WITNESS CREDIBILITY: To Defer or Not to Defer? (Part 1)

In my last post, I began a discussion on determining the credibility of witnesses. In doing so, I referred to findings made by the Deputy Commissioners (DC’s) and whether the full Commissioners felt obligated to adopt the credibility determinations made by the DC assigned to the case (known as deferring to the findings of the Deputy Commissioner.) It occurred to me that I was making the assumption that my readers were all familiar with the procedural path a typical workers’ compensation case follows. My hope is that these posts I write, primarily on legal topics and heavily oriented toward Workers’ Compensation topics (after all, I am, and have been a practicing lawyer for 40+ years, and my current practice is almost exclusively comp cases), will attract both legally trained readers and simply curious lay people who don’t have a pre-existing knowledge of the world of Workers’ Comp. For those folks, I’ll attempt to give you a brief outline of the procedural life of a “typical” comp case. For my colleagues at the Workers’ Compensation Bar, please don’t laugh out loud the next time our paths cross. As I often say about the practice of law in general, “If it was easy, anybody could do it.”

Most formal workers’ compensation cases begin the way most legal proceedings of any type start, with the filing of an initial pleading. From my perspective, representing claimants exclusively, that initial pleading is usually a Claim for Benefits (“CFB”). The CFB usually alleges that the claimant was injured on a certain date while engaged in conduct on behalf of the employer, and that the accident/incident which led to the claimant’s injuries arose out of and in the course of the claimant’s employment with the employer. As a result of the accident and the injury suffered as a consequence, the claimant alleges that he/she is entitled to certain benefits provided by the employer under the terms of the Workers’ Compensation Act, which generally consist of a claim for payment of medical expenses, a claim for reimbursement for time lost from work due to the claimant’s inability to work at all due to the injuries from the workplace accident, or for his/her income to be supplemented by the employer because the claimant is unable to perform all of his/her work duties due to the injury and, as a consequence, his/her post-accident income is less than his/her pre-accident income. Assuming that the employer denies responsibility for the Claimant’s accident and/or the injury, or that it is obligated to pay the claimant the benefits claimed, the matter is referred to the “contested docket” and assigned to one of the DC’s who hear cases in geographic regions around the state. The DC who gets the case assigned to him/her then schedules a date for an evidentiary hearing before the DC.

I often use the analogy of a “mini-trial” to describe the evidentiary hearing to my clients. The evidentiary hearings have both strong similarities to a general district court trial in Virginia as well as stark differences. In both forums, witnesses are placed under oath and present live testimony to the presiding officer (a General District Court Judge, wearing a judicial robe and addressed as “your honor,” or a Deputy Commissioner of the Virginia Workers’ Compensation Commission [VWCC], no robe, and addressed as “your honor,” “Deputy Commissioner, or Mr. ___ or Ms. ___, [but always with respect] depending on counsel’s preference.) Medical evidence is rarely taken in open session in either forum. There is a proceeding available for each venue by which the medical testimony can be presented via the written medical records used almost universally by attorneys practicing in either or both forums. Occasionally, doctors testify through a written transcript of a deposition, taken at another time and place more accessible for the doctor (and presumably less expensive for the lawyer taking the deposition.)

The key differences between the two (2) proceedings (for me anyway) is that the GDC permits counsel to make brief arguments in favor of their clients by way of opening statements and final argument. There are no arguments permitted at a WC hearing, although the DC can, and sometimes does, request that the parties submit written “position statements,” mini-briefs which allow counsel to suggest the law applicable to the issue(s) before the Commission as well as argue the application of the law to this specific set of facts. The biggest difference is that at the end of the taking of all the evidence, the judge in GDC will generally announce a verdict (although some judges prefer to “take the matter under advisement” which means that the judge wants more time to think about the issues and, perhaps, do some research on his/her own.) The DC never announces how he/she will hold at the end of the evidentiary hearing in comp cases. In the workers’ compensation scheme followed in Virginia, the DC’s are charged with not only examining the facts and determining which evidence they find more believable, but also researching the applicable law and rendering a written opinion on who prevailed on which issues and why. It is those written opinions which bring us to the issue I would like to discuss (although the journey was longer and more round- about then I anticipated.)

When the DC publishes the opinion resulting from the evidentiary hearing, the publication starts a 30-day time period running. If either side is disappointed by the DC’s written opinion, that party has the absolute right to request that the full Commission, consisting of three (3) Commissioners, review the DC’s opinion. This procedure is known as Request for Review (RFR). If neither party requests review, then at the end of the 30-day notice period, the DC’s written opinion becomes the law of the case. Likewise, any issues which are not identified by one or the other party as being submitted for review become the final as far as those issues are concerned.

I have rambled on longer than I intended, and my editor will be reminding me of my word limitations for these posts. Let’s stop here for now and pick up the description of the typical life of a workers’ compensation case with the Request for Review having been filed and the case now in the hands of the three (3) full Commissioners. There we will get to the crux of this issue which is how much deference should/do the Commissioners give to the fact-finding done by the Deputy Commissioners. Meanwhile, I hope you have found this quick synopsis of an evidentiary hearing in workers’ comp to be interesting. Next time I actually get to the point. (I promise.) Thanks for reading this post.

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