jervalaw

Can I Appeal my Virginia Workers Compensation Denial?



Posted: Wednesday, October 26, 2005

by
Law Office of Jerry Lutkenhaus

You have a work place accident on the job in Virginia. You are injured and you incur medical expenses. You submit your claim to your employer's insurance company and your claim is denied. You wonder if you can appeal this comp denial. This is the information you will need.

First, if you have a serious injury and you incur medical expenses, you do not have to accept the denial by the insurance company. You can file a Claim for Benefits with the Virginia Workers' Compensation Commission (877)664-2566. If you do not file a Claim for Benefits with the Commission within two years of the date of your accident, your Claim will be lost.

Second, if at all possible, you should find out from the insurance company why your claim was denied. It may be something you can correct. For example, many insurance companies will deny a claim if the worker did not report it right away. You may be able to get someone at the Employer to acknowledge it was reported right away. Under the Rules, a claim can be lost if it is not reported to the Employer within 30 days of the date of the accident. But as a practical matter many insurers will deny the injury if it is not reported within 24 hours.

Third, a claim will be denied if it is non specific. For example, reporting that you injured your back lifting a 50 pound widget is a specific report of injury. Reporting you injured your back while lifting widgets all day long is probably going to result in a denial of your claim.

Fourth, insurers are very skeptical of slip and fall injuries. Current Virginia case law says the worker must relate the fall to some defect or cause in the work environment such as water on the floor or risk denial of his/her claim. Thus, if you are very specific in your report, your claim will probably not be denied.

Fifth, the worker fails to give the doctor the history of the accident so it does not appear in his medical report or the doctor fails to put it in the medical report. Sometimes, this can be corrected by a follow up meeting with the doctor to correct the report.

Sixth, the worker has a serious pre existing injury or disease. The doctor's medical report does not specifically say how the injury aggravated the pre existing injury or disease. Perhaps, again, this can be corrected with a follow up visit to the doctor and a corrected report.

The above is a non exhaustive list of reasons why your claim could be denied. As indicated the next step after your insurer denies the claim is to file a claim for benefits with the Commission but what if the Commission also denies the claim. Should you appeal your Virginia Workers Compensation denial by the Commission.

First, the worker should never gave gone to the hearing without an experienced workers' compensation attorney. See my prior article How to Choose the Best Virginia Workers Compensation Lawyer.  The most important tip I can give is make sure the attorney has been rated "AV" by Martindale-Hubbell, which is the highest rating that organization gives lawyers.

Second, the hearing before the Deputy Commissioner at the Commission is the most important part of your claim. The chief thing to know is the record closes with the hearing which means no additional evidence can be added by either side to clear up any misunderstandings. Thus, "all the evidence" must be submitted at the hearing.

Third, if the hearing centers around the credibility of witnesses, the worker should know the Commission on an appeal will defer almost all the time to the credibility findings made by the Deputy Commissioner.

Fourth, after an unfavorable decision by the Deputy Commissioner, the worker has 20 days after receipt of this decision to appeal to the Full Commission of Three Commissioners for a review of that decision. You should sit down with your attorney and discuss with him/her the possibilities of winning such an appeal.

In summary, you can "appeal the denial of your Virginia Workers' Compensation Denial" by filing a Claim for Benefits with the Virginia Workers' Compensation Commission. If your claim is denied by the Deputy Commissioner at the Commission, you can appeal to the Full Commission.

Copyright© 2006, Gerald G. Lutkenhaus. ALL RIGHTS RESERVED

These are my suggestions based on 30 years in the field. This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed as legal advice.

For more detailed information visit http://www.virginiadisabilitylawyer.com or reach us at http://www.geraldlutkenhaus.com Gerald G. Lutkenhaus has been representing Workers Compensation claimants for 30 years in the Central Richmond Area in Virginia. He was given Martindale Hubbell's highest rating of AV in 2003. In the July 1999 issue of Richmond Magazine he was also recognized as the One of the Best Workers' Compensation Attorneys in Central Virginia. You can call Jerry Lutkenhaus at 804-358-4766 for a free consultation on your appeal.



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Top-level comments on this article: (1 total)
» left by George Gregory
 5 years 241 days ago.
This is a good overview of one's appeal rights when you are denied worker's compensation.
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