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.
Yes.
Workers comp is a mixture of administrative and tort law, with some cases requiring a trial to resolve disputed issues.
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:
In other words, the parties can present evidence at a hearing to address any disputed issue.
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:
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.
You will need facts to win your workers comp hearing.
The workers compensation discovery process is how you get them.
Depending on what facts and documents you need to prove your case, consider doing the following:
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).
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:
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.
There are two types of evidentiary hearings in workers comp claims: on-the-record hearings and trials.
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.
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.
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.
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.
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.
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.
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:
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:
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.
The following people will be at your workers comp trial:
Workers comp hearings are open to the public, so you may have some spectators (though it’s rare).
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.
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.
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.
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.
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.
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:
The party with the burden of proof gets to open and close the case.
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.
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:
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.
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.
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.
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:
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.
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.
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.
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.
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.
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.
You have three options if you disagree with the deputy commissioner’s decision after trial:
Please read my article on workers compensation appeals for more information.
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.
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.