Workers’ Compensation Appeal Process in Virginia
So you filed a Virginia workers compensation claim, presented your case at a workers comp hearing before a deputy commissioner, and received a written decision. Unfortunately your claim for workers compensation benefits, including lifetime medical treatment, temporary total disability payments, and permanent partial disability compensation, was denied. What do you do next?
In Virginia you have the right to file a workers compensation appeal if the deputy commissioner denies your claim. But you must act quickly and carefully. One mistake during the workers’ comp appeals process and your claim may be barred permanently.
This article explains the rules for filing a workers compensation appeal and how you can present your case effectively if the Commission has denied your case. If you’re looking to appeal the insurance company’s denial of your workers’ comp claim, then read our article on how to file a Virginia workers’ comp claim for more information.
A well thought out workers’ comp appeal and argument can help you get the denial reversed or negotiate a valuable workers compensation settlement. If you have any questions about your case, contact workers’ compensation attorney Corey Pollard for a free consultation. We’ve helped hundreds of disabled workers win their claims before the Workers Compensation Commission and get approved for Social Security disability benefits if they’re unable to return to their pre-injury employment. You could hope for the best while appealing your workers comp denial. Or you could contact someone who has been through the process many times and has a track record of success. We’re ready to help you.
Ask the Deputy Commissioner to Change His or Her Mind – Workers Comp Request for Reconsideration
After issuing a written decision the deputy commissioner keeps jurisdiction over your case for 30 days. During this time you can file a Request for Reconsideration. This request is sent to the deputy commissioner who presided over your hearing and who issued the written decision in your case.
A Request for Reconsideration of the deputy commissioner’s decision is not always appropriate. But there are some circumstances where it should be used:
- If you believe the deputy commissioner did not see or review certain documentary evidence, including medical records. This happened in one of my cases recently, where the deputy commissioner did not see the treating physician’s statement limiting my client to working only 40 hours per week. After receiving our Request for Reconsideration the deputy commissioner found that my client was entitled to temporary partial disability benefits and had no obligation to market his residual work capacity for any overtime that he may have missed.
- If you believe the deputy commissioner made a factual error, such as miscalculating the amount of benefits owed, then a Request for Reconsideration makes sense.
You must act quickly if you want to file a Request for Reconsideration. The deputy commissioner loses jurisdiction over your case after 30 days.
Virginia Workers Compensation Appeals Process
Workers’ Comp Appeal Level 1: Review by the Full Workers’ Compensation Commission
If you disagree with the deputy commissioner’s decision, and filing a Request for Reconsideration is not appropriate, you may file a request for review with the full Workers Compensation Commission. Filing a request for review is the same thing as filing a workers compensation appeal.
Rule 3 of the Rules of the Virginia Workers Compensation Commission governs the procedure for appeals to the full Commission.
The Written Request for Review by the Full Commission
You must file a written appeal with the Clerk of the Commission within thirty (30) days of the date of the deputy commissioner’s decision.
Your Request for Review should assign as error specific findings of fact and conclusions of law. A simple, “I disagree with the deputy commissioner’s decision,” is insufficient. Failure of a party to assign any specific error in its request for review may be deemed by the Commission to be a waiver of the party’s right to consideration of that error. But the Commission has the power to address any error and correct any decision on review whether it was raised by a party or not.
After your appeal is filed the Commission will order a copy of the hearing transcript. When the hearing transcript is ready it will be filed via WebFile. You may also request a hard copy of the transcript.
Briefing and Written Statements to the Full Commission
The full Commission decides appeals using not only the hearing transcript and evidence admitted at hearing, but also by reviewing written statements and briefs from the parties. Rule 3.2 states that the Commission “will advise the parties of the schedule for filing brief written statements supporting their respective positions. The statements shall address all errors assigned, with particular reference to those portions of the record which support a party’s position.”
Your written statement should, at a minimum, include the following: an overview of the procedural history; a factual summary; citations to the hearing transcript; and case law that supports your position. We recommend hiring a workers comp lawyer to help you with your written statement before the full Commission – whether you are appealing an unfavorable decision or trying to defend your right to benefits after the employer filed an appeal.
Usually you cannot introduce new evidence when you file your appeal to the full Commission or your written statement in support of your position. Rule 3.3 provides that no new evidence may be introduced unless you file a petition to reopen or receive after-discovered evidence.
The Commission will grant a petition to reopen the record for additional evidence only when it appears that doing so is absolutely necessary and advisable and also when the party requesting that the evidentiary record be reopened is able to conform to the rules prevailing in Virginia for the introduction of after-discovered evidence. For example, if you fail to disclose prior medical treatment in discovery the Commission may reopen the case.
Because the rules on presenting additional testimony are so strict, it’s important that you conduct discovery and build your case before the hearing.
Oral Argument before the Full Commission
Usually the full Commission does not hear oral argument when deciding appeals and will make its decision using the evidentiary record and written statements. But Rule 3.4 does permit oral argument on appeal. It states:
A party may request oral argument at the time of application for review. Otherwise, the review shall proceed on the record.
If oral argument is requested and the Commission considers it necessary or of probable benefits to the parties or to the Commission in adjudicating the issues, the parties will be scheduled to present oral argument.
Any party may request the Commission to schedule argument by telephone conference by giving notice to the Clerk of the Commission and to opposing counsel at least five days before the scheduled date for argument.
Each side will be limited to no more than 15 minutes for presentation of oral argument.
In our experience the full Commission will grant a request for oral argument only if the appeal contains a novel issue. Usually the parties would prefer to file a written statement so that they can lay out all their appeal arguments.
Standard of Review before the Full Commission
The full Commission has the authority to reverse a deputy commissioner’s factual and legal findings. It review the case de novo.
If the deputy commissioner made a credibility finding based on observations of the witness at hearing, however, then the full Commission may not arbitrarily disregard that finding. This is why credibility is so important. If the deputy commissioner finds that the injured employee is honest and sincere and awards the case based on that finding, it will be difficult for the employer to get the decision reversed by the full Commission on appeal.
Who Makes the Appeal Decision at the Full Commission?
The deputy commissioner who heard your case at trial and issued a decision may not participate in your appeal.
Usually your appeal will be decided by the three Commissioners who make up the full Commission. This includes one employer’s representative (a former defense attorney), one claimant’s representative (a former lawyer for injured workers), and one neutral person (someone who represented both insurance companies and employees).
If one of the full Commissioners has a conflict of interest then a deputy commissioner who did not preside over your hearing may participate in the appeal.
Appeal to the Court of Appeals of Virginia
If you disagree with the full Commission’s decision then you may file an appeal with the Court of Appeals of Virginia.
Notice of Appeal
When an appeal is filed with the Court of Appeals of Virginia, the Commission’s award or decision is suspended until the Court of Appeals issues a decision.
Your notice of appeal must include the following:
- Your name and address
- The names and addresses of all appellants and appellees
- The name, Virginia State Bar number, mailing address, telephone number, and email address of counsel for each party
- The name, mailing address, telephone number, and email address of any party not represented by counsel.
- Whether you challenge the sufficiency of the evidence
Time to File a Workers Compensation Appeal with the Court of Appeals
Under Virginia Code Section 65.2-706 the notice of appeal must be filed with both the Clerk of the Commission and the office of the Court of Appeals within 30 days from the date of the full Commission’s decision.
The time period for filing an appeal is jurisdictional. This means that you may forfeit your rights if you file your workers comp appeal late.
When you file your appeal with the Clerk of the Court of Appeals, make sure that you include a $50 fee payable to the Clerk. You must also file an appeal bond of $500. If, however, you have not returned to work or are unemployed because of disability and you file an affidavit stating the same, the appeal bond requirement may be waived.
Record on Appeal
After the Clerk of the Court of Appeals receives the notice of appeal, he or she will prepare the evidentiary record. This includes all documents filed with the Court of Appeals as well as all documents filed with the Workers’ Compensation Commission. When arguing the case on appeal your attorney will cite to this record, also known as the appeals appendix.
Argument Before the Court of Appeals in Workers Compensation Cases
The appellant, also known as the party who filed the appeal, must file an opening brief with the Court of Appeals within 40 days after the record is filed. The appellee, which is the party who won at the full Commission level, must file a response brief within 25 days after the opening brief is filed. The appellant is then allowed to file a reply brief.
Having an attorney represent you in your workers comp appeal is important for several reasons. Specifically you will need an attorney who is familiar with the Rules of the Supreme Court of Virginia regarding timelines, preparing the appendix and evidentiary record, and the length and page limits of opening briefs.
After written briefs are filed, the Court of Appeals may decide that oral argument is necessary. The court will schedule oral argument with the parties’ attorneys.
It’s important that you file a written brief and attend the oral argument, if one is scheduled. This is your opportunity to tell your story and to explain to the Court of Appeals why you’re owed workers’ comp benefits in Virginia.
Top-Rated Attorney for Workers’ Compensation Appeals in Virginia
If you need help with the workers comp appeals process, call, text, or email Corey Pollard today. We’ve helped hundreds of injured employees and their families who were facing a situation just like yours.