Appeal of a Virginia Worker's Compensation Denial

Jerry Lutkenhaus

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For over 30 years I have been representing claimants before the Virginia Workers Compensation Commission. Often, I have been asked to review adverse decisions by the Commission for a possible appeal. More likely than not I have to decline representation. These are the reasons why:

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.

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.

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.

Medical Evidence. 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.

Hearing. 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.

The 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.

Appeal. 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.

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.

My Review. Thus, if the claimant comes to me with an adverse decision based on credibility, I have to tell the claimant I decline representation due to the above Standard of Review. Also, if the claimant loses because the evidence is incomplete, I also have to decline representation because evidence cannot be added to the case on appeal.

Representation. 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.

Copyright© 2006, Gerald G. Lutkenhaus. ALL RIGHTS RESERVED

This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

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 the websites at or or call for a free consultation at 804-358-4766.


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