appeals for more information.
My Hearing is Scheduled, and I Now Realize I Need a Lawyer and Additional Evidence. Is it too late?
Maybe not.
Your first step is to file a motion to continue the hearing, explaining that you would like to hire an attorney or conduct more discovery.
If this fails, you can file a motion for nonsuit. This legal procedure has been called a “powerful tool” for plaintiffs.
The nonsuit allows you to dismiss your claim without prejudice to refiling. Put another way – you get a “do over.”
Check the statute of limitations for your work injury claim before taking a nonsuit. The court’s order granting this motion might not extend the time you have to file.
Work With a Workplace Injury Attorney to Prepare Your Case for Trial
My firm has helped thousands of injured workers and accident victims get every penny and medical treatment owed under the Workers Compensation Act.
If you have been hurt in a work-related accident or car crash and would like to file a claim for workers comp benefits, call my injury law firm today: (804) 251-1620 or (757) 810-5614.
Your consultation is free, and we are ready to help you and your family.
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