Your Guide to Asking the Commission to Issue a Subpoena for Records or Witnesses in Your Workers Compensation Case
You Can Use Subpoenas to Get the Documents and Records You Need to Support Your Work Injuries and Wage Loss, as well as Compel Other People to Attend the Hearing and Provide Testimony
The investigation and discovery process is an important part of proving you’re entitled to workers compensation benefits or negotiating a fair Virginia workers comp settlement. And one of the most effective discovery devices available to injured employees and their attorneys is the subpoena. A subpoena can be used to make sure an important witness attends trial or to obtain medical records and other documents necessary to prove your case and entitlement to a lifetime medical award, temporary total disability payments, or permanent partial disability for loss of use of the injured body part.
This article explains what a subpoena is, who can request a subpoena, and how to request a subpoena in workers compensation cases in Virginia. If you have a question or are looking for legal representation following a work injury, call, email, or text workers compensation attorney Corey Pollard for a free, no obligation consultation. We represent injured employees and their family members in Virginia workers compensation matters throughout the state.
What is a Subpoena?
A subpoena is a court order directing someone – either a person or business – to do something or to produce something.
There are two types of subpoenas.
The first type of subpoena is a court order directing a person to appear at a specific time and place and give oral testimony under oath about a certain matter. In workers’ compensation this means the Workers’ Compensation Commission is ordering the person identified in the subpoena to appear at your hearing and answer questions from you, your attorney, or the employer and insurer about your workplace accident and everything that has happened since then.
The second type of subpoena is called a subpoena duces tecum. This is a court order that directs a person to appear at a specific time and place and to bring with them the documents specified in the order. In a workers’ compensation setting these are usually medical records, wage documents, and employee personnel files that are relevant to the issues in your pending workers’ compensation claim and that are in someone else’s possession.
Who Can Request a Subpoena from the Workers Compensation Commission in Virginia?
Any attorney, unrepresented employee, or unrepresented employer may prepare and request subpoenas from the Commission directly. Insurance companies, claims adjusters, and corporate employers cannot request subpoenas unless they do so through their legal representative.
If an unauthorized person requests a subpoena, the Commission will refuse to forward it for processing and service.
Where Do I Send My Request for Subpoena in a Work Injury Case?
You should file your request for subpoena with the Commission’s headquarters in Richmond or at the nearest regional office. When the subpoena is requested you must include the following:
- The original and two copies of the subpoena;
- A letter asking that the Commission serve the subpoena on the individual or entity. The letter should be addressed to the sheriff of the city, county, or town in which the subpoena is to be served;
- A money order for $12.00 made payable to the Treasurer of Virginia; and
- A letter explaining why the documents sought are material and relevant to your claim, or why the potential witness’ testimony is important to your case. We recommend consulting with an attorney to prepare this statement. It’s important that the Commission issue the subpoena so that you have the documentation necessary to win your claim.
The Commission will complete the return date portion of the subpoena, but you should complete the “fee to be paid” portion.
After you request a subpoena a judge will review your request to make sure that you have shown the documents or person being subpoenaed are material and relevant to your claim. It is important that your letter explaining the material and relevance is detailed or the judge may deny your request.
Can My Attorney Issue a Subpoena?
Yes, your attorney can issue subpoenas for witnesses in workers’ compensation hearings under Virginia Code Section 8.01-407. He or she can also issue subpoenas duces tecum for medical records from your health care providers and records from previous and current employers under Section 8.01-413 of the Virginia Code. Your attorney will mail the summons to the Clerk of the Commission and make sure that the summons is served. So long as the attorney-issued subpoena is issued at least five business days before the hearing, the sheriff in the appropriate jurisdiction will serve it.
Can I Request a Subpoena at Any Time?
The Commission’s Rules set forth the time requirements for requesting subpoenas.
If you’re requesting a witness you must do so at least 10 days before the hearing. If you’re requesting medical records then you must file the request at least 15 days before the hearing.
Do not wait until the last minute to request a subpoena. As a general rule we recommend filing the request for subpoena with the Commission at least 30 days before the hearing.
Can I Subpoena Records from an Out of State Health Care Provider?
Many of our clients live in Northern Virginia near DC, Maryland, or West Virginia, or Hampton Roads close to the North Carolina state line. This means that some of their doctors are located out of state.
The Commission will not issue a subpoena for medical records from an out-of-state health care provider because such a subpoena is unenforceable. In these cases you must request the records from your out-of-state health care provider well in advance because there is no enforcement mechanism to get the records. If you request the records timely, but still don’t receive them before the hearing, most judges will grant your request for a continuance of the hearing.
Should I Request a Subpoena through the Commission or Contact My Medical Providers and Other Important Sources of Information Directly?
You will want documents from all the health care providers who have treated you for your work-related injuries. You may also want documents from employers you have worked for since the accident in a light duty role, or from employers you worked for at the time of your injury. This information is used to establish your entitlement to temporary partial disability benefits or to prove that the average weekly wage used to calculate your temporary total disability payments should be higher.
Your health care providers and other employers may provide you with the records and documents you need with a simple request. Usually we request the records and documents, rather than issuing a subpoena. This is the best route in most cases.
There are, however, some exceptions to this rule. For example, you will want to issue a subpoena if you think that the medical provider or other employer will not cooperate. They cannot ignore the subpoena and you have a remedy if they do – filing a motion to compel with the Commission and seeking sanctions. You should also issue a subpoena if your hearing is scheduled to take place within the next thirty days and you have not received the records you need. A person or company receiving a subpoena must respond within a set time limit. If they don’t, you have grounds to seek a continuance of the hearing from the Commission. This possibility does not exist if you sent an informal request.