As the injured employee, you have one goal at a workers comp hearing: to persuade the judge to award the benefits you seek
Indeed, no matter what contested issue the hearing will address – an initial claim for benefits, a change in condition application seeking compensation for the permanent loss of use of the injured body part, a request for authorization of prescribed medical treatment, or the employer’s attempt to stop compensation – you win at a workers comp hearing if you present evidence that allows you to receive or keep benefits.
This article tells you what to expect at your workers comp hearing and offers tips to help you win at trial. These workers comp hearing tips come from years of representing injured employees before deputy commissioners with the Workers Compensation Commission and judges on the Court of Appeals – and winning – as well as years defending employers, insurers, and claim administrators at these judicial proceedings.
Read on to learn more.
Winning a workers comp hearing could be worth tens of thousands of dollars immediately and more over time, depending on the judge’s decision and how your medical recovery and vocational rehabilitation progresses.
In addition, a win at trial can help you negotiate a top-dollar workers comp settlement.
If you have questions about Virginia workers comp, complete this online form, call 804-251-1620 or 757-810-5614, or read these FAQs. See why others regularly vote my firm as one of the best for claimants in workers compensation cases.
A workers compensation hearing is a judicial proceeding in which the parties testify under oath, present tangible evidence, call witnesses to prove facts or offer opinions, and cross-examine their opponent’s evidence when they fail to reach an agreement on a claim for benefits or an application to stop benefits.
The judge uses this evidence to decide the contested issues in a written judicial opinion.
Workers comp hearings are public proceedings that the Commission records.
If either party appeals the judge’s decision, the Commission creates a transcript of the hearing using the recording.
In your case, an administrative law judge called a deputy commissioner will conduct the workers comp hearing. Deputy commissioners are neutral – they cannot develop or present evidence or help you prepare your case for trial.
These workers compensation judges administer oaths, rule on motions, decide evidentiary objections, take and listen to live testimony, examine the evidence, issue findings of fact, and answer questions of law. In addition, the deputy commissioner, like the judge in a civil trial, may limit the method and length of direct and cross-examination and the number of witnesses each party may call to testify.
After taking evidence, the workers compensation judge assigned to your case enters a written decision awarding or denying the benefits sought based on stated findings of fact and rulings of law.
Although some states (like Maryland) have jury trials for workers compensation cases at the appellate level, Virginia does not.
In most states, including Virginia, there is no difference between a workers compensation hearing and a trial.
The two terms are interchangeable, with the term evidentiary hearing referring to a workers comp trial.
Usually, the parties to a workers comp hearing are you (as the injured employee or as a deceased employee’s dependent), the employer (or statutory employer in some construction cases), the employer’s insurance carrier, and the claim administrator.
Your employer is a party because it must pay any award of benefits. However, the insurer usually makes all the decisions about your claim if the employer has workers compensation insurance with no self-insured retention.
In addition, a court reporter will be present at the hearing to ensure the recording equipment works so the judge can review testimony after trial and the appeals court can review the record if needed.
Further, subpoenaed witnesses must attend the hearing. However, either party may move to sequester a witness, so they must sit outside while other witnesses testify.
Finally, members of the general public may attend a hearing and watch.
Compared to the monetary damages you can request at a personal injury trial, your options at a workers compensation hearing are limited.
You cannot receive an award for damages at a workers comp hearing.
Instead, you can only seek specific benefits under the Workers Compensation Act. The judge cannot award a lump sum.
If you win at the hearing, the judge’s decision will include a section detailing the benefits awarded. This award is similar to a judgment or verdict in a civil court.
In Virginia, statutory or common law rules of evidence or technical rules of practice do not bind the Workers Compensation Commission.
However, generally, the Commission follows the Rules of Evidence when deciding the admissibility of testimony or documentary evidence – with one exception. Workers compensation courts are more lenient with hearsay evidence, often allowing it.
Check your state’s regulations and rules when deciding what evidence you can admit at trial.
Usually, the injured employee has the burden of proof at trial.
If you are the person seeking the payment of benefits, you must prove your case by a preponderance of the evidence in most situations. However, if you seek benefits for an occupational disease, you may have a higher burden of proof – clear and convincing evidence.
On the other hand, if the employer seeks to stop the payment of benefits, it has the burden of proof at trial.
Some hearings last fifteen to twenty minutes, while other workers compensation trials take several hours or days to complete.
In Virginia, deputy commissioners often schedule thirty minutes to one hour for trial.
However, in my experience, many workers compensation hearings last two to three hours.
Here is a general summary of the conduct of a workers compensation trial.
After the judge calls the case, the parties and their attorneys appear before the deputy commissioner and the bailiff, who also serves as the court reporter/monitor of the recording equipment.
Next, the judge summarizes the dispute based on the parties’ pre-hearing statement order responses. The judge will ask the parties to confirm the accident date, the claims and applications on the docket, the exact benefits or action sought, and defenses to the claims and applications.
In addition, the judge will ask the parties to state any stipulations (agreed-upon facts made part of the record) and submit their medical records designation; medical providers generally do not testify live at workers comp hearings in Virginia. The court will mark these designations as trial exhibits.
Now is also the time to move to exclude any witnesses from the courtroom. If the employer brought multiple witnesses, I recommend moving to exclude them so that they cannot observe others’ testimony and shape their testimony accordingly.
The judge will allow the parties to offer proof if there are no other issues.
After completing these preliminary matters, you will present evidence for your case in chief. Usually, this evidence will include your testimony and the testimony of witnesses you brought to prove your claim. The judge will swear in all witnesses before taking testimony.
Your opponent may cross-examine you and any witnesses that testified on your behalf. The judge may also question witnesses to clarify specific points.
After cross-examination, you may ask the witness questions as part of the redirect exam.
Once you present your case, the employer/insurer may present evidence and witnesses. Then, you can cross-examine these witnesses.
After the employer finishes presenting its evidence, you may present rebuttal evidence.
Unless the judge rules otherwise, the evidentiary record closes when the hearing ends.
The judge will not say who won or lost at the workers comp hearing.
Instead, the parties will go home and wait for a written decision.
In most cases, the court will publish the opinion within 30 days. However, you may have to wait longer depending on the amount of hearing testimony the judge must review and other matters pending on their docket.
Here are some tips to consider when preparing for a workers comp hearing.
Actions you take before the hearing often determine whether you win your workers comp trial.
Code Section 65.2-702(B) directs the Commission to notify the parties of the time and place of the workers compensation hearing as soon as practicable.
Read the notice letter to know when and where your hearing will occur, how long you have to present evidence, and which judge will decide your case. Then, research how the judge conducts hearings in their courtroom so you can tailor your strategy to win.
In addition, the notice of hearing tells the parties which claims or applications will be heard. This information is valuable if the hearing will address only some of the parties’ claims or applications because you can narrow the evidence needed to win.
You have the right to represent yourself at a workers compensation hearing.
But just because you can do something does not mean you should.
Hiring a workers compensation lawyer before the hearing may increase your likelihood of success at trial and help you explore other options to resolve your case sooner without litigation, such as full and final mediation or an award agreement. Indeed, less than ten percent of workers comp cases go to trial.
Feeling rushed to finish presenting evidence will cause stress at trial and may increase the likelihood that you make a mistake at trial.
If you have concerns about finishing the trial within 30 minutes, file a motion asking the workers compensation judge for more hearing time. I recommend explaining why you want more time (for example, if you have multiple witnesses) in that motion.
Many judges will grant requests for one to two hours to complete the trial
Generally, you prove a compensable injury by accident and disability through medical evidence – your office visit notes, medical excuses for days you were disabled (including your specific light duty restrictions), diagnostic imaging reports, and doctor disability letters/questionnaires.
The hearing before the deputy commissioner is your only chance to offer this medical proof.
I recommend requesting and obtaining all the medical reports that support your claims and then filing these documents with the Commission before the hearing date.
If you wait to give these records to the employer/insurer, the workers compensation judge may postpone the hearing.
The law allows you to use pretrial discovery devices, including interrogatories, requests for production, requests for admissions, subpoenas, depositions, and accident site inspections, to investigate and develop your claim or defenses.
Use these workers comp discovery devices to uncover evidence for the hearing.
To receive temporary total disability (TTD) benefits when you are partially disabled, you may have to prove that you looked for a light-duty job within your work restrictions.
Workers compensation calls this job search process “marketing.”
You must market during all periods during which you seek benefits but have partial capacity. Waiting until the week before a workers compensation hearing to market will not help you win.
Some deputy commissioners require the parties to complete and submit a Pre-Hearing Statement Order.
None of this information should surprise you 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.
You may want the judge to admit documents into evidence at the workers compensation hearing.
For example, in addition to medical evidence, you may want to admit text messages or emails when the employer disputes it had timely notice or injury photographs or letters reporting the injury if the employer questions your story.
I recommend bringing four copies of each document you may want to introduce into evidence.
In Virginia, you can ask the Workers Compensation Commission to give you access to your electronic file via WebFile.
I recommend reviewing all the papers in your file before the hearing, including documents generated by the Commission. These papers may explain how the employer plans to defend your claim.
Preparation is critical at every stage.
Read my article on the common questions asked at workers comp hearings to avoid surprises and think about the types of facts you want the judge to know at the hearing.
You can do these things at the workers comp hearing to help your case.
You must show up to your workers comp hearing.
Otherwise, the defendants can ask the court to dismiss your claim for benefits, and the Commission may grant this motion.
If you have a scheduling conflict with the hearing date, such as a scheduled surgery or difficulty obtaining transportation, you must tell the judge immediately.
The judge has the power to continue your hearing to a new date. And, in most cases, the judge will grant the continuance request if it is your first and you have good cause for doing so.
How you dress and your demeanor on the stand affects others’ perception of you, including the judge’s thoughts on your credibility.
Business or business casual clothing is acceptable.
Avoid wearing jeans, hats, and a lot of jewelry.
Litigation often creates bad blood between employees and employers and insurers.
I get it.
But avoid letting your anger or frustration show.
Be polite to everyone at the workers comp hearing. The judge will be observing you, even when you are not testifying.
What you want to say about the case and the scope of the testimony the judge allows at a workers comp hearing are two different things.
Answering only the questions asked improves your credibility.
My firm has helped thousands of injured workers and accident victims get every penny and medical treatment owed under the Workers Compensation Act.
If the insurer disputes your right to benefits, you will likely need to attend to navigate the claim process and win a workers comp hearing before you receive wage loss payments and lifetime medical care.
We help injured workers win.
Email us or call 804-251-1620 or 757-810-5614 to see if we will accept representation in your case.