Winning a Virginia Workers' Compensation Hearing

Winning a Virginia Workers' Compensation Hearing
By Jerry Lutkenhaus

If your claim has been denied by the insurance company, the Virginia Workers Compensation will schedule your case for a hearing in front of a Deputy Commissioner. You will have 60-120 days to prepare for the hearing. This is what you need to know.

Discovery

You and the insurance company are allowed to engage in discovery. This usually means interrogatories, requests for production of documents, and depositions of witnesses.

Interrogatories

You are allowed to send the other side written questions asking about defenses, witnesses, and other evidence that may be used against you at the hearing. The other side has 21 days to respond. This is an excellent way to find out why your case is being denied and what evidence supports the denial of your claim.

Requests for Production

You are also allowed to request the other side to provide you any written documents about your case. If you have provided the insurance company a written statement about the accident, it is essential to obtain a copy of this document so that you review what you have previously reported about the accident.

Subpoena duces tecum

You can request doctors and other parties to send you documents concerning your claim. You do this by requesting the Commission to issue a subpoena duces tecum for these documents.

Pre Hearing

You now know the issues in your case. You now know the documents and witnesses that support your claim. You need to subpoena the witnesses to the hearing that support your claim. You also need to file with the Commission prior to the hearing the medical documents that describe your injury, accident, and disability. If the medical records are incomplete, you need to have the treating doctor prepare a comprehensive report addressing the injury, the accident, and any disability. The Commission accepts medical records as an exception to the hearsay rule. Thus, it is rare for doctors to testify at the hearings. Medical evidence is almost always submitted in the form of records or reports without testimony.

The Hearing

Now that you are ready you present the documents and witnesses that support your claim. The insurance company will do likewise. The Deputy Commissioner does not hear arguments he just listens to the witnesses and then reviews the documents and renders a written decision.

Need for an attorney

The insurance company will be represented by an attorney; thus, it behooves the claimant to consult an experienced Virginia Workers Compensation attorney for representation.

Appeal if you lose the hearing

If the case goes against, you have 20 days in Virginia to file for review of the Deputy Commissioners decision which will be heard by Three Commissioners. But, you should never count on the appeal process to correct the mistakes or omissions you made at the hearing. No new evidence is allowed in the appeal process in most instances. Thus, if you want to win, you need to win by proper preparation and presentation of favorable evidence at the hearing level.

Conclusion

Proper preparation is the key to winning your worker's compensation case. Thus, even if the insurance company has denied your case, you can still win at the hearing.

Jerry Lutkenhaus is a practitioner of Workers Compensation law in the Richmond, Virginia area for over 30 years. He was given an AV rating by Martindale Hubbell in 2003. Lexis Nexis listed him in the 2005 Bar Register of Preeminent Attorneys. For more information, see http://www.geraldlutkenhaus.com and http://www.virginiadisabilitylawyer.com You can call Jerry Lutkenhaus now at 804-358-4766 for a free consultation about your disability case.

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