Virginia Law

A. At the request of either party, or at the commission's direction, contested issues not resolved informally through prehearing procedures or alternative dispute resolution will be referred for decision on the record or evidentiary hearing.

B. Decision on the record. When it appears that there is no material fact in dispute as to any contested issue, determination will proceed on the record. After each party has been given the opportunity to file a written statement of the evidence supporting a claim or defense, the commission shall enter a decision on the record.

1. Written statements. When the commission determines that decision on the record is appropriate, the applicant parties shall be given 15 days from the date of the order to submit written statements and evidence. The responding party shall be given an additional 15 days (30 days from the date of the order) to respond with a written statement and evidence in reply. For good cause shown additional time may be allowed. Copies of all written statements and evidence shall be filed to the commission and served on all parties.

2. Review. Request for review of decision on the record shall proceed under § 65.2-705 of the Code of Virginia and 16VAC30-50-40.

C. Evidentiary hearing. An evidentiary hearing by the commission shall be conducted as a judicial proceeding. All witnesses shall testify under oath, and a record of the proceeding shall be made. Except for rules that the commission promulgates, the commission is neither bound by statutory or common law rules of pleading or evidence nor by technical rules of practice.

The commission will take evidence at hearing and make inquiry into the questions at issue to determine the substantial rights of the parties, and to this end hearsay evidence may be received.

1. Continuances. The parties should be prepared to present evidence at the time and place scheduled for hearing. A motion to continue will be granted at the discretion of the commission on a showing of good cause.

2. Evidence.

a. Stipulations to agreed facts shall be included in the record. Each exhibit offered shall be marked and identified, and the record shall show whether it was admitted in evidence.

b. Reports and records, depositions of health care providers, and reports of medical care directed by physicians shall be admitted in evidence. Upon timely motion, any party has the right to cross-examine the source of a medical document offered for admission in evidence.

c. The parties, by the beginning of the hearing, shall specifically designate, with a chronological table of contents, by author, deponent, and date, medical reports or records to be received in evidence. Depositions will only be made part of the record pursuant to 16VAC30-50-20 H 7 The requirements of this provision may be modified or waived for pro se litigants.

D. Expedited hearing.

1. An employee may request an expedited hearing before the commission when the employer has submitted an application for hearing pursuant to 16VAC30-50-20 D and probable cause has been found to suspend benefits pending a hearing on the matter. An employee may also seek expedited determination of any disputed claim arising after the initial compensability of the accident has been determined by the commission.

2. Written request. An employee seeking an expedited hearing must file a written request with the clerk's office, and a copy of the request shall be sent to the employer. The request must include, by way of description, attachment or enclosure, evidence sufficient to find that, without an expedited proceeding to determine the merits of the dispute, the employee will be caused to suffer severe economic hardship. What constitutes severe economic hardship will be determined by the commission on a case-by-case basis. A copy of the employee's accepted request will be sent to the employer's counsel of record, the designated third-party administrator, and the carrier, along with a Notice of Request for Expedited Hearing.

3. Loss of income. When the employee alleges that the employee is not receiving compensation benefits and is unemployed, unable to work, or only partially employed because of an injury compensable under the Act, the employee must establish that failure to grant an expedited hearing will result in severe, immediate economic hardship. In this regard, the commission will consider, but is not limited in considering, the following evidence:

a. Whether, and to what extent, the employee is presently employed, and what other sources of income are available to support the employee;

b. Whether the employee has dependents for whom the employee's wages, salary, or other income were the sole or primary source of financial support;

c. Whether the employee has received notices of imminent or threatened foreclosure or eviction actions, or the employee is in a state of homelessness;

d. Whether the employee has received notices of imminent repossession of personal vehicles necessary for employment or medical treatment visits;

e. Whether the employee's financial difficulties were caused by the termination of workers' compensation benefits by prior adjudication, caused by other circumstances, or both; and

f. Any other evidence demonstrating that the employee's immediate ability to provide food, clothing and shelter will be threatened by failure to grant an expedited hearing.

Notwithstanding subdivisions 3 a through 3 f of this subsection, upon the employee's return to work with the employer at a wage less than the preinjury wage while on a current award for temporary total benefits if, within 20 days after said return, the employer has not either presented agreed forms for entry of an award for temporary partial benefits for same or paid an agreed amount voluntarily pending entry of an award, the employee may request an expedited hearing. Upon such request, there will be a presumption of entitlement to such a hearing when in fairness to both the employer and employee the hearing can be limited to that issue and the commission shall also promptly schedule a conference to discuss both a hearing date for same or whether the matter can be resolved without a hearing.

4. Medical expenses. When the employee seeks an expedited hearing, asserting that authorization of or payment for recommended medical treatment has been denied by the employer or insurer, the employee must establish that failure to grant an expedited hearing will result in severe economic hardship. In this regard, the commission will consider, but is not limited in considering the following evidence:

a. The general nature of the employee's injuries;

b. Whether, if authorization is being sought for recommended treatment not already obtained, the employee's physician has stated that the procedure must be performed on an emergent basis and failure to do so will threaten the employee's life or result in immediate and severe deterioration of the employee's physical or mental condition;

c. Whether, if payment or reimbursement for medical expenses already incurred is being sought, reasonable and necessary ongoing medical treatment will be withheld for failure to pay for prior medical treatment and that the withholding of such treatment will threaten the employee's life or result in immediate and severe deterioration of the employee's physical or mental condition;

d. The cost of the medical treatment in dispute and the employee's ability to pay for it; and

e. Any other evidence demonstrating that failure to grant an expedited hearing on this issue will result in severe economic hardship.

5. Employer response. Upon receipt of the commission's Notice of Request for Expedited Hearing, the employer shall have 14 days to investigate the basis for the employee's expedited hearing request. Prior to, or at the expiration of the 14th day, the employer shall file with the commission, by hand-delivery, electronic filing, or certified mail, a written statement indicating whether the employer will or will not agree to the employee's request for expedited hearing. If the employer will not agree to proceed on an expedited basis, it must state, with specificity, the basis for its inability to proceed pursuant to an expedited hearing schedule. Filing shall be effective upon receipt by the commission or its agent, or by placing the statement in certified mail.

6. Informal conference. Once the commission has received the employer's response statement, or 14 days pass without a filed response from the employer, the commission shall schedule, as expeditiously as possible, an informal conference with the parties, whether in person, by teleconference, or by other electronic transmission. With regard to expedited claims for payment of medical expenses pursuant to subdivision D 4 of this section, no informal conference will be scheduled until the employee submits medical evidence to the employer and the commission supporting both the underlying claim and the necessity of expedited proceedings. During the informal conference, the commission will discuss issues relevant to the granting or denial of an expedited hearing including discovery between the parties, the timing and scheduling of depositions, and the parties' ability to secure other relevant evidence in an expedited manner. The commission will discuss the issues raised by the claim and try to limit the scope of any matter ultimately referred to the expedited hearing docket by facilitating agreements between the parties. The commission will confer with the parties about scheduling a hearing date at the informal conference or by teleconference after the informal conference.

7. Granting or denial of expedited hearing. During the informal conference, or within seven days of its completion, the commission will determine whether the claim underlying the request for expedited hearing is appropriate for the expedited hearing docket. If the request for an expedited hearing is granted, the commission will advise the parties of this decision during the informal conference, or in writing within seven days. If the commission determines that the matter is not appropriate for the expedited docket, the parties will be advised of the commission's determination, and the matter will be referred for regular processing.

8. Scheduling and continuances. The matter will be set for a hearing no less than 10 days and no more than 28 days after the expedited hearing was granted. Ordinarily, once the matter is set down for an expedited hearing, neither party will be granted a continuance. A continuance will be granted only for good cause shown, involving exceptional circumstances beyond the control of the party or the party's attorney. Any claim pending on the expedited docket that is continued or nonsuited at the request of the employee will be removed from the expedited docket and shall not be reinstated for expedited proceedings.

9. Closing the record. The record shall close at the end of the expedited hearing unless, for good cause shown, one or both parties are unable to present necessary medical or factual evidence.

10. Decision. The deputy commissioner hearing the case will issue an opinion within 14 days after the record closes in an expedited hearing proceeding.

11. Expedited review. Either party may seek an expedited review of the decision to grant or deny an expedited hearing. Parties seeking expedited review must file a written request within seven days of the date of the decision to grant or deny an expedited hearing. The written request must include a statement explaining the grounds for review and must enclose all information the party believes is necessary for consideration of the request. A copy of the Request for Expedited Review shall be furnished to the opposing party. The commission shall provide notice of the request for expedited review within three days of its receipt. The opposing party shall have seven days from the date of the commission's notice to file a written statement addressing the merits of the review request and enclosing all information it believes is necessary for consideration on review. The commission shall review the decision to grant or deny an expedited hearing and will issue a decision by order within seven days.

12. Review after expedited hearing. Review of a deputy commissioner's decision following an expedited hearing shall proceed according to the provisions of 16VAC30-50-40 A. and § 65.2-705 of the Code of Virginia.

E. Video hearings.

1. Prefiling of exhibits and medical records designations mandatory.

a. Filing deadline. A copy of each party's medical designation, as well as all proposed exhibits, must be filed no later than seven days before the scheduled hearing. The medical records designation must be filed in accordance with the commission's July 1, 2013, Order Clarifying Commission Rules 2.2 B.3 and 4.2. A copy of this order may be found at http://www.workcomp.virginia.gov/documents/order-regarding-medical-records-and-designations. Any other proposed exhibits must be filed with a numerical table of contents, which must include title, author, and date. All proposed exhibits must be preceded by a separator page and numbered to identify the document following in accordance with the table of contents.

b. Objections. Objections to any item in the medical designation or to a proposed exhibit must be filed with the commission by any opposing party no later than four days prior to the scheduled hearing.

c. Late filings. Any medical record or exhibit submitted less than seven days before the hearing, other than a response to a record timely submitted under this order for which leave is granted to file a response, will be excluded from evidence or may serve as a basis for the continuance of the hearing, in the sole discretion of the deputy commissioner.

d. Copies required for witnesses. If a party anticipates questioning an adverse party or witness about a particular exhibit or medical record, identical electronic and paper copies of the exhibit must be sent by the questioning party to the adverse party or the witness so the party or witness may view the documents while testifying. No other written explanatory or instructive materials may accompany the documents. Failure to provide the witness with such copies will be grounds for excluding the anticipated testimony from the record. It is not considered an improper ex parte contact for a party to provide to the adverse party or witness a particular exhibit or medical record with an accompanying cover letter as long as no additional instructive or explanatory materials are provided. A copy of the cover letter must be filed with the commission. Alternatively, parties may agree which party will produce exhibits and medical records to an adverse party or witness. Under this provision, it is expected that parties will send exhibits and medical records to their own witnesses.

2. Oaths required. Witnesses will be sworn remotely and all witnesses must aver prior to their testimony that they shall not receive any undisclosed or other assistance from any source while testifying.

3. Witnesses. Parties must provide the commission with the name, telephone number, and, if possible, email address of all witnesses they expect to call to testify no less than seven days prior to the scheduled hearing. Further, parties who receive a Webex meeting invitation to the hearing from the commission must forward that invitation to any witnesses the parties expect to call to testify to allow for ease of connecting to the video hearing. Failure to do so may result in exclusion of witness testimony, at the discretion of the deputy commissioner. Continuances will not be granted solely because a witness fails to appear because the calling party failed to provide this information, subject to the discretion of the deputy commissioner. Nothing in this order shall preclude the parties from obtaining evidence by de bene esse deposition or as otherwise permitted by the commission.

4. Minimum technical requirements. Parties and witnesses attending the video hearing must participate remotely using a PC, laptop, tablet, or smartphone equipped with a video camera and microphone. All parties and witnesses should use up-to-date browsers and operating systems with a reliable high-speed internet connection, and participation in the hearing will be subject to such other technical requirements as are published from time to time. Parties and witnesses are strongly encouraged to test their systems as instructed in advance of the hearing date. Parties must notify the commission as soon as possible, and not less than 14 days prior to the hearing without good cause being shown, if they or any of their witnesses cannot meet the minimum requirements for participation in the video hearing, so that alternate arrangements for the participation of such attendees may be arranged. Deputy commissioners have broad discretion to continue or cancel the hearing if attendees cannot meet the minimum technical requirements for participants.

5. Recording prohibited. Parties and witnesses attending the video hearing may not record the hearing by any means except upon advance leave granted by the deputy commissioner. The commission's recording of the hearing will be the sole official record of the proceedings.

6. Proper decorum required. Parties and witnesses attending a video hearing are attending a formal judicial proceeding and must dress appropriately just as if personally appearing in court. All attendees must participate from a quiet location free of distractions. Deputy commissioners have broad discretion to continue or cancel hearings or exclude witnesses if noise or extraneous activity disrupts the proceedings and to impose contempt sanctions for inappropriate conduct where necessary.