Appealing a Virginia Workers Compensation Denial

Posted about 4 years ago. Applies to Virginia, 51 helpful votes

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If you've lost your worker's compensation case, stay calm. The denial can still be appealed. This guide explains what happens in a Virginia worker's compensation case, and the method for appealing a denial.

1

The Claim for Benefits.

When there is an injury at work, the claimant is required to file a Claim for Benefits with the Commission. The Commission will issue a 20 day Order to the insurance company requesting a response. If the claim is denied, it will be scheduled for a hearing before a hearing commissioner.

2

The Evidence

The Commission issues an instruction requesting the claimant to file all of his/her evidence that supports the claim with the Commission. This usually means "all" medical evidence has to be filed with the Commission prior to the hearing. Of course, at the hearing this medical evidence will be considered along with the testimony of lay witnesses. Most of the time doctors do not go to the hearing. The Commission allows medical evidence to be filed by written reports. If there still is a question about the medical evidence, either party can take a doctor's deposition and file that deposition as the doctor's evidence in the case. The main reason doctors do not go to the hearing is the expense.

3

Discovery

Each side is allowed under the Commission Rules to discover prior to the hearing everything that party wants to know about the other side's case. This is usually done by written questions called "interrogatories" and by "depositions." A deposition is testimony under oath in front of a court reporter prior to the actual hearing about the case. The deposition allows either side to know exactly what a witness will be testifying to before trial.

4

The Hearing before a Deputy Commissioner

At the hearing no argument is allowed. The hearing is just for the purpose of submitting evidence. As indicated above, the medical evidence is submitted by written reports. The claimant and his witnesses testify under oath and the insurance company will have its witnesses testify under oath.

5

The Hearing Decision

The hearing commissioner will issue his/her decision in writing some time after the hearing based on the medical records and the testimony at the hearing. A copy will be sent to all parties including the claimant and the claimant's attorney. It can take one to six months for the commissioner to issue the decision.

6

The Appeal of the Hearing Decision

If either side disagrees with the decision, there is a right of appeal to have the hearing commissioner's decision reviewed by three (3) commissioners. But on the appeal, no "new" evidence is allowed. The appeal only considers the evidence that was submitted to the hearing commissioner. Both sides are allowed to submit written arguments.

7

Standard for Review of Appeals

On appeal, there are some standards the Commission has adopted over the years. One critical standard is that the three (3) commissioners will almost never second-guess the hearing commissioner on credibility decisions. This is so because the hearing commissioner is the only one who actually hears "live testimony" and is able to consider the "demeanor" of the witnesses. Another critical standard is that the claimant has the "burden of proof." This means the claimant has to prove at least by a preponderance of the evidence (at least 51%) that he/she should win. If the evidence is not there or incomplete, the claimant loses

8

Representation by an Attorney

The biggest mistake claimants make is to do the hearing themselves without experienced representation hoping to correct any errors by an appeal. As Abraham Lincoln once said, he who represents himself has a fool for an attorney. There is just no substitute for not obtaining representation when your claim has been denied and a hearing is necessary. This is my advice. After an insurance company denies the claim, call an experienced Workers Compensation Lawyer right away. If you want a free consultation on your Virginia Workers' Compensation Case: call now at 804-358-4766 or 1-800-256-8862 or email me at jervalaw@aol.com

Additional Resources

A claimant can check the Commission website for more information. Also, the Commission now allows a claim to be filed online.

Virginia Workers Compensation Commission

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