Experienced defense attorneys will conduct extensive discovery in your workers compensation case. This may include propounding interrogatories, requests for admissions, and requests for the production of documents, as well as taking your deposition.


If this happens you should search for the right workers compensation attorney for you. Though most defense attorneys play by the rules, some may ask questions or request information that they are not entitled to under the Rules of the Virginia Workers Compensation Commission and existing case law. A good attorney can protect you from opposing counsel.


In discovery your employer and its insurance company will ask you about any prior medical treatment you had before the work accident that is the subject of your case. The insurer is looking for any possible defense to your claim, such as arguing that your current need for medical treatment and your work restrictions are related to a preexisting condition.


With some exceptions, you must provide this information. A recent Court of Appeals of Virginia decision in Victoria’s Secret v. Mauldin, Record No. 0212-17-2 (Va. Ct. App. July 18, 2017) shows what can happen if you don’t.


In Mauldin the employee fell from the top of a ladder while restocking lingerie. She alleged injuries to her back, neck, and other body parts.


During discovery and at the evidentiary hearing the employer asked the employee whether she had previously suffered from injuries or pain similar to those alleged in her claim for benefits. Each time the employee answered no, with the exception of a fall in 2010 from which she had recovered completely.


Less than two weeks after the hearing the employer received medical records from the employee’s primary care provider. It’s important to note that the employee’s primary care provider was located in Maryland. The employer, therefore, could not use a Virginia subpoena to obtain the records. As a result it took longer to receive them.


The primary care provider records showed that the employee had sought treatment for low back pain and associated symptoms roughly three weeks before the accident that was the subject of her claim. The employee had not disclosed this office visit to anyone else.


The deputy commissioner issued an opinion in favor of the employee one day after the employer received the primary care provider records. The employer filed a motion to reconsider and a motion to dismiss based on the employee’s failure to disclose the records of her prior injury. The deputy commissioner denied the motions.


The employer requested review by the full commission. The commission affirmed the award of benefits and refused to consider the after-discovered evidence because the “information was available and could have been obtained prior to the date that the record closed by the exercise of due diligence.”


The employer appealed to the Court of Appeals of Virginia, presumably arguing that Rule 3.3 of the Rules of the Virginia Workers’ Compensation Commission applied. That rule states that a record may be reopened for consideration of additional evidence “only when it appears to the Commission that such course is absolutely necessary and advisable and also when the party requesting the same is able to conform to the rules prevailing in the courts of this State for the introduction of after-discovered evidence.”


To prevail on reopening a decision in Virginia a party must establish that the after-discovered evidence: (1) was obtained after the hearing; (2) could not have been obtained prior to hearing through the exercise of reasonable diligence; (3) is not cumulative, corroborative, or collateral (in other words it must show something new); and (4) is material and should produce an opposite result before the commission.


In reversing the commission’s award of benefits to Mauldin, the Court of Appeals found that the after-discovered medical evidence was material to determining the employee’s condition because it indicated that her condition and disability may not have been caused by the subject workplace injury. Further, the primary care provider records were not “available and known” to the employer because the employee denied having had similar issues in the past and the employer had no reason to believe the medical records would show otherwise. As such the employer met the requirements of reopening the record.


The case has been remanded to the commission to re-open the record for an evidentiary hearing on the employer’s motion to re-consider the decision of the commission. We’ll keep an eye out for the new decision. The commission will determine whether the primary care provider records are enough to reach a different decision.


Take-Away Points on Disclosing Prior Medical Treatment


Some take-away points from Mauldin:


  • Always disclose prior medical treatment. Your attorney can obtain evidence – through your testimony and through the opinions of your doctors – to try to show that the work accident aggravated, accelerated, or exacerbated your condition, or that your prior injury had resolved as shown by you returning to full duty work.


  • The cover-up is worse than the crime. A finding that you withheld earlier medical treatment can lead to a finding that you’re not credible and damage all your testimony. This is likely to lead a denial of workers compensation benefits.


Looking for a workers compensation attorney in Virginia? Not sure if you should file a claim for workers comp benefits? Call, text, or email Corey Pollard for a free consultation. We’ve helped hundreds of injured employees obtain temporary total disability payments, permanent partial disability benefits for loss of use, lifetime medical treatment, and workers compensation settlements. And if you’re unable to return to work we can also help you get approved for Social Security Disability benefits.

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