How Do Workers Comp Appeals Work: What to Do if a Judge Denies Your Case

 

You Have the Right to File an Appeal of a Denied Workers Comp Claim

 

You filed a claim for workers compensation benefits, presented your case at a trial before a judge, and received a judicial opinion. But unfortunately, the judge denied your claim. Now what? 

 

Losing your claim at a workers comp hearing can be devastating. But you have options to continue your case.

 

This article’s purpose is to explain how to appeal a denied workers comp claim, how long the review and appeals process takes, and what steps you can take to preserve your legal rights.

 

Legal research and effective appellate briefing can help you reverse the denied claim and get the lifetime medical coverage, wage loss payments, and workers comp settlement you deserve.

 

Keep reading to learn more about workers compensation appeals.

 

If you have questions about workers comp law or would like a free consultation with one of the best work injury lawyers in Virginia, call (804) 251-1620 or (757) 810-5614. My firm has helped hundreds of injured employees and accident victims win their claims after receiving a denial from the insurance company or Workers Compensation Commission. And we are ready to help you and your family.

 

Contents hide
1 How Do Workers Comp Appeals Work: What to Do if a Judge Denies Your Case
1.1 You Have the Right to File an Appeal of a Denied Workers Comp Claim
2 What is an Appeal?
3 Step One in the Workers Comp Appeals Process: File a Motion for Reconsideration Asking the Deputy Commissioner to Change His or Her Mind
3.1 Step Two in the Workers Comp Appeals Process: Request Review by the Full Workers Compensation Commission
3.2 Step Three in the Workers Comp Appeal Process: Filing an Appeal with the Court of Appeals of Virginia
3.3 Step Four in the Workers Comp Appeals Process: Asking the Supreme Court of Virginia to Hear Your Case
3.4 Do the Employer and Insurance Carrier Have to Pay Interest on a Workers Compensation Award if They File an Appeal and Loses?
3.5 Top-Rated Attorney for Workers Compensation Appeals in Virginia

 

What is an Appeal?

 

An appeal is a request to a higher court of law to reverse a lower court’s decision.

 

The state judiciary is a hierarchical system of administrative agencies and trial and appellate courts.

 

For example, in Virginia the court levels include:

 

  • The Supreme Court of Virginia (the highest court).

 

 

  • The Circuit Courts (major trial courts).

 

  • The Workers Compensation Commission (trials arising from work-related injuries and occupational diseases).

 

  • The District Courts (small claims courts).

 

Other states have similar structures.

 

Each court has specific powers, with the higher courts having oversight over the lower courts.

 

When you file an appeal, you are asking the next-highest court to overrule the lower court’s opinion.

 

Step One in the Workers Comp Appeals Process: File a Motion for Reconsideration Asking the Deputy Commissioner to Change His or Her Mind

 

The deputy commissioner who presided at the hearing has jurisdiction over your workers comp case for thirty (30) days after the date of the written decision.

 

If you disagree with the deputy commissioner’s decision you have the right to file a Motion for Reconsideration. This motion asks the deputy commissioner to change his or her mind and issue an amended decision that favors you.

 

A motion for reconsideration is not always appropriate. But there are some circumstances where it should be used.

 

First, if you believe the deputy commissioner did not see or review specific documentary evidence when making a decision and that evidence would change the outcome, file a motion for reconsideration.

 

This happened in one of my cases recently. The deputy commissioner awarded my client’s claim for authorization and payment of lumbar fusion surgery, but denied the claim for temporary partial disability benefits. The denial was based on the deputy commissioner’s finding that my client, who was working light duty 40 hours per week, should have conducted a job search to find additional hours of light duty each week because his pre-injury average weekly wage was based on working significant overtime, up to 60 hours per week.

 

The deputy commissioner had not reviewed the treating physician’s statement limiting my client to working only 40 hour per week, which meant my client had not duty to look for additional light duty work. I filed a motion for reconsideration after receiving the written decision and attached a copy of the medical report on which we were relying. After receiving the motion the deputy commissioner amended his decision and found that my client was entitled to TPD benefits and had no obligation to market his residual work capacity for any overtime he may have missed.

 

Second, a motion for reconsideration of the deputy commissioner’s written decision makes sense if the deputy commissioner made a factual error. For example, if the deputy commissioner miscalculated the amount of benefits owed and made a mathematical error, you should file a motion for reconsideration.

 

A major benefit of filing a motion for reconsideration is that it usually takes the deputy commissioner less time to render a decision on the motion than it does to go through the appeals process with the full Workers Compensation Commission. This is because the deputy commissioner loses jurisdiction over your case thirty (30) days after the date of the decision. If you file your motion thirty-one days after the date of the decision, or if the deputy commissioner waits too long to rule on the motion, it is too late – even if the deputy commissioner agrees with your motion. You will have to file an appeal with the Workers Compensation Commission.

 

Step Two in the Workers Comp Appeals Process: Request Review by the Full Workers Compensation Commission

 

After a deputy commissioner renders an opinion, either party may request a review by the Workers Compensation Commission. Filing a request for review is the same thing as filing a workers compensation appeal.

 

Do You Need Permission to File an Appeal with the Workers Compensation Commission?

 

No. You do not need permission to file an appeal with the Commission.

 

Either party may request a review of the deputy commissioner’s hearing decision so long as the appeal is filed within thirty days of the date the deputy commissioner issued the decision.

 

Can Both Parties Appeal the Deputy Commissioner’s Decision? 

 

Yes. It’s possible for both parties to want to appeal the deputy commissioner’s hearing decision.

 

For example, if the deputy commissioner renders an opinion finding that you suffered a work-related shoulder injury, but that you are not entitled to temporary total disability (TTD) benefits because you failed to market your residual work capacity, you may appeal the denial of TTD benefits while the insurance carriers appeals the award of lifetime medical benefits for your shoulder injury.

 

If one party files an appeal with the Commission, then the opposing party has fourteen days to file its own request for review.

 

Who Reviews the Deputy Commissioner’s Decision?

 

Three commissioners conduct the review and decide the appeal. This group of three commissioners is called the “full Commission.” And it consists of one employer’s representative (a former insurance defense attorney), one claimant’s representative ( a former lawyer who represented injured workers), and one neutral person (someone who represented both insurance companies and employees).

 

The deputy commissioner who heard your case at trial and issued a decision is not allowed to participate in the review.

 

How Do You File a Request for Review with the Workers Compensation Commission?

 

Your request for review must be in writing. And it should state the specific findings of fact and conclusions of law that you believe the deputy commissioner erred in making.

 

A simple, “I disagree with the deputy commissioner’s decision,” is insufficient. The Commission may consider a party’s failure to assign any specific error in its appeal as a waiver of the party’s right to review of that error. But the Commission does have the power to address any error and correct any decision on review whether a party raised it or not.

 

A party requesting review of a deputy commissioner’s decision must send a copy of the written request for review to the opposing party.

 

How Do You Get Oral Argument Before the Workers Compensation Commission? 

 

Usually the full Commission does not hear oral argument when deciding appeals and will make its decision using the evidentiary record and written statements. But Rule 3.4 of the Rules of the Workers Compensation Commission permits oral argument on appeal. It states:

 

A party may request oral argument at the time of application for review. Otherwise, the review shall proceed on the record.

 

If oral argument is requested and the Commission considers it necessary or of probable benefits to the parties or to the Commission in adjudicating the issues, the parties will be scheduled to present oral argument.

 

Any party may request the Commission to schedule argument by telephone conference by giving notice to the Clerk of the Commission and to opposing counsel at least five days before the scheduled date for argument.

 

Each side will be limited to no more than 15 minutes for presentation of oral argument.

 

This means you must request oral argument in your workers comp appeal at the time you file a request for review. Otherwise you will not get it.

 

And even if you do request oral argument at the time you file your appeal, you probably won’t get it. In my experience the full Commission will grant a request for oral argument only if the appeal contains a novel issue. Most reviews are conducted on the record without oral argument or live testimony.

 

What Happens After You File an Appeal with the Workers Compensation Commission?

 

After the Commission receives a request for review from either party it will prepare a transcript of the hearing testimony. The full Commission will review the hearing transcript and the testimony of all witnesses when making a decision. This is why it’s so important to present your strongest evidence and testimony at hearing.

 

Next the Commission will issue a schedule for submission of written statements from the parties. The full Commission decides appeals using not only the hearing transcript and evidence admitted at hearing, but also by reviewing the parties’ position statements. Rule 3.2 of the Rules of the Commission states that each party’s written statement should support their respective issues and “address all errors assigned, with a particular reference to those portions of the record which support a party’s position.”

 

Tips for Submitting a Written Statement to the Full Workers Compensation Commission

 

At a minimum the written statement you file in support of your workers comp appeal should include the following sections:

 

  • Introduction. This is a one to three paragraph statement that provides the theory of your case.

 

 

  • Procedural Summary. You should include a separate section in your written statement that addresses when your claims were filed, what workers comp benefits you are seeking, and the conclusions found in the deputy commissioner’s opinion.

 

  • Applicable Standard of Review. The full Commission reviews the case de novo, which means “starting from the beginning.” It is not bound by the deputy commissioner’s factual and legal findings. But usually the Commission will defer to a deputy commissioner’s credibility finding based on observations of the witness at hearing. This is why credibility is so important. If the deputy commissioner finds you honest and sincere and awards the case based on this finding, the employer and its insurance carrier will have difficulty overturning the decision on appeal.

 

  • Argument and Authorities. In this section you cite case law, portions of the hearing transcript, and documentary evidence, including medical records and reports, that support your position.

 

Do not attack the other side personally. Simply provide case law and facts that support your position.

 

I recommend hiring an experienced attorney to help you file a written statement on appeal. You have a lot on the line financially and health-wise. And you should do everything you can to protect your legal rights.

 

Can You Introduce New Evidence on Appeal?

 

Usually you cannot introduce new evidence when you file your workers compensation appeal or written statement.

 

There are two exceptions to this rule.

 

First, new evidence may be introduced on appeal if the parties agree. This is rare. There is no reason for the party that won at hearing to agree to let the party that lost introduce new evidence.

 

Second, new evidence may be introduced on appeal by permission of the Commission. This requires the filing of a petition to reopen the record or a request that the Commission receive after discovered evidence.

 

The Commission will grant a petition to reopen hearing or receive after discovered evidence only when it appears necessary and the party filing the request is able to establish the following:

 

  • That it obtained the evidence after the hearing.

 

  • That it exercised reasonable diligence but was still unable to obtain the evidence before the hearing.

 

  • That the evidence is material and should produce a different result before the Commission.

 

For example, if you are asked about prior medical treatment in discovery but fail to disclose such treatment, the Commission may grant a request to reopen the hearing.

 

Because the rules on presenting additional testimony are so strict, it’s important that you conduct discovery and build your case before the hearing.

 

How Long Does it Take to Receive a Decision from the Full Commission?

 

There is no set time limit for the full Commission to render a decision on appeal. But usually it issues a decision within six weeks of receiving written statements from both parties.

 

Can You Settle Your Case While the Claim is Pending on Appeal?

 

Yes. You can negotiate a workers compensation settlement in Virginia while an appeal is pending.

 

I’ve helped many clients obtain lump sum settlements after the employer has appealed the deputy commissioner decision’s opinion. Usually this is a good time to resolve the case because the employer and its insurance carrier realize you have a strong case.

 

Step Three in the Workers Comp Appeal Process: Filing an Appeal with the Court of Appeals of Virginia

 

Either party may appeal the full Commission’s decision to the Court of Appeals of Virginia. No special permission is needed. The appeal is a matter of right.

 

Do You Have to File an Appeal with the Full Workers Compensation Commission Before Requesting a Review by the Court of Appeals?

 

Yes.

 

The Court of Appeals of Virginia may not review a deputy commissioner’s decision. It can only review a decision from the full Commission.

 

You cannot skip a step in the workmans comp appeals process.

 

What Are the Procedural Requirements for Appealing a Case to the Court of Appeals from the Virginia Workers Compensation Commission?

 

Under Virginia Code Section 65.2-706 a party must file a written notice of appeal with both the Clerk of the Workers Compensation Commission and the office of the Court of Appeals within 30 days from the date of the full Commission’s decision.

 

The time period for filing an appeal is jurisdictional. This means that a party forfeits its rights if it files a workers comp appeal late.

 

There are costs associated with this appeal. They include:

 

  • $35.00 payable to the Commission for certifying the evidentiary record.

 

  • $50.00 filing fee payable to the Court of Appeals.

 

  • $500.00 appeal bond payable to the Court of Appeals.

 

If, however, you have not returned to work or are unemployed because of disability and you file an affidavit stating the same, you may get these costs waived.

 

What Do You Include in the Notice of Appeal Filed with the Court of Appeals?

 

Your notice of appeal must include the following:

 

  • Your name and address.

 

  • The names and addresses of all appellants and appellees. If you are filing the appeal then the appellees are the employer and its insurance carrier.

 

  • The name, Virginia State Bar number, mailing address, telephone number, and email address of counsel for each party.

 

  • The name, mailing address, telephone number, and email address of any party not represented by counsel.

 

  • Whether you challenge the sufficiency of the evidence.

 

What Happens After You File a Notice of Appeal?

 

When a party files a notice of appeal with the Commission the Commission prepares a copy of the record and sends it to the Court of Appeals. The record includes all the documents filed in your case, including the hearing transcript.

 

The Commission must send a copy of the evidentiary record to the Court of Appeals within thirty days of receiving the notice of appeal.

 

The Clerk of the Court of Appeals will add documents to the record, which is also called the appeals appendix.

 

The Court of Appeals will then issue a briefing schedule.

 

Argument Before the Court of Appeals of Virginia in Workers Compensation Cases

 

The appellant, also known as the party who filed the appeal, must file an opening brief with the Court of Appeals within 40 days after the record is filed. The appellee, which is the party who won at the full Commission level, must file a response brief within 25 days after the opening brief is filed. The appellant is then allowed to file a reply brief.

 

Having an attorney represent you in your workers comp appeal is important for several reasons. Specifically you will need an attorney who is familiar with the Rules of the Supreme Court of Virginia regarding timelines, preparing the appendix and evidentiary record, and the length and page limits of opening briefs.

 

After written briefs are filed, the Court of Appeals may decide that oral argument is necessary. The court will schedule oral argument with the parties’ attorneys.

 

It’s important that you file a written brief and attend the oral argument, if one is scheduled. This is your opportunity to tell your story and to explain to the Court of Appeals why you’re owed workers comp benefits in Virginia.

 

What is the Standard of Review on Appeal Before the Court of Appeals?

 

Often it does not make sense for the losing party before the full Commission to file an appeal with the Court of Appeals because of the applicable standard of review. Though that doesn’t always stop insurance companies looking to delay the payment of benefits.

 

The Court of Appeals views the evidence in the light most favorable to the party that won before the full Commission. Findings of fact, if supported by credible evidence, are binding at this level. The Court of Appeals will not retry the facts or reweigh the evidence.

 

In other words, the Court of Appeals will uphold the full Commission’s decision if it is supported by credible evidence, even if the judges hearing your case on appeal may have decided it differently from the full Commission.

 

Step Four in the Workers Comp Appeals Process: Asking the Supreme Court of Virginia to Hear Your Case

 

If a party doesn’t agree with the decision rendered by the Court of Appeals of Virginia, it may file a petition for appeal with the Supreme Court of Virginia. This is not an appeal of right. You must get permission from the Virginia Supreme Court.

 

The Supreme Court of Virginia rarely grants review of workers compensation cases. At most it agrees to hear one to two workers comp cases per year, if that.

 

Usually it will not review a workers comp cases unless it:

 

  • Involves matters of significant precedential value. For example the case must affect many other workers comp claims that are either pending or that may arise in the future.

 

  • Involves substantial constitutional questions.

 

If the Supreme Court of Virginia agrees to hear your case then additional briefing and oral argument are required.

 

Do the Employer and Insurance Carrier Have to Pay Interest on a Workers Compensation Award if They File an Appeal and Loses?

 

When an employer files an appeal any award entered by the Commission is suspended.

 

Here is an example.

 

If you go to hearing and the deputy commissioner awards TTD benefits, the employer does not have to pay these benefits while the case is pending on appeal. Often employers will file an appeal with the full Commission to put financial pressure on the injured worker and force a settlement.

 

If an award is affirmed on appeal the employer must pay interest on the benefits owed. The applicable interest rate is six percent.

 

Top-Rated Attorney for Workers Compensation Appeals in Virginia

 

If you need help with the workers comp appeals process, call me for a free consultation: 804-251-1620 or 757-810-5614.

 

From Virginia Beach to Newport News to Fairfax to Fredericksburg to Norfolk to Roanoke to Richmond, I represent injured employees across the state in workers comp claims involving all types of injuries, including back injuries, herniated discs, knee injuries, traumatic brain injury, concussions, and spinal cord injuries. And I can help you.

 

Corey Pollard
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