Administrative Code

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Virginia Administrative Code
Title 16. Labor And Employment
Agency 30. Virginia Workers' Compensation Commission
Chapter 50. Rules of the Virginia Workers' Compensation Commission

16VAC30-50-20. Rule 1. Prehearing Procedures.

A. Employee's original claim for benefits. An employee's original claim for benefits shall be filed within the applicable statutes of limitation. An original claim for benefits shall be in writing, signed, and should set forth the following:

1. Employee's name and address;

2. Employer's name and address;

3. Date of accident or date of communication of occupational disease;

4. Nature of injury or occupational disease;

5. Benefits sought: temporary total, temporary partial, permanent total, permanent partial, or medical benefits; and

6. Periods of disability, if appropriate.

B. Employee's claim on the ground of change in condition or other relief.

1. A change in condition claim must be in writing and state the change in condition relied upon, should include all elements for a claim as set forth in subsection A of this section, and should include the jurisdiction claim number or sufficient information to identify the claims.

2. Additional compensation may not be awarded more than 90 days before the filing of the claim with the commission. Requests for cost of living supplements are not subject to this limitation.

C. Dismissal upon failure to file supporting evidence. If supporting evidence is not filed within 90 days after an employee's claim is filed, it may be dismissed upon motion of the employer after notice by the commission to the parties.

D. Employer's application for hearing.

1. An employer's application for hearing shall be in writing and shall state the grounds and the relief sought. At the time the application is filed with the commission, a copy of the application and supporting documentation shall be sent to the employee and a copy to the employee's attorney, if represented.

2. Each change in condition application filed by an employer under § 65.2-708 of the Code of Virginia shall:

a. Be in writing;

b. Be under oath;

c. State the grounds for relief; and

d. State the date for which compensation was last paid.

3. Compensation shall be paid through the date the application was filed, unless:

a. The application alleges the employee returned to work, in which case payment shall be made to the date of the return.

b. The application alleges a refusal of selective employment or medical attention or examination, in which case payment shall be made to the date of the refusal or 14 days before filing, whichever is later.

c. The application alleges a failure to cooperate with vocational rehabilitation, in which case payment must be made through the date the application is filed.

d. An employer files successive applications, in which case compensation shall be paid through the date required by the first application. If the first application is rejected, payment shall be made through the date required by the second application.

e. The same application asserts multiple allegations, in which case payment is determined by the allegation that allows the earliest termination date.

4. An employer may file a change in condition application while an award is suspended.

5. No change in condition application under § 65.2-708 of the Code of Virginia shall be accepted unless filed within two years from the date compensation was last paid pursuant to an award.

6. A change in condition application may be accepted and docketed when payment of compensation continues.

E. Acceptance or rejection of claim or application.

1. After receipt, the commission shall review the claim or application for compliance with the Workers' Compensation Act (§ 65.2 of the Code of Virginia) and this chapter.

2. The commission may order the employer to advise whether the employee's claim is accepted or to provide reasons for denial.

a. Response to the order shall be considered a required report pursuant to § 65.2-902 of the Code of Virginia.

b. The employer's response to this order shall not be considered part of the hearing record.

3. The opposing party shall be permitted up to 15 days from the date the application was filed to present evidence in opposition to the application.

a. If rejected, the commission shall inform the parties of the reason for rejection, and compensation shall be reinstated immediately.

b. If accepted, the commission shall inform the parties of the reason for the acceptance, and the application shall be referred:

(1) For alternative dispute resolution,

(2) For decision on the record, or

(3) For an evidentiary hearing.

F. Review of decision accepting or rejecting claim or application.

1. A request for review of a decision accepting or rejecting a change in condition claim or application shall be filed within 20 days from date of the decision. No oral argument is permitted.

2. The letter requesting a review should specify each determination of fact and law to which exception is taken. A copy of the request shall be sent to the opposing party.

3. The opposing party shall have 10 days from the date the review request is filed to provide a written response to the commission.

4. Only information contained in the file at the time of the original decision along with the review request and any response from the opposing party will be considered. Additional evidence will not be accepted.

5. If rejection of a claim or application is affirmed on review, the penalty and interest provisions of §§ 65.2-524 and 65.2-707 of the Code of Virginia shall apply from the date the application was initially rejected.

G. Compromise settlement; lump sum payment.

1. A proposed compromise settlement shall be submitted to the commission in the form of a petition setting forth:

a. The matters in controversy;

b. The proposed terms of settlement;

c. The total of medical and indemnity payments made to date of submission and the date through which all medical expenses will be paid;

d. The proposed method of payment;

e. Such other facts as will enable the commission to determine if approval serves the best interests of the claimant or the dependents; and

f. A statement on the claimant's Medicare status.

2. The petition shall be signed by the claimant and, if represented, an attorney and by the other parties or their attorneys. An endorsing attorney must be licensed to practice in Virginia.

3. The petition shall be accompanied by:

a. A medical report or record stating the claimant's current condition and whether the injuries have stabilized;

b. An informational letter from the claimant or counsel stating whether the claimant is competent to manage the proceeds of the settlement and describing the plan for managing the proceeds;

c. An affidavit sworn under penalty of perjury attesting the claimant's understanding of and voluntary compliance with the terms of the settlement; and

d. A fee statement endorsed by the claimant and the claimant's attorney.

4. If the employee or the dependents are represented by counsel, the claimant's informational letter shall set forth in detail the facts relied upon to show that the best interests of the employee or the dependents will be served thereby.

a. If the employee or the dependents are not represented by counsel, the commission shall promulgate a form titled "Informational Letter" that must be submitted in order for the commission to make its determination as to whether the best interests of the employee or dependents will be served thereby.

b. If the proposed settlement contemplates an annuity, the petition shall state that the company issuing the annuity is authorized by the State Corporation Commission to transact the business of insurance in the Commonwealth and that, in case of default, the employer or carrier shall remain responsible for payment.

5. The parties shall submit a proposed petition and order, properly endorsed.

H. Discovery.

1. Scope and method. The scope of discovery shall extend only to matters that are relevant to issues pending before the commission and that are not privileged. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may be obtained by oral or written deposition, interrogatories to parties, production of documents or things, requests for admission, inspection of premises, or other means of inquiry approved by the commission.

2. Limiting discovery. The commission may limit the frequency or extent of discovery if it is unreasonably cumulative, duplicative, or expensive or if the request was not timely made. The commission will consider the nature and importance of the contested issues, limitations on the parties' resources, and whether the information may be obtained more conveniently and economically from another source.

3. Stipulation to discovery. Except as specifically provided by this chapter, the parties may by written stipulation agree to other methods of discovery or provide that depositions may be taken before any person, at any time or place, upon any notice and in any manner, and when so taken may be used like other depositions.

4. Supplementation of responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement a response to include information thereafter acquired unless the responding party learns that any such response is in some material respect incomplete or incorrect and if the additional or corrected information has not been otherwise timely made known to the other parties during the discovery process or in writing.

5. Protective order. Upon good cause shown, the commission may enter an order limiting discovery to protect a party, a witness, or other person from embarrassment, oppression, or undue burden or expense.

6. Subpoenas. Subpoenas may be issued by the commission or by an attorney licensed to practice in the Commonwealth of Virginia. Unrepresented workers or employers must request subpoenas through the commission.

a. Subpoenas issued by the commission. A party requesting a subpoena for witness or subpoena duces tecum shall prepare the subpoena and submit it to the commission for certification. A check or money order for service fee payable to the appropriate sheriff's office shall accompany the request. The commission shall forward the subpoena and service fee to the designated sheriff's office, unless requested to do otherwise.

b. Subpoenas issued by a Virginia attorney. A subpoena may be issued by an active licensed member of the Virginia State Bar as an officer of the court. An attorney-issued subpoena must be signed as a pleading and contain the attorney's address, telephone number, and Virginia State Bar identification number.

c. Subpoenas for witnesses. Subpoenas should be filed at least 10 days prior to hearing or deposition, unless good cause is shown.

d. Subpoenas duces tecum. Requests to the commission for subpoenas duces tecum shall be filed with sufficient time for response for a hearing and the subpoena shall describe with particularity the materiality of the documents or articles to be produced. All such subpoenas are returnable 14 days following service of process.

e. Service. All requests for subpoenas duces tecum shall be served on each counsel of record, or the unrepresented party, by delivering or mailing a copy to each on or before the day of filing with the clerk or issuance by the attorney. Returns from service shall be filed with the commission, which shall have appended either acceptance of service or a certificate that copies were served in accordance with the law, showing the date of delivery or mailing.

f. Objection to subpoenas. Any party or the person to whom the subpoena is directed may serve on the party issuing the subpoena a written objection setting forth any grounds upon which such production or appearance should not be had. If an objection is made, the party issuing the subpoena shall not be entitled to the request for production except pursuant to an order of the commission in which the case is pending. If an objection is made, the party issuing the subpoena may, upon notice to the person to whom the subpoena is directed, move for an order to compel the production. The commission may quash, modify, or sustain the subpoena.

7. Depositions. After a claim or application has been filed, any party may take the testimony of any person, including a party, by deposition upon oral examination or upon written questions.

The attendance of witnesses may be compelled by subpoena. Depositions shall be taken in accordance with the requirements and limitations of the Rules of the Supreme Court of Virginia governing actions at law unless the parties stipulate to discovery as set forth in subdivision H 3 of this section, supra.

For good cause shown the deposition of an attending panel physician may be ordered to be taken at the expense of the employer if the physician has not prepared and completed an Attending Physician's Report on the commission's prescribed form or has not otherwise prepared written reports that are sufficient to answer questions concerning injury, diagnosis, causation, disability, and other matters not stipulated and deemed by the commission to be material to a claim or to a defense. The expenses of such depositions are subject to the approval of the commission

All depositions of medical providers, if transcribed, shall be filed with the commission. Depositions of other parties and witnesses shall not be filed with the commission or be made a part of the record, except upon motion of a party for good cause shown or as ordered by the commission.

8. Interrogatories and requests for production of documents to parties. After a claim or application has been filed, or an award entered, interrogatories and requests for production of documents limited to contested issues may be served by one party on another party, more than 21 days before hearing without prior commission approval, or at any other time on motion to the commission for good cause shown.

Answers under oath to each interrogatory and responses to document requests are to be served within 21 days after service, unless otherwise agreed by the parties. Objections must be included with answers. If the party serving the interrogatories or requests for production of documents agrees to extend the period within which to file answers under oath, the filing of objections is likewise extended until the new date the answers are due. If there is objection to an interrogatory or document request and the party serving the interrogatory or document request moves the commission for relief, a deputy commissioner shall enter an order resolving the issue, after giving the parties an opportunity to state their positions in writing.

No party shall serve upon any other party, at one time or cumulatively, more than 20 interrogatories and 30 requests for production of documents, including all parts and subparts, without leave of the commission for good cause shown. Leave shall be timely requested in writing. Relevant interrogatories should be served promptly upon commencement of a contested claim.

Objections by any party to the propounding of more than 20 interrogatories or 30 requests for production of documents, without leave of the commission for good cause shown, shall be filed with the answers to the interrogatories and document requests, at which time the deputy commissioner shall enter an order resolving the issue, after giving the parties an opportunity to state their position in writing. Interrogatories or answers shall not be filed with the commission unless they are the subject of a motion.

9. Request for admission. After a claim or application has been filed or an award entered, a party may serve upon any other party a written request for the admission of the truth of any material matter.

Each request must be numbered and set forth separately. Copies of documents shall be served with the request unless they have been furnished or made available for inspection and copying.

An admission under this subsection may be used only for providing evidence in the proceeding for which the request was made and shall not have force or effect with respect to any other claim or proceeding. An admission or denial must be offered in evidence to be made part of the record. A party is required to respond within 21 days or be subject to compliance under subdivision H 11 of this section or sanctions under subsection L of this section.

10. Production of wage information. If a claim seeking indemnity is filed, the employer shall timely file a fully completed wage chart on the form prescribed by the commission, showing all wages earned by an employee in its employment for the term of employment, not to exceed one year before the date of injury.

If an employee has earned wages in more than one employment, the employee shall have responsibility for filing information concerning wages earned in an employment other than the one in which claim for injury is made.

11. Failure to make discovery; to produce documentary evidence; to comply with request for admission. Following a reasonable attempt to resolve a discovery dispute by the parties or their counsel, a party, upon reasonable notice to other parties and all persons affected thereby, may request an order compelling discovery as follows:

a. A timely request in writing in the form of a motion to compel discovery may be made to the commission or to such regional office of the commission where an application is assigned to be heard.

b. Failure of a deponent to appear or to testify, failure of a party on whom interrogatories have been served to answer, failure of a party or other person to respond to a subpoena for production of documents or other materials, or failure to respond to a request for admission shall be the basis for an order addressing a request to compel compliance or for sanctions, or both.

I. Alternative dispute resolution. At the request of either party, or at the commission's direction, contested claims and applications for hearing will be evaluated and may be referred for alternative dispute resolution. When it appears that a claim may be resolved by alternative dispute resolution, the commission will refer the case to the Alternative Dispute Resolution Department, which may schedule the parties for personal appearance or telephone conference. The commission will attempt to identify disputed issues and to bring about resolution through agreement. Parties need not be represented by counsel. If agreement is reached it shall be reduced to writing and shall be binding.

Examples of limited issues often subject to prompt resolution are:

1. Average weekly wage;

2. Closed periods of disability;

3. Change in treating physician;

4. Contested medical issues including bills;

5. Permanent disability ratings;

6. Return to work;

7. Failure to report incarceration, change in address, or return to work; or

8. Attorney fee disputes.

If there is no agreement between the parties and there is no material fact in dispute, issues may be referred for decision on the record. If it is determined that material issues of fact are in dispute or that oral testimony will be required, the case will be referred to the docket for evidentiary hearing.

J. Willful misconduct. If the employer intends to rely upon a defense under § 65.2-306 of the Code of Virginia, it shall give to the employee and file with the commission no less than 15 days prior to the hearing, a notice of its intent to make such defense together with a statement of the particular act relied upon as showing willful misconduct.

K. Prehearing statement. The commission may require a prehearing statement by the parties as to the particulars of a claim and the grounds of defense.

L. Enforcement of the Act and this chapter; sanctions. In addition to the statutory authority of the commission to levy fines, to assess attorney fees and punish contempt, the commission may enforce this chapter and the provisions of the Workers' Compensation Act upon motion of a party, or upon its own motion, after giving a party or other interested person the opportunity to be heard, by imposition of the following sanctions:

1. Rejection of a pleading including all or part of a claim or application or grounds of defense;

2. Exclusion of evidence from the record; or

3. Dismissal of a claim or application.

M. Motions practice. No motion outside of a live evidentiary hearing shall be filed with the commission for any purpose unless the moving party or the moving party's counsel has made a reasonable effort to confer and resolve the matter with the opposing party. Any motion filed shall be accompanied by a certification that the movant has in good faith conferred or attempted to confer with the other affected parties in an effort to resolve the dispute without commission action. Such motion shall be in writing and the commission shall give the opposing side three business days to respond before ruling on the motion, except for those motions to compel initial discovery responses, or, unless on the face of the motion, it appears that exigent or emergency circumstances call for an earlier decision. In such exigent circumstances, the commission may make a good faith effort to schedule a telephone conference to hear from both sides before ruling, or may proceed with the ruling.

Statutory Authority

§ 65.2-201 of the Code of Virginia.

Historical Notes

Derived from VR405-01-06, Rule 1, eff. January 1, 1994; amended Virginia Register Volume 40, Issue 7, eff. January 4, 2024.

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