In a previous post I discussed in general fashion the concept of the burden of proof in our Anglo-American judicial system. I set out the three traditional burdens of proof: beyond a reasonable doubt, the criminal standard; by the preponderance (the greater weight) of the evidence, the usual civil standard; and an intermediate standard, by clear and convincing evidence, which is used in certain civil cases in which either the courts or the legislature felt that a more rigorous burden of proof was appropriate. Now, I would like to take a look at how the burden of proof is allocated in comp cases and the effects of assigning the burden to one party or the other.
Starting with the basics, for a claimant to prove an injury by accident, the evidence must show “(1) an identifiable accident; (2) that occurs at some reasonably definite time; (3) an obvious sudden mechanical or structural change in the body; and (4) a causal connection between the incident and bodily change.”
evidence which satisfies each of the elements of the claim. The failure to offer at least preliminary evidence of any one of these critical elements can result in a dismissal of the claim because the claimant has not “carried” its burden. The opposing side is not required to put on any evidence unless and until the claimant has introduced some evidence in support of the elements of a valid claim.
Once a claimant has established that he/she has a claim, the Code requires the employer to furnish, free of cost to the claimant, a physician and such other necessary medical treatment for so long as is necessary to treat the claimant’s injuries, potentially for the remainder of the claimant’s life. However, the claimant has still not escaped the task of “carrying” the burden of proof. “The claimant has the burden to prove that the medical attention, for which payment is claimed …, was causally related to the industrial accident.”
supra at 214-15, 648 S.E.2d at 326.
Should either party feel that the circumstances of the injury or the treatment have changed since the Commission entered an award, that party may file an application for review of the award due to the change. “In an application for review of an award on the ground of a change in condition, the burden is on the party alleging such change to prove his allegations by a preponderance of the evidence.”
43 Va. App. 731, 601 S.E.2d 687 (2004).
When a claimant applies for an award for the loss of use of a particular body part, “the claimant must establish that he has achieved maximum medical improvement and that his functional loss of capacity be quantified or rated.” The Commission requires a specific incapacity rating before disability benefits may be awarded. “Proof of the functional loss of the member, not industrial incapacity is required for an award of benefits ….”
23 Va. App. 404, 406, 477 S.E.2d 746, 747-48 (1996). The claimant cannot be awarded damages for loss of use of the named body parts where he has not met his burden of proving a sufficient loss of use to qualify for permanent and total disability.
This has been a brief look at how the burden of proof is distributed throughout the workers’ compensation scheme. Keep in mind that in comp, as well as most civil law, the burden of proof is usually assigned to the party who has the task of persuading the tribunal. Consequently, where the tribunal recognizes affirmative defenses, the defendant has the burden of proof for the facts of that defense. Unless the party to whom the burden is given makes a preliminary showing of proof to support the facts of whatever the party is trying to establish, the opposing party has no duty to introduce evidence in contradiction of the opposing side. That party has every right to “put the opponent to its burden.”