7.4 Hearings

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7.4 HEARINGS

7.401 Hearing Procedures.

A. In General. After a claim or Employer's Application for Hearing is filed, the Commission makes an effort to encourage and assist the parties in resolving the matter. This may include sending orders to the employer or insurer to determine if the claim is being accepted and if not, the reason

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for the denial. ²⁰² In some cases the matter may be referred to ADR. If it appears that the matter is not being resolved, the Commission will refer the case for a hearing. Such referral is the general procedure unless the party filing the claim requested that the matter not be placed on the hearing docket. However, section 65.2-702(A) provides that either party at any time may request that the case be scheduled for a hearing.

As discussed below, the Commission provides two types of hearings. Where testimony is not required, the case may be referred for a decision based on the record. Where the issue is more complex and requires testimony, an evidentiary hearing will be scheduled.

The Commission encourages parties to use the WebFile program for filing claims, applications, motions, medical reports, correspondence, and other documents. ²⁰³ This allows for a more timely receipt and response by both the Commission and the parties. Parties are strongly encouraged not to make duplicate filings of medical reports or other documents. When making filings, care should be given to properly categorize the type of document or correspondence from the options provided.

An employer who intends to rely on a willful misconduct defense pursuant to section 65.2-306 must file with the Commission and give the injured employee no less than 15 days' notice before the hearing of its intent and include a statement of the particular willful misconduct act relied upon. ²⁰⁴

An injured worker may seek an expedited hearing in cases where the employer has submitted an application for hearing and probable cause to suspend benefits is found, or any disputed claim that arises after initial compensability is established. Rule 2.1 addresses the procedures and requirements for expedited hearings.

B. Decision on the Record.

1. In General. "When it appears that there is no material fact in dispute as to any contested issue, the determination" of the case will

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proceed on the record. ²⁰⁵ "After each party has been given the opportunity to file a written statement of the evidence supporting a claim or defense, the Commission will enter a decision on the record." ²⁰⁶

2. Written Statements. When the Commission determines that a decision on the record is appropriate, the parties are given 20 days to submit written statements and evidence. Ten additional days are given to respond. For good cause shown, additional time may be allowed. Copies of all written statements and evidence must be furnished to the Commission and all parties. ²⁰⁷

3. Review. Pursuant to Rule 2.1(B), requests for review of a decision on the record proceed under section 65.2-705 of the Virginia Code and Rule 3. ²⁰⁸

7.402 Evidentiary Hearing. Virginia Code section 65.2-704(A) provides that the "Commission or any of its members or deputies shall hear the parties at issue, their representatives, and witnesses; shall decide the issues in a summary manner; and shall make an award or opinion carrying out the decision." Evidentiary hearings are usually conducted by a deputy commissioner but may on occasion be before a commissioner. ²⁰⁹ A commissioner who hears the case may not sit on review. ²¹⁰ The hearing is conducted as a judicial proceeding. ²¹¹ All witnesses testify under oath, and a record of the proceeding is made. The hearings are open to the public and upon request and approval of the Commission may be videorecorded for public broadcast at the expense of the requesting party and subject to the limitations and conditions applying to court proceedings in the Commonwealth. ²¹² The proceeding is less formal than other court proceedings. Except for rules the Commission promulgates, it is not bound by statutory or common law rules of pleading or

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evidence or by technical rules of practice. ²¹³ There are no opening and closing statements. Unless leave is given to submit a medical report or other document post-hearing, the record closes at the conclusion of the testimony. A written decision is issued as soon as is practical.

Each commissioner or deputy commissioner has wide discretion in conducting a hearing, including deciding which witnesses and evidence will be allowed. Therefore, counsel should make every effort before a hearing to determine the procedures preferred by the deputy commissioner or commissioner assigned to the case.

A. Expedited Hearings. An injured worker may request an expedited hearing when benefits have been suspended under Rule 1.4 or for any disputed claim arising from the initial compensability. A written request must be filed with the Clerk's office with a copy 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." ²¹⁴ Severe economic hardship is determined by the Commission on a case-by-case basis. Rule 2.3 sets forth what evidence the Commission will consider if the request is based on loss of income ²¹⁵ or is related to medical expenses. ²¹⁶ Rule 2.3 should be consulted for the procedure for determining whether the case qualifies for an expedited hearing, the process of an expedited hearing if granted, and the appeal process if denied.

B. Location of Hearings. The Act provides that the hearing must be held in the city or county where the accident occurred, in a contiguous city or county, or location designated by the Commission. ²¹⁷

C. Interpreters. Upon request to the office of the deputy commissioner to whose docket the case is assigned, arrangements can be made for an interpreter. The request should be made as soon as possible, but no later than 30 days before the hearing, to ensure that an interpreter can be

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engaged. When a timely request has not been made, a continuance of the case is at the discretion of the deputy commissioner. Any attorney requesting interpreter services should inquire of the witness as to the specific language in which testimony will be presented to ensure that an appropriate interpreter is present at the hearing. There is no charge for interpreter services. Parties may independently obtain and pay for an interpreter. The deputy commissioner has the discretion to allow voir dire if a question of qualification or neutrality is raised.

D. Extra Time. Commission Rule 2.2 provides that "[e]ach party shall be allowed 20 minutes in which to present evidence unless prior arrangement is made through the Commission to extend hearing time." In actuality, the Commission often schedules only 30 minutes for a hearing. Upon receipt of a hearing notice, an attorney should promptly notify the office of the deputy commissioner assigned the case if additional time is needed. The deputy's office should be notified if the case involves multiple witnesses, interpreters, vocational rehabilitation specialists, doctors, or private investigators as these will require additional hearing time. Failure to provide a timely request could result in waiting for a new hearing date, multiple hearings, or testimony being taken between other hearings.

E. Continuances. Commission Rule 2.2(A) provides that "the parties should be prepared to present evidence at the time and place scheduled for the hearing. A motion to continue will be granted only when it appears that material or irreparable harm may result if not granted." If a party determines that a continuance is necessary, the opposing party should be contacted to determine whether an agreement can be reached. Agreement of the parties is one factor that will be considered by a deputy commissioner in deciding whether to allow a continuance. Continuing a case is at the sole discretion of the deputy commissioner. Thus, counsel should know the deputy's policy on continuances and not assume a continuance will be granted.

F. Right to Present Evidence. While the Commission is not bound by rigid rules of practice and procedure, it must nevertheless protect the rights of the parties. In United States Gypsum Co. v. Searles, ²¹⁸ where the deputy commissioner granted an employer's motion to strike and the full Commission reversed the decision and awarded compensation without the

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employer's having put on evidence in its defense, the court held that the Commission had not protected the rights of the employer. ²¹⁹

G. Burden of Production. The party having the burden of proof has the right to open and close.

H. Witness Testimony. All witnesses and interpreters are sworn in at the commencement of the hearing. Examination of witnesses proceeds as in civil hearings. While generally the format is to ask questions, in some cases allowing narrative testimony may better provide the necessary information and speed the process. After direct examination, cross-examination follows. Unlike in other court proceedings, the deputy commissioner may also ask questions of the witnesses. Where the injured worker is pro se, the deputy commissioner will ask questions to assist in a fair adjudication of the case.

I. Hearsay Permitted. The Commission will take evidence at the hearing and inquire into the questions at issue to determine the substantial rights of the parties. ²²⁰ Rule 2.2(B) provides for admission of hearsay as follows:

Reports and records of physicians and reports of medical care directed by physicians may be admitted in evidence as testimony by physicians or medical care providers. Upon timely motion, any party has the right to crossexamine the source of the medical document offered for admission in evidence.

The Commission, over time and...