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What the Virginia Workers' Compensation Commission Does

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By: Jerry Lutkenhaus

If you suffer a workplace injury in Virginia, as an injured worker you will be subject to the jurisdiction of the Virginia Workers’ Compensation Commission for your comp claim.

1. You cannot sue your employer. Instead your sole remedy is to file a claim with the Commission within two (2) years of the accident date. This is true provided your employer has workers’ compensation insurance. If he does not, then you may have an option of suing your employer. HELPFUL HINT: You should consult an experienced worker’s compensation attorney about this possible option.

2. If your employer has regularly in service more then two employees, then he is required to have workers’ compensation insurance. HELPFUL HINT: Even if the employer does not have insurance when you are injured, you may still be able to recover your lost wages and medical bills from the Uninsured Fund. This Fund is a protection for workers who are the victims of an uninsured employer.

3. After being notified of an accident by the employee, the employer is required to file an Accident Report with the Commission. A failure to do so can subject the employer to a fine. However, the employer has no duty to do this if the employee fails to notify the employer of the accident. The employee is required to notify the employer of an accident within 30 days of the accident. HELPFUL HINT: An employee should always notify the employer immediately after an accident or he will face the risk that the accident will be denied.

4. The filing of the accident report by the employer will cause the Commission to send an informational pamphlet to the injured employee. HELPFUL HINT: If you never receive the informational pamphlet, this may mean the employer violated the law by not properly reporting your accident to the Commission. Nonetheless, you should still file a claim with the Commission.

5. If the insurer accepts the claim by the employee, then the insurer will normally send the injured employee an Agreement to Pay form to sign. Once the employee signs and returns this form the claims adjuster for the employer the insurer will file this Agreement with the Commission and the Commission will issue an Award stating the weekly compensation to be paid and stating the employee has lifetime medical benefits for the injury. HELPFUL HINT: If you have signed the Agreement to Pay but you never receive the Award from the Commission, then you need to check with the Commission to find out why an Award was never entered.

6. If the insurer fails to provide the employee with an Agreement to Pay form, then the employee is required to file a Claim for Benefits form with the Commission. This can be obtained by calling 1-877-664-2566. If the employee fails to file a Claim for Benefits form with the Commission within two (2) years of his date of an accident or within two (2) years of the communication to him of an occupational disease, his claim would be barred by the statute of limitations. HELPFUL HINT: On both the Agreement to Pay form and the Claim for Benefits form, it is crucial to list “all” injuries suffered in the accident.

7. The Commission maintains an Ombudsman Office. This is a “troubleshooting” division. They can also be reached at the above number and can resolve some conflicts between the employee and the insurer. HELPFUL HINT: Although the Ombudsman cannot be an “advocate” for the employee they can certainly help with delays in getting checks, payments of medical bills, etc.

8. If the employee files a Claim for Benefits and if it is not accepted, then the Commission will schedule an evidentiary hearing before a Deputy Commissioner who will conduct a hearing. The insurer will be represented by an attorney. HELPFUL HINT: They will have an attorney so the injured employee should also retain an attorney.

9. There are Rules of Discovery that apply to the Commission hearings regarding interrogatories, depositions, requests for admissions, independent medical examinations, etc. Therefore, it is next too impossible for a layperson to navigate through this litigation. HELPFUL HINT: The discovery rules by themselves illustrate why the employee needs an experienced workers' compensation attorney.

10. After hearing the evidence, the Deputy Commissioner will render a decision awarding compensation or denying compensation. From that decision, either side has 20 days from receipt of that decision to appeal to the Full Commission where the Deputy Commissioner’s decision will be reviewed by Three Commissioners. HELPFUL HINT: If you have erred and represented yourself at the hearing, then you still should retain an attorney for the appeal.

11. The review by the Three Commissioners is normally on the record. This means the Three Commissioners just review the record of the hearing and the written argument made by each side. It usually takes six (6) to eight (8) months for the Three Commissioners to issue a decision. It is next to impossible to add "new evidence" at this stage of the proceeding and that is why the evidentiary hearing before the Deputy Commissioner is so important. HELPFUL HINT: Because the appeal process takes a long time, you should make sure you ask your attorney if you should be filing other claims while the appeal is pending or doing something else to help your case.

12. After a decision by the Full Commission, there is a right of appeal to the Virginia Court of Appeals which must be filed within 30 days of receipt of the decision of the Full Commission. HELPFUL HINT: It is going to be next to impossible to obtain an attorney at this stage of the proceeding if you have lost your claim before the Full Commission; therefore, it is essential to obtain an attorney prior to the first hearing.

In summary, the Virginia Workers’ Compensation Commission is a neutral quasi judicial agency for resolving disputes between employers and employees regarding workers’ compensation claims. It is not allowed to take sides. Delays, misunderstandings, mistakes, etc. can sometimes be effectively addressed by using the Ombudsman’s Office of the Commission. But if you have a “serious” injury and a “significant” claim, there is really no excuse for not obtaining an experienced workers’ compensation attorney to represent you. As a wise man once said, “he who represents himself has a fool for an attorney.”

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.

Gerald G. Lutkenhaus has been representing claimants in Virginia for over 30 years. In the July 1999 issue of Richmond Magazine he was rated one of the Best Workers' Compensation Lawyers in Central Virginia. In 2003 he received the "AV" rating from Martindale-Hubbell, its highest rating for lawyers. In 2005 he was selected for the Bar Register of Preeminent Lawyers. You can get more information from http://www.virginiadisabilitylawyer.com or http://www.geraldlutkenhaus.com or call Jerry Lutkenhaus at 804-358-4766 for a free consultation.

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