Before the Hearing

The Commission is committed to ensuring equal access to the hearing process for all parties. If you need an accommodation related to accessibility, please contact the Commission as early as possible so appropriate arrangements may be made. These requests are generally made in writing to the Deputy Commissioner. Please see the Notice of Hearing (hearing notice) for the assigned Deputy Commissioner’s contact information.

If sign language interpreters are needed, please see “Interpreters,” below.

Key Terms:

• Discovery:

  In a workers’ compensation claim, “discovery” is the pre-hearing process that allows each party to obtain information from the other. Rule 1.8 in the Rules of the Commission covers discovery.

• Depositions:

  The parties may schedule a deposition to ask questions in person about the facts of the case. Depositions are taken under oath and require a court reporter to be present to make a written record of everything everyone says. The party scheduling the deposition has to find and pay for a court reporter. Even if your deposition is taken, you will still have to appear at an evidentiary hearing unless the Deputy Commissioner specifically tells you otherwise.

• Interrogatories:

  Interrogatories are written questions. Either party can send them to the other party. Each party can send up to 20 Interrogatories.

• Requests for Admissions:

  Requests for Admission are written requests asking one party to admit or deny the truth of any fact or other material matter.

• Requests for Production of Documents:

  Requests for Production of Documents are specific requests asking one party to send specific documents or information to the other party. These can be documents, but can also be videos, pictures or other types of information that the other side may have. Either side may ask up to 30 Requests for Production of Documents.

Response Due Dates:

Responses to the discovery items above are generally due within 21 days. However, this time limit may be extended upon request to the party sending the discovery or with the Commission’s approval. The failure of a party to respond to discovery by the due date may result in the imposition of sanctions, including the exclusion of the party’s evidence or the dismissal of the pending claim.

When preparing for a hearing, please keep in mind:

• The hearing is the only opportunity to present evidence to the Deputy Commissioner.
• All supporting documents must be brought to the hearing.
• For virtual hearings, evidence must be filed at least 7 days before the hearing.

For injured workers claiming a work-related injury or occupational disease:

• You must provide medical evidence showing the injury or disease was caused by your job.
• Evidence may include letters, reports, and medical records from physicians.
• You must submit medical excuses for missed work and medical opinions linking lost wages to the injury.

Medical Records

• Physicians’ offices reserve the right to charge a nominal fee for copying records.
• If a doctor will not release records, the worker may request a subpoena from the Virginia Workers’ Compensation Commission.
• Subpoena requests must be mailed or hand-delivered to the Commission.
• There is a fee for each physician’s office to be subpoenaed.

Fees paid for subpoenas to be served:

VWC collects a $12 fee for each subpoena issued on behalf of the local sheriff’s office.

• A separate money order will be accepted for each subpoena to be issued
• The street address of the witness (no P.O. boxes) must be included, and must be in-state.
• Made payable to “Sheriff” of the locality in which the subpoena will be served.
• (Example: Made Payable to: Sheriff, Chesterfield County, VA)

Note: Another $12 fee will be required if the subpoena needs to be reissued.

Show Cause Hearings:

• Employers must provide evidence showing they have required workers’ compensation coverage in Virginia or are not required to have coverage.

Is an attorney needed?

• The Commission does not provide legal representation, legal guidance or advisory Opinions of what you should or should not do.
• The Virginia Workers Compensation Act does not require an injured worker to have an attorney. An injured worker may choose to have an attorney at the hearing if they feel that they would be at a disadvantage without one.
• The employer and insurance carrier are required to be represented by counsel in a claim for a work injury. In a Show Cause Hearing, an employer is not required, but has the right to hire an attorney.

Considering hiring an attorney?

• All attorneys’ fees for the injured worker are set and approved by the Commission.
• If an injured worker wins the case, the attorneys’ fees are deducted from the amount awarded to the injured worker.
• If an injured worker loses the case, they will pay directly to their attorney any fee and expenses awarded and approved by the Commission.
• All parties may choose to hire their own attorney to represent them.
  
  • Parties may contact the Virginia Lawyer Referral Service by phone (800-552-7977) or email (lawyerreferral@vsb.org) for assistance with selecting an attorney. There is a $35 fee, which includes 30 minutes with an attorney either by phone or in-person.

Does the Commission provide interpreters free of cost?

Yes. The Commission will provide interpreters at its expense when requested for non-English speaking parties and witnesses or those needing sign language interpreters in the evidentiary hearing setting.

May I bring a friend to interpret for me instead of using a court-appointed interpreter?

Yes. In lieu of a Commission-provided interpreter, parties independently may obtain and use the services of a qualified interpreter of their own choosing and at their own expense. Such interpreters need not be certified by the Supreme Court of Virginia, but must be competent to serve.

How do I ask for an interpreter?

Parties and counsel who desire a Commission-appointed interpreter should notify the office of the Deputy Commissioner to whom the case is assigned of the need, in writing, as soon as possible, at least 30 days prior to the scheduled hearing date. In your request, be sure to include what language the interpreter will need to speak.

What happens if a party questions the interpreter?

Commission-provided interpreters shall not be considered witnesses in the proceedings, but rather Commission contractors. It shall be within the Deputy Commissioner’s discretion whether to permit voir dire (examination by counsel) of any interpreter, whether or not provided by the Commission, in the event that a party questions the competence or neutrality of that interpreter. It shall likewise be within the Deputy Commissioner’s discretion whether to allow continuances of hearings where an interpreter is needed but not requested in sufficient time to allow one to be scheduled.

Workers' compensation hearings involve both parties presenting sworn testimony and evidence before a deputy commissioner (workers’ compensation judge) to resolve disputes. The injured worker testifies about the accident and injuries, while the employer may present witnesses to contest the claim. Both sides may cross-examine witnesses.

Injured Workers:

Be prepared to explain, under oath, all aspects of the claim, including:

• How the injury occurred
• When and to whom notice was given
• Exact dates lost from work due to the injury or illness
• Names of medical providers
• Earnings at the time of injury

You may bring witnesses to the hearing if you feel they are necessary. It will be up to the Deputy Commissioner to decide if called witnesses will be permitted to testify.

Employers:

Employers may need to have an attorney to represent the business, depending on how the business is set up. The employer is generally a business and a business cannot represent itself at a hearing. People who own or are employed by the business can testify on behalf of the business, but can represent the business only if they are an attorney. If an employer has workers’ compensation insurance, the insurance company will usually provide an attorney and the attorney will help them prepare their testimony in an injury or disease case. In an insurance coverage case, the employer should be prepared to testify about why they are not required to have workers’ compensation insurance. This can include things such as:

• Structure of the business
• Number of officers
• Number of employees
• Whether subcontractors are hired and, if so, how many employees the subcontractor has
• Whether independent contractors are hired and if so, how independent contractors are treated