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Question #10: Will I have to go to court to recover my benefits?

WILL I HAVE TO GO TO COURT TO OBTAIN WORKERS COMPENSATION BENEFITS?

We are often asked whether workers compensation claims are like other injury cases, like auto accidents or slip and fall cases.  While there are many similarities, there are significant differences. Some workers compensation cases in Virginia do end up in “court”.  However, the process to get to “court” and what happens in court is really very different than the process of going to court in other types of cases.  In Virginia, workers compensation cases are heard by someone called a “Deputy Commissioner” (sort of like a judge) and the “hearings” are held, typically in a court type room and atmosphere.

Before discussing what happens in a hearing before a Deputy Commissioner, we should understand how a claim ends up at a hearing.

WHAT DOES THE EMPLOYER HAVE TO DO IF I REPORT AN ACCIDENT?

If you report an accident to your employer, the employer is responsible for filing something called a “First Report of Incident” with the Virginia Workers Compensation Commission. In many ways, this starts the process.  It should be understood, however, that the filing of a report by an employer does not protect the injured workers rights. As more fully explained below, the injured worker is responsible for filing a claim with the Virginia Workers Compensation Commission.

The First Report of Accident is often called a “FROI” to make it easy to reference.  The employer must file this kind of report for all injuries that are reported and/or that the employer has knowledge.  The law requires that the report be filed within 10 days after the employer obtains notification of the accident. For minor injuries i.e. those that do not involve wage loss or minor cuts, scrapes and bruises, the employer has more time to file the report. The employee should report the accident to the employer as soon as possible.  In most cases, the employee has 30 days to report the accident with the employer. Again -- reporting the accident is not the same as filing a claim with the Virginia Workers Compensation Commission. The only thing reporting the accident accomplishes is that it makes the employer responsible for filing a “FROI”.

When the Commission receives the FROI from the employer, the Commission creates a file and assigns a number -- known as a JCN number to the claim. This action prompts important action from the Commission. Specifically, the Commission will send out a letter to the injured worker with the JCN number and some literature that gives guidance to the injured worker about how to protect the injured worker's right.  Included in the literature is a “Claim for Benefits” form which the employee can complete and send back to the Virginia Workers Compensation Commission. Once the employee receives the JCN, we advise the injured worker to use this number on all future correspondence to the Virginia Workers Compensation Commission. The injured worker also receives a PIN number from the Commission that is confidential and allows the injured worker to access their file on the Commission's Webfile System.  The Webfile systems is a very useful system that retains documents and important information about the claim that is accessible to the employer, insurer and the claimant (injured worker) If the injured worker hires an attorney, the injured worker's attorney gains access to the Webfile system.

THE INJURED WORKER'S DUTY TO FILE A CLAIM

When a claim is contested by the insurance company i.e. the insurance company sends the injured worker a letter denying the claim or otherwise communicates that the insurer does not intend to pay wage loss or medical benefits, the initial step for the claimant is the filing of the employee's claim.  Again, it is very important to note that an injured worker must file a claim with the Commission even if the employer has filed the FROI described above and even if the employee received payment of weekly compensation benefits and/or medical benefits.

The claim form sent to the claimant has two parts.  Part A contains general information about the claimant, the employer, the accident etc.  Part B is where the injured worker can request specific benefits, such as a medical benefits related to the accident and/or wage loss benefits for periods of time that the injured worker missed work.  If the injured worker remains out of work as of the time of the filing, a claim can be made for ongoing benefits. If Part B of the form is ont completed, the Commission does not take any action on the claim.  While the Commission will accept any form of document that contains sufficient information to assert a claim, it is helpful to use the Commission's form. Even many attorneys opt to use the form in their representation of injured workers.  If the claimant or his or her representative do not use the claim for, it is important for any correspondence to contain specifics of the claim lie the date of the accident, the days the injured worker missed from work and the benefits requested.

The claim does not have to request a hearing.  Part A preserves the claim for purposes of the Statute of limitations.  If Part B is completed, the Commission treats the request as a claim for benefits.

After a claim is by the Commission, a staff member with the Commission reviews the claim to determine if enough information about the claim has been provided. If the claimant has not offered enough information, the Commission will write the claimant or his or her attorney to request additional information. It is not uncommon for the Commission to request medical records that have not been submitted with the claim.

Many times, during the time that a claim is being reviewed by the Commission, the employee contacts the insurance company to determine if the insurance company will pay any part of the claim.

HEARINGS BEFORE THE VIRGINIA WORKERS COMPENSATION COMMISSION

The Virginia Workers Compensation Commission conducts two types of hearings.  “OTR” hearings or on-the-record hearings and evidentiary hearings or in person hearings.

If the parties, that is the insurance company and the injured worker agree to the facts in a case i.e. the way the accident happened, the average weekly wage the period of disability etc., the case may be “heard on the record.”  These hearings are much faster. However, in this scenario, the injured worker does not get their day in court, does not get to testify and does not get to call any witnesses to offer proof about their claim.

If a case is referred for for an OTR hearing, the parties or their representatives are allwoed 10 days to object to a hearing on the record. If an objection is made, the party objecting must provide  evidence about why an “in person” hearing is justified. and to provide evidence why an evidentiary hearing is necessary.

Since many disputes cannot be resolved on the record, the Commission schedules evidentiary hearings where the parties can bring witnesses to testify about the facts of the case.  These hearings are more formal than OTR hearings, but are somewhat more relaxed than trials before other courts. For example, while the Rules of Evidence are generally used at hearings, the Commission is more relaxed on the rules than a judge in another type of case may be.  If a claim is scheduled for a hearing, a Deputy Commissioner will be assigned. This is the “judge” in the case.

Hearings can last between 30 minutes and several hours. However, the parties must let the Deputy Commissioner know if the hearing will take longer than scheduled.  The claimant and the and/or the claimant's attorney should be prepared to present evidence at the hearing. This typically means that witnesses have been interviewed and prepared to testify and that completed medical records are provided to the Deputy Commissioner.

In the hearing the claimant will offer evidence first, generally through testimonial evidence and then the employer and insurer will have an opportunity to do the same.  The Deputy Commissioner usually does not make a ruling at the time of the hearing. After the hearing, the Deputy Commissioner will write an Opinion deciding if the claimant is entitled to benefits.  This decision can take as little as a few days to receive and up to a few months.

If a hearing is scheduled and if the employee is seeking substantial benefits, it is advisable that the claimant seek a skilled Virginia Workers Compensation attorney.

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