Virginia Workers’ Compensation Rules: A Claimant’s Guide to Satisfying the Commission’s Procedures
As an injured employee, you must follow the Rules of the Virginia Workers’ Compensation Commission to protect your legal rights. This article explains the applicable workers’ compensation rules so that you can have leverage over the employer and insurer.
Each court and administrative agency that resolves legal disputes has rules governing litigation procedures.
The Virginia Workers’ Compensation Commission is no different. It has rules that apply to claims based on occupational injuries and illnesses.
Code Section 65.2-201(A) gives the Workers’ Compensation Commission rule-making authority.
But this power to make rules has limits.
The Virginia Workers’ Compensation Commission’s rules must be consistent with the provisions and purposes of the Workers’ Compensation Act.
Further, the Commission’s interpretation of its rules must not be arbitrary or capricious. Otherwise, it will not survive scrutiny by the Supreme Court of Virginia or the Court of Appeals of Virginia.
This article explains the Virginia workers’ compensation rules that apply to every injured employee, employer, insurance carrier, third-party administrator (TPA), and medical provider seeking the Commission’s help resolving a dispute.
Reading these court rules is the first step in every personal injury or workers’ compensation case. Failure to know or follow the Virginia workers’ compensation rules may cost you lifetime medical treatment or tens of thousands of dollars in benefits (or more).
Please continue to learn more.
If you have questions about Virginia workers’ compensation law or want help negotiating a fair work injury settlement payout, call us at (804) 251-1620 or (757) 810-5614.
Each day, we help injured employees like you follow the workers’ compensation rules to win their claims.
Why Do We Have Workers’ Comp Rules?
According to the Virginia Workers’ Compensation Commission, its rules “provide mandatory procedures for the filing of claims and applications and the resolution of disputes both informally and through hearings.”
Who Must Follow the Workers’ Compensation Commission Rules?
Everyone.
Like state and federal court rules, the Virginia workers’ compensation rules apply to all involved parties in a case. No exceptions exist.
Who Makes the Virginia Workers’ Compensation Commission Rules?
The three Commissioners who lead the Virginia Workers’ Compensation Commission make the rules with input from attorneys from the Virginia Trial Lawyers Association, Virginia Association of Defense Attorneys, and the Virginia Workers’ Compensation American Inn of Court.
How Often Do the Workers’ Comp Rules Change?
No statute requires the Workers’ Compensation Commission to amend its rules on a specific schedule.
Most recently, the Commission amended its workers’ compensation rules effective January 4, 2024.
Before this year, however, July 2010 was the last time the Commission had amended its rules.
Titles of Virginia Workers’ Compensation Rules
The Rules of the Virginia Workers’ Compensation Commission have 37 separate rules grouped into 13 titles.
Many of the 37 rules have subparts.
Listed below are the categories and rules.
Rule 1 – Prehearing Procedures
This category includes thirteen workers’ compensation rules: Rules 1.1 to 1.13.
Rule 1.1 lists the requirements for your original claim for benefits.
Rule 1.2 lists the requirements for claims for changes in condition, including compensable consequence claims, applications seeking the reinstatement of wage loss benefits, and claims for the authorization and payment of denied medical treatment.
In addition, Rule 1.2 has the “90-day rule.” Under this rule, the Commission will only award up to 90 days of wage loss benefits before the filing date, which encourages injured employees to act quickly.
Fortunately, the 90-day rule does not apply to initial claims for benefits. You can seek – and obtain – more than 90 days of past-due workers’ compensation payments through your original claim. Further, the 90-day rule does not apply to requests for cost of living adjustments (COLAs) for inflation.
Rule 1.3 adds an extra requirement to injured worker claims. It says you must file supporting evidence, such as medical reports, within 90 days of filing your claim. If you don’t, the employer can move to dismiss your claim. Learn how to request medical reports in your case here.
Rule 1.4 lists the technical requirements for an employer’s application for a hearing to suspend or terminate benefits or seeking a credit for overpayment. If you receive notice that the employer applied for a hearing (also called a dispute form by the Commission), review the employer’s pleading for compliance with this rule. Failure to comply should result in the Commission rejecting the application on technical grounds and ordering the reinstatement of your payments.
Rule 1.5 does three things.
First, it allows the Commission to order the employer to respond to your claim and provide reasons for denial if applicable.
Second, this rule gives you fifteen days to present evidence opposing the employer’s efforts to stop benefits.
Third, it permits the Commission to refer the employer’s application to mediation or for a hearing.
Rule 1.6 provides the appellate procedure for any party that disagrees with the Commission’s decision to accept or reject an employer’s application to stop benefits.
Rule 1.7 lists the technical requirements for settlement papers. A workers’ compensation settlement is not final until the Commission approves it; therefore, you should read this rule when drafting the compromise and release and asking for settlement approval.
Rule 1.8 controls prehearing discovery in workers’ compensation cases. The Commission first looks to these rules when deciding disputes about interrogatories, requests for production, requests for admissions, subpoenas, and depositions.
This workers’ compensation rule plays a critical part in the daily functions of attorneys for injured employees, employers, and insurers.
Rule 1.9 explains when the Commission will refer a claim or an employer’s application to the Alternative Dispute Resolution (ADR) Department for full and final settlement mediation or issue mediation. In addition, this rule provides examples of disputes that may be appropriate for issue mediation.
Rule 1.10 says employers and insurers must file a written notice of intent to rely on willful misconduct or violation of a safety rule defense at least 15 days before the scheduled hearing.
Rule 1.11 gives deputy commissioners the right to require the parties to submit a prehearing statement detailing their claims, defenses, and witnesses. Most deputy commissioners use this form. You must submit it at least seven days before the scheduled hearing.
Rule 1.12 gives the Commission the power to sanction the parties for violating the Virginia workers’ compensation rules. In addition, it lists the potential sanctions: rejection of a pleading, striking of a defense, exclusion of evidence, or dismissal of a claim or application.
Rule 1.13 is a new workers’ compensation rule that follows practices in state and federal courts. The moving party or their legal counsel must make a reasonable effort to confer and resolve the matter with the opposing party before filing a motion. In addition, the party opposing the motion has three business days to respond before the Commission rules on the motion.
Rule 2 – Hearing Procedures
This category has four workers’ compensation rules: Rules 2.1 to 2.4. These rules address the three types of workers’ compensation hearings to resolve contested issues and requests for an expedited (“fast-tracked”) hearing.
Rule 2.1 describes when the Commission will resolve contested issues without an evidentiary hearing. Instead, the court determines the claim after reviewing written briefs (position statements). This procedure is similar to a motion for summary judgment in civil court.
Rule 2.2 controls evidentiary hearings, which the Commission must conduct as a judicial proceeding. This rule consists of multiple subparts that address requests for continuances (postponement of the hearing) and the presentation of evidence and testimony.
Rule 2.3 explains how to get an expedited hearing on a change in condition claim. Expedited workers’ compensation hearings are available only if you previously received an Award Letter.
Rule 2.4 is an addition to the post-COVID era. It describes the procedures for video hearings, which may be appropriate when you have a Virginia workers’ compensation claim but do not live in the state.
Rule 3 – Post-hearing Procedures
This category includes four rules that govern appeals from the initial hearing (deputy commissioner) to the Commission (three Commissioners) level: Rules 3.1 to 3.4
Rule 3.1 provides the timeline for requesting a review of an award, order, or judicial opinion you disagree with. The rule also explains what information to include in the appellate request.
Rule 3.2 says that on appeal, the parties argue through written statements.
Rule 3.3 states that the Workers’ Compensation Commission will not consider new evidence on appeal except in limited situations.
Rule 3.4 allows the parties to request oral arguments when they request a review of a lower-level decision. However, the Commission does not have to grant the request.
Rule 4 – Filing Documents
Rule 4 includes two rules that control what documents the parties must file with the Commission: Rules 4.1 to 4.2.
Rule 4.1 directs the parties to submit forms memorializing agreements regarding compensation payments. This rule also limits how long an employer can hold agreement forms you have signed.
Rule 4.2 orders the parties to exchange all medical records and reports received during the litigation. This rule generally has no exceptions. Further, this rule says treating health care providers must produce medical reports if asked.
Rule 5 – A Cost of Medical Services
This rule restates existing law when it says an injured employee has no liability for the costs of medical services payable under the Workers’ Compensation Act.
Our firm sees little litigation concerning Virginia Workers’ Compensation Commission Rule 5.
Rule 6 – Award of Attorney’s Fees Under Section 65.2-714 of the Code of Virginia
This title includes two rules governing awards of attorney’s fees under Virginia Code Section 65.2-714: Rules 6.1 to 6.2.
Specifically, these rules address situations where an injured worker’s lawyer seeks a fee from a medical provider when litigation is needed to receive authorization and payment for a particular medical treatment.
Rule 6.1 states that the Commission will award an attorney’s fee to the employee’s lawyer if the lawyer and the medical provider agree on an amount and submit the amount of medical charges recovered.
Rule 6.2 details the procedure when a claimant’s lawyer and the medical provider disagree on the attorney’s fee for recovered charges.
Rule 7 – Employer Responsibilities
Rule 7 has two rules addressing employer responsibilities under the Workers’ Compensation Act: Rules 7.1 to 7.2.
Rule 7.1 directs every employer to file with the Commission proof of workers’ compensation insurance.
Rule 7.2 orders every employer to post notice of compliance with the Workers’ Compensation Act at a place its employees frequently visit.
Rule 8 – Self-Insurance
Rule 8 has two rules explaining when an employer can self-insure for workers’ compensation and what the Commission does with that information.
Rule 9 – Payment of Compensation
This workers’ compensation rule category has two rules for compensating injured employees: Rules 9.1 to 9.2.
Rule 9.1 explains the days included in calculating the waiting period for temporary partial (TPD) or temporary total disability (TTD) benefits. All days or parts of a day when you cannot earn a full day’s wages due to injury count toward the waiting period.
Rule 9.2 says the employer, insurer, or claim administrator (Sedgwick, Corvel, Esis, Landing, Gallagher Bassett, PMA, etc.) must pay owed compensation to you directly. Awarded attorney’s fees, however, go directly to your lawyer.
Rule 10 – X-ray Evidence for Coal Workers’ Pneumoconiosis Claims
This category includes three rules for X-ray evidence for coal workers’ pneumoconiosis claims, a condition known as “black lung disease.”
Rule 10.1 limits the number of X-ray interpretations each party can submit in a black lung claim.
Rule 10.2 permits a party to a black lung disease claim to submit x-ray evidence to the Workers’ Compensation Commission for interpretation by a Pulmonary Committee. Doing so, however, binds the party to the Commission’s interpretation and classification of the extent of the disease.
Rule 10.3 explains who the Commission may appoint to the Pulmonary Committee.
Rule 11 – Pneumoconiosis Table
This rule also applies to pneumoconiosis claims.
It provides a table explaining how the Commission classifies the stages of black lung disease.
Rule 12 – Hearing Loss Table
This rule applies to claims for occupational hearing loss.
It explains how the Commission determines compensable percentages of hearing loss using a table with average decibel losses.
Rule 13 – Table of Percentage of Loss of Visual Acuity
This rule applies to claims for vision loss.
It explains how the Commission determines the percentage of loss of visual acuity based on Snellen Chart Readings.
How Do I Get a Complete Copy of the Virginia Workers’ Compensation Rules?
You can contact us for a copy of the Rules of the Virginia Workers’ Compensation Commission.
You can also get a copy by clicking here.
We Use the Rules of the Virginia Workers’ Compensation Commission to Get Results for Injured Employees
You may have read this quote before: “You have to learn the rules of the game. And then you have to play better than anyone else.”
This saying applies to Virginia workers’ compensation rules.
You can try to read all the rules and court decisions that interpret them, all while dealing with an aggressive claim adjuster or insurance defense attorney and trying to heal.
Or you can contact us for help with your workers’ compensation case.
Call (804) 251-1620 or (757) 810-5614 today.
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