Gerald G. Lutkenhaus Workers Compensation Law Blog on Lawyers.com

At present the insurer in a Virginia Workers Compensation proceeding has the right to suspend compensation payments and request a hearing. This is so even though previously the Commission had entered an award for compensation for the claimant. Benefits can be suspended until there is a hearing which can take months.

The insurer can file an Employer’s Application for a Hearing. The usual grounds are that the employee had returned to work, that the employee has been released to return to work by the treating physician, or that an independent medical examination (IME) indicates a reason to terminate the award. A senior claims examiner at the Commission will then decide if the Application constitutes "probable cause" for a hearing.

A problem for claimants has developed because the insurer it if it disagrees with the treatment plan or disability statements of the treating physician can have the treatment plan or disability statement "second guessed" by an IME doctor. If this doctor disagrees with the treating physician, then the senior claims examiner can find sufficient "probable cause" in the IME report and suspend compensation payments and refer the claim for a hearing. The problem for claimants is his compensation (which he depends upon to pay rent, utilities, food, etc.) is suspended until there is a hearing and a decision by a Deputy Commissioner on the Employer’s Application for a Hearing. This can take months. Reviewing the statistics of the Commission, Commissioner Diamond noted that in 2007 approximately 1,910 employer’s applications were filed but only 166 were rejected for lack of probable cause. In 2008 1,833 employer’s applications were filed and 168 were rejected for lack of probable cause. Thus, at present over 90% of claimants facing this situation have their compensation suspended before the hearing on the merits of the employers' claim.

In 1974, in Dillard v. Industrial Commission of Va., 416 U.S. 783, 94 S.Ct. 2028, 40 L. Ed. 540 there was an attack on the process of suspending compensation and litigating later. The claim was rejected by the US Supreme Court because the State of Virginia has an alternative procedure which allows a workers compensation award to be docketed and enforced in the state circuit courts under Virginia Code § 65.1-100 (now §65.2-710). Following Dillard the Virginia Commission amended its Rule 13 in 1981 to specifically provide for suspension of benefits and to provide a 15-day window for employees to present evidence in opposition to the employer’s application. The practice of unilateral suspension, however, continued up to the present.

Three claimants’ attorneys are now challenging this unilateral suspension practice by the Commission by docketing compensation awards in circuit court under Virginia Code §65.2-710. The Virginia Workers’ Compensation Commission is currently considering on review three cases all argued on the same day: September 28, 2009. The cases are: Hodnett v. Stanco Masonry, Inc., V.W.C. File No: 230-15-49, Terry v. Blue Ridge Services, V.W.C. File No: 227-93-77, and James Blankenship v. Philip Morris USA, Inc., V.W.C. File No: 223-40-25.

It is expected the final decision of the Virginia Workers’ Compensation Commission will be appealed to the Virginia Court of Appeals, the Virginia Supreme Court and perhaps the US Supreme Court.

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 to be formal legal advice nor the formation of a lawyer/client relationship.

Jerry Lutkenhaus has been a practitioner of Workers' Compensation law in the Richmond, VA area for over 35 years. He was given an "AV" rating by Martindale-Hubbell in 2003. Richmond Magazine has listed Mr. Lutkenhaus as one of the best lawyers in central Virginia. There is more information at www.virginiadisabilitylawyer.com or www.geraldlutkenhaus.com.