A Virginia Lawyer's Guide to Social Security & Workers Compensation
Short Guides to Claims:
Workers' Compensation
Social Security
Feature Article:
Appealing a Workers Compensation Denial
For over 30 years I have been representing claimants before the Virginia Workers Compensation Commission. Often, I have been asked to review adverse decisions by the Commission for a possible appeal. More likely than not I have to decline representation. These are the reasons why:
The Claim for Benefits. When there is an injury at work, the claimant is required to file a Claim for Benefits with the Commission. The Commission will issue a 20 day Order to the insurance company requesting a response. If the claim is denied, it will be scheduled for a hearing before a hearing commissioner.
Evidence. The Commission issues an instruction requesting the claimant to file all of his/her evidence that supports the claim with the Commission. This usually means "all" medical evidence has to be filed with the Commission prior to the hearing.
Discovery. Each side is allowed under the Commission Rules to discover prior to the hearing everything that party wants to know about the other sides case. This is usually done by written questions called "interrogatories" and by "depositions." A deposition is testimony under oath in front of a court reporter prior to the actual hearing about the case. The deposition allows either side to know exactly what a witness will be testifying to before trial.
Medical Evidence. Most of the time doctors do not go to the hearing. The Commission allows medical evidence to be filed by written reports. If there still is a question about the medical evidence, either party can take a doctors deposition and file that deposition as the doctors evidence in the case. The main reason doctors do not go to the hearing is the expense.
Hearing. At the hearing no argument is allowed. The hearing is just for the purpose of submitting evidence. As indicated above, the medical evidence is submitted by written reports. The claimant and his witnesses testify under oath and the insurance company will have its witnesses testify under oath.
The Decision. The hearing commissioner will issue his/her decision in writing some time after the hearing based on the medical records and the testimony at the hearing.
Appeal. If either side disagrees with the decision, there is a right of appeal to have the hearing commissioners decision reviewed by three (3) commissioners. But on the appeal, no "new" evidence is allowed. The appeal only considers the evidence that was submitted to the hearing commissioner.
Standard for Review of Appeals. On appeal, there are some standards the Commission has adopted over the years. One critical standard is that the three (3) commissioners will almost never second-guess the hearing commissioner on credibility decisions. This is so because the hearing commissioner is the only one who actually hears "live testimony" and is able to consider the "demeanor" of the witnesses. Another critical standard is that the claimant has the "burden of proof." This means the claimant has to prove at least by a preponderance of the evidence (at least 51%) that he/she should win. If the evidence is not there or incomplete, the claimant loses.
My Review. Thus, if the claimant comes to me with an adverse decision based on credibility, I have to tell the claimant I decline representation due to the above Standard of Review. Also, if the claimant loses because the evidence is incomplete, I also have to decline representation because evidence cannot be added to the case on appeal.
Representation. The biggest mistake claimants make is to do the hearing themselves without experienced representation hoping to correct any errors by an appeal. As Abraham Lincoln once said, he who represents himself has a fool for an attorney. There is just no substitute for not obtaining representation when your claim has been denied and a hearing is necessary. This is my advice. After an insurance company denies the claim, call an experienced Workers Compensation Lawyer right away.
Copyright 2006, Gerald G. Lutkenhaus. ALL RIGHTS RESERVED
Other Article Links
Social Security Disability & Workers' Compensation: Can You Get Both in Virginia?
You are disabled by an on the job injury. You are on Workers' Compensation. You want to know if you can also get Social Security Disability. This article sheds light on this issue.
What To Do When You Suffer An Injury On The Job? by Jerry Lutkenhaus
An injury on the job is usually governed by the workers compensation rules in your state. You should have a working knowledge of these rules so that you can be properly compensated if you do suffer an injury on the job. In Virginia your employer is required to post a short summary of your rights in a conspicuous place.
5 Tips If You Are Fired After A Workers' Compensation Accident In Virginia
Even if you are "fired" by your employer after an accident on the job, you do have rights. You may have a remedy under wrongful discharge law and you may still be able to recover benefits under workers' compensation law.
Virginia Workers Compensation Denied: The Important Questions
In my 30 years of reviewing workers' compensation denials I have seen the same patterns again and again. If your claim has been denied, then these are the questions you should ask yourself.
Death in the Workplace, What Can Dependents Do? (A Virginia Lawyer's Perspective)
Death in the work place... What can the dependents do about this? What benefits can be expected? These are some answers from a Virginia Lawyer and some real life examples.
Partially Disabled: What Happens Next with My Virginia Workers' Comp Claim?
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An Accident at Work & A Failed Urine Test (A Virginia Lawyer's Perspective)
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SSI and Social Security Disability: How They are Different (Virginia Lawyer's Perspective)
[Legal] Don't be confused by SSI and Social Security Disability. There are major differences. These are the things you need to know.
Finding the Number One Social Security Disability Lawyer in Virginia
[Legal] There are thousands of lawyers in Virginia. How do you pick the best one for your disability case? These are my suggestions based on 30 years of experience.
10 Social Security Disability Mistakes to Avoid in Virginia
[Legal] Social Security Disability law can be complex. You have worked a long time and you now feel the government should pay you back what you have paid in. It is not that easy and these are ten (10) mistakes to avoid.
Heart Attack: Can I Get Social Security Disability in Virginia?
[Legal] You have had a heart attack or a serious heart operation such as a triple bypass. Can you now get Social Security Disability? This article will focus on the factors that are important in that assessment.
Work Place Injury in Virginia- Can You Sue Your Employer for Your Injury?
[Legal] For a work place injury in Virginia, you cannot sue your employer even if the employer's negligence caused your injury. The only exception to this rule is if the employer does not have workers' compensation insurance. This is often the case when the employer is a small contractor.
What To Do When You Suffer An Injury On The Job?
[Insurance:Workers-Compensation] An injury on the job is usually governed by the workers compensation rules in your state. You should have a working knowledge of these rules so that you can be properly compensated if you do suffer an injury on the job. In Virginia your employer is required to post a short summary of your rights in a conspicuous place.
Social Security Denied: Should I Appeal?
[Legal] Not every claimant should appeal a denial of his/her claim for Disability. Each case depends on the nature of the Impairment and other factors.
SSA Online - Your source for Social Security Information.
SSA Forms - Forms for your Social Security Case.
The Merck Manual of Diagnosis and Therapy - The classic medical reference.
Social Security Administration - Site for the Social Security Administration.
Dictionary of Occupational Titles - Listing of requirements of all jobs.
National Organization of Social Security Claimants' Representatives (NOSSCR) Disabilities Online---The Information Directory - Site for claims representatives.
Dominie's Fibromyalgia and Chronic Fatigue Syndrome Homepage - Site for fibromyalgia.
The Virginia Workers' Compensation Commission
LUPUS JIE ---Your online resource for Lupus Information
M.A.G.N.U.M--The National Migraine Association
Title: Headache Treatment Information
http://headachetreatmentinfo4u.com/
Description: Headaches can be caused by a variety of reasons. They can be simple chapter 7 and chapter 13 bankruptcy: resources & legal help
URL: http://www.accidents-direct.co.uk
Title: Accident Claims | No Win No Fee | Personal Injury Lawyers | Accidents Direct
Description: Accidents Direct have a leading team of UK Accident Claims Solicitors and Personal Injury Lawyers claiming 100% Compensation for clients under a No Win No Fee agreement.
