Section 20. Rule 1. Prehearing Procedures

1. Employee's original claim for benefits. An employee's original claim for benefits shall be filed within the applicable statutes of limitation.

A. 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;

6. Periods of disability, if appropriate.

B. An original claim will not be docketed until medical evidence to support the claim is filed.

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

A. A change in condition claim must be in writing and state the change in condition relied upon. A copy of the claim should be sent to the employer.

B. 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. A claim for change in condition will not be docketed until medical evidence is filed to support the change in condition.

D. Any other claim shall specify the relief sought and will not be docketed until supporting evidence is received.

3. 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.

4. Employer's application for hearing.

A. 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.

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

1. Be in writing;

2. Be under oath;

3. State the grounds for relief; and

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

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

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

2. 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.

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

4. 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.

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

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

E. 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.

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

5. Acceptance or rejection of claim or application.

A. After receipt, the commission shall review the claim or application for compliance with the Workers' Compensation Act and Rules of the Commission.

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

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

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

C. If the employer's application is technically acceptable, 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.

1. Pending acceptance or rejection of the application, the employer may suspend or modify compensation payments as of the date for which compensation was last paid.

2. If rejected, the commission shall advise the employer of the reason for rejection and compensation shall be reinstated immediately.

3. If accepted, the application shall be referred:

a. For dispute resolution,

b. For decision on the record, or

c. For an evidentiary hearing.

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

A. 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.

B. 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.

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

D. 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.

E. 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.

7. Compromise settlement; lump sum payment.

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

1. The matters in controversy;

2. The proposed terms of settlement;

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

4. The proposed method of payment;

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

B. 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.

C. The petition shall be accompanied by:

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

2. 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;

3. A notarized affidavit attesting the claimant's understanding of and voluntary compliance with the terms of the settlement; and

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

D. If the proposed settlement contemplates payment in a lump sum, the petition 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.

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.

E. The parties shall submit an original proposed order, properly endorsed.

F. Payment shall be due within 10 days after entry of the order approving the compromise.

8. Discovery.

A. Scope and method. The scope of discovery shall extend only to matters which are relevant to issues pending before the commission and which are not privileged. It is not grounds 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.

B. Limiting discovery. The commission may limit the frequency or extent of discovery if it is unreasonably cumulative, duplicative, 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.

C. Stipulation to discovery. Except as specifically provided by these rules, 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.

D. 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 such information materially affects a prior response.

E. 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.

F. Subpoenas. A party requesting a subpoena for witness or subpoena duces tecum shall prepare the subpoena and submit it to the commission for insertion of return date and clerk 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.

Subpoenaed records may be made returnable to the requesting party or, at the direction of the commission, to the clerk of the commission or to a regional office. If subpoenaed records contain medical reports they shall be filed with the commission pursuant to Rule 4.2.

Requests for subpoenas may be filed with the commission at Richmond or in the regional office assigned to hear the case.

1. Subpoenas for witnesses. Requests should be filed at least 10 days prior to hearing.

2. Subpoenas duces tecum. Requests should be filed at least 15 days before hearing and the subpoena shall describe with particularity the materiality of the documents or articles to be produced.

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. Each request 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.

G. 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. The deposition of a party or physician may be taken without permission of the commission. Leave of the commission shall be obtained to take the deposition of any other persons. 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 Rule 1.8 (C), 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 (Form 6) or has not otherwise prepared written reports which 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.

Depositions shall be filed with the commission and be made a part of the record.

H. Interrogatories to parties. After a claim or application has been filed, interrogatories limited to contested issues may be served by one party on another party, more than 21 days before hearing without prior commission approval.

Answers under oath to each interrogatory are to be filed within 21 days after service. Objections must be included with answers. If there is objection to an interrogatory and the party serving the interrogatory moves the commission for relief, the hearing officer 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 15 interrogatories, 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.

It is not necessary to file interrogatories or answers with the commission unless they are the subject of a motion.

I. Request for admission. After a claim or application has been filed, 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 rule 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 30 days or be subject to compliance under Rule 1.8 (K) or sanctions under Rule 1.12.

J. Production of wage information. If the average weekly wage is contested, the employer shall timely file a wage chart 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.

K. Failure to make discovery; to produce documentary evidence; to comply with request for admission. A party, upon reasonable notice to other parties and all persons affected thereby, may request an order compelling discovery as follows:

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.

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.

L. Disposition of discovery material. Any discovery material not admitted in evidence and filed in the commission may be destroyed by the clerk of the commission after one year from entry of a final decision of the commission or appellate court.

9. Informal 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 informal dispute resolution. When it appears that a claim may be resolved by informal dispute resolution, the commission will refer the case to a commission representative who 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:

A. Average weekly wage;

B. Closed periods of disability;

C. Change in treating physician;

D. Contested medical issues including bills;

E. Permanent disability ratings;

F. Return to work;

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

H. 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.

10. Willful misconduct. If the employer intends to rely upon a defense under § 65.2-306 of the Act, 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.

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

12. Enforcement of the Act and Rules of the Commission; sanctions. In addition to the statutory authority of the commission to levy fines, to assess attorney fees and punish contempt, the commission may enforce its rules 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:

A. Rejection of a pleading including, but not limited to, all or part of a claim and grounds of defense;

B. Exclusion of evidence from the record;

C. Dismissal of a claim or application.

Historical Notes

Derived from VR405-01-06, Rule 1, eff. January 1, 1994.

Statutory Authority

§ 65.2-210 of the Code of Virginia.