Virginia Workers Compensation Discovery Rules
Under Virginia workers compensation the injured employee has the burden of proving that he or she is entitled to workers compensation benefits like temporary total disability payments, lifetime medical treatment, and permanent partial disability payments. This means you cannot sit back and hope that your industrial accident claim is approved. To get what you deserve you must investigate and build your workers compensation case by developing all available evidence.
The workers compensation discovery process is the most effective way to get approved for benefits or to negotiate a top-dollar workers comp settlement in Virginia. This article addresses the various tools available to injured workers and employers after you file a workers compensation claim.
If you’re looking for help with your case or have a question about the process for receiving benefits after a work injury or diagnosis of an occupational disease, you should contact Virginia workers compensation attorney Corey Pollard today for a free consultation.
What is the Purpose of Discovery in Workers Compensation Cases?
The rules of pre-trial discovery in Virginia workers compensation claims are set out in Sections 65.2-201 and 65.2-703 of the Virginia Code and Commission Rule 1.8. Discovery applies to parties or witnesses living within our outside Virginia.
Discovery serves several purposes in workers compensation claims:
- To prepare the parties for trial
- To help the parties better understand the other party’s evidence and positions
- To encourage the parties to communicate and resolve issues that are not disputed
- To encourage a lump sum settlement of the workers compensation case
Discovery prevents a “trial by ambush” by either party.
Discovery Devices Available in Virginia Workers Compensation
Rule 1.8 of the Rules of the Virginia Workers’ Compensation Commission allows the parties to engage in discovery.
Discovery is the compulsory disclosure of relevant documents and information in a legal action. The scope of discovery extends to matters which are relevant to issues pending before the Commission and which are not privileged. The material sought does not have to be admissible at trial. As long as it is reasonably calculated to lead to the discovery of admissible evidence the Commission will allow it.
There are various discovery tools that your lawyer may use to build your workers compensation case or to limit the employer and insurer’s ability to mount a strong defense. These tools include
An interrogatory is a written question served by one party’s attorney on another party. The party receiving the interrogatory must answer under oath within 21 days of receipt of the interrogatory.
After you file a workers compensation claim or the employer files an application for hearing to suspend benefits, your attorney will send interrogatories to the defendants. This right is found in the Commission’s Rules and under Section 65.2-703(A) of the Virginia Code.
Under the Commission’s Rules each party may serve no more than 15 interrogatories on the other party. If you want to serve more you must ask the Commission for permission and explain why it is necessary.
You do not have to file answers to interrogatories with the Commission unless they are the subject of a motion to compel. In my experience most judges want to avoid discovery disputes and do not want to read discovery answers before trial.
For more information on the type of information you can get through these interrogatories, read our article providing Sample Interrogatories in Workers Compensation in Virginia. You can also check out our article on Answering Interrogatories in Workers Compensation Claims for advice.
Request for Production of Documents and Wage Information
In Virginia a party may discover documents and tangible things related to their claim. This means you can obtain documents, photographs, and any other recorded or copied item that the other party possess related to your employment, accident, medical treatment, and workers’ compensation claim.
Usually your attorney will send requests for production of documents and things to the defendants at the same time he or she sends interrogatories.
The employer must file a wage chart with the Commission that shows all wages earned by the claimant during the 52-week period leading up to the work accident.
If you worked at more than one job at the time you were injured and are attempting to combine wages from similar employment to increase your average weekly wage, you are responsible for producing wage records from the other job(s).
Here is an example of Claimant’s Request for Production of Documents and Things to Employer and Insurer for use in your workers comp claim.
A subpoena is a writ issued by the Commission to compel testimony by a witness or the production of evidence. Failure to comply with a subpoena will lead to a penalty or sanctions.
A party requesting a subpoena for witness or subpoena duces tecum (production of information) must prepare the subpoena and submit it to the Commission. The Commission will certify the subpoena and insert a return date so long as a check or money order for the service fee, payable to the appropriate sheriff’s office, accompanies the request. The Commission will forward the subpoena and service fee to the designated sheriff’s office.
Depending on the wording of the subpoena, the requested documents will be sent to either the requesting party or to the Commission.
There are time limits for filing requests for subpoenas with the Commission. A request for subpoena for a witness must be filed at least 10 days prior to the scheduled hearing. A request for subpoena duces tecum must be filed at least 15 days prior to the hearing and should describe with particularity the documents requested.
Your attorney will use subpoenas to get information from your medical providers and previous employers.
You can also read our article, How Can I Request a Subpoena in My Workers Comp Case, for step by step guidance on the process.
Va. Code Section 65.2-703(A) allows any party to a workers’ compensation case to cause the depositions of witnesses residing within or without Virginia. The Commission’s Rules provide more information, and state that after a claim for benefits or employer’s application for hearing has been filed, any party may depose any person, including a party.
A deposition is simply the taking of out-of-court oral testimony of a witness. Depositions are often reduced to writing and are later used in court to impeach the witness’s credibility. Deposition by written questions is rare in Virginia workers compensation cases.
A party may compel a witness’s attendance at deposition through a subpoena. There is no need to obtain the Commission’s permission to depose a party or physician. If, however, a party wants to depose another person, it should seek the Commission’s permission.
Deposition transcripts must be filed with the Commission. Upon filing, the deposition will be made a part of the evidentiary record.
Read our article on depositions in Virginia workers comp to find out what to expect and how to prepare.
We’ve used the transcript from the deposition of a doctor to win many cases.
Requests for Admission
Though used rarely in workers comp claims, Requests for Admission are a powerful tool. A Request for Admission is a suggested answer to an interrogatory that was not asked. You are asking the other party to confirm certain facts so that you can eliminate potential disputes at trial and any problems proving specific items.
A party may serve upon any other party a written request for the admission of the truth of any material issue.
The Commission does not limit the number of requests for admission that may be served. Each request must be numbered and set forth separately.
Any admission under this rule may be used as evidence in the specific proceeding for which the request was made. An admission in one claim does not serve as an admission in another claim.
A party is required to respond to a request for admission within 30 days. If he or she doesn’t, then the Commission may find that the statement is deemed admitted. This can damage your case tremendously.
How Do I Limit Discovery in Workers Compensation?
If either the injured worker or the employer believes that discovery requests from the other side are excessive, the party may file a motion with the Commission asking that discovery be limited.
The Commission has the authority to limit the frequency or extent of discovery if it is unreasonably cumulative, duplicative, or expense. In making a decision on whether to limit discovery, the Commission will consider the nature and importance of the contested issues, the parties’ resources, and whether there is a more convenient or economical way to obtain the requested information.
If good cause is shown, the Commission will enter a protective order to limit discovery. A protective order is entered to protect a party, a witness, or some other person or entity from embarrassment, oppression, or undue burden or expense.
Do I Have to Change My Answers to Discovery if Something Changes?
Responding to a discovery request is not good enough if information is acquired later that materially affects the initial response. Failing to supplement discovery when it is appropriate to do so may lead to the exclusion of that evidence at trial.
Though the employer has the right to offer you a panel of physicians, you may choose to have a medical examination with a doctor of your choice. The only catch is that you will have to pay for it. An experienced attorney can provide you with options for claimant-friendly physicians who will help your case.
The employer may force you to undergo one examination per medical specialty. This is paid for by the employer. Check out our article Independent Medical Examinations in Workers Comp for more information.
Finally, either party may ask the Commission to have the injured worker undergo an examination with a disinterested doctor. These requests however are granted rarely.
A Workers Compensation Attorney to Guide You through Discovery and Maximize the Value of Your Case
Not taking discovery in your Virginia workers’ compensation case seriously is a big mistake. If you use the discovery tools and methods available to you, you are more likely to uncover the information and evidence needed to prove your case.
Failing to respond to discovery issued by the employer and insurer can be a costly mistake. In Lanning v. Va. DOT, Record Nos. 1795-02-1, 1812-02-1 (Va. Ct. of App. Feb. 19, 2003), the Virginia Court of Appeals held that the Virginia Workers’ Compensation Commission can choose to exclude evidence when a party fails to disclose that evidence in its discovery responses. Depending on the importance of that evidence, you could cost yourself wage loss benefits, medical care, and a lump sum settlement by not answering discovery fully. An experienced workers’ comp attorney can help you avoid such mistakes.
Corey Pollard is one of the top workers’ compensation attorneys in Richmond, Virginia. We focus on helping injured workers and disabled adults in Richmond, Newport News, and across Virginia. Call Corey today at 804-251-1620 or fill out our online contact form for a free, confidential case evaluation.