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Employers Can Seek Termination of Workers’ Compensation Indemnity Benefits Through Employer’s Application for Hearing

July 13, 2020

An Employer's Application for Hearing allows an employer to suspend or terminate workers’ compensation benefits of an injured employee who is under an open indemnity award.  There are certain instances when an employer can request that workers’ compensation benefits be stopped.  

An employer may choose to file an Employer’s Application for Hearing and request that the injured worker’s compensation benefits be terminated if: 

  1. the worker refuses vocational rehabilitation efforts,
  2. the worker refuses to attend an appointment with his/her treating physician,
  3. the worker returns to his/her full duty job,
  4. the worker returns to light duty work,
  5. the treating physician releases the worker to his/her full duty job, or
  6. the treating physician certifies that the worker’s disability is not related to the worker’s workplace injury. 

Supporting Documents

It is very important for an employer to also submit documents that support the reasons why the employer requests the suspension or termination of compensation benefits.  The type of documented evidence that an employer could choose to submit with its Application for Hearing varies depending on the facts of each case.  Some examples include: 

  1. notes of a vocational case manager showcasing the worker’s non-cooperation,
  2. medical records showing a worker's absences at medical appointments,
  3. a worker's wage statements showing increased earnings post-injury,
  4. a note from the treating physician showing an order to return to full duty work, or
  5. a note showing the worker’s refusal to work in a light duty position within his/her physical restrictions. 

Application for Hearing Requirements

For the Employer’s Application for Hearing to be referred to the hearing docket, the technical requirements outlined in Rule 1-4(B) of the Rules of the Virginia Workers’ Compensation Commission must be met.  This means that the Application for Hearing must:

  1. be in writing,
  2. be under oath,
  3. state the grounds for relief, and
  4. state the date for which compensation was last paid. 

An employer must additionally note whether it wishes to suspend or terminate benefits, change the benefits from temporary total to temporary partial disability, or seek a credit. 

An employer must state the date through which the worker has been paid in accordance with Rule 1-4 (c).  This payment timing requirement is one of the most critical parts for an employer to navigate when submitting an Employer’s Application for Hearing.  Rule 1-4(c) outlines five instances that do not require an employer to pay the worker his/her current awarded rate through the date that the employer files its Employer’s Application.  Other than the five listed exceptions of Rule 1-4(c), the employer must pay the worker his/her currently awarded rate through the date that the employer files the Employer’s Application for Hearing.  The timing of this payment is a very important component of the Employer’s Application and must be afforded proper attention. 

Worker Response and Virginia Workers’ Compensation Commission Review Process

Under Rule 1-5, if an employer's Application for Hearing is technically acceptable, the worker has 15 days to present evidence in opposition to the employer's Application for Hearing.  After that 15 day period passes, the Virginia Workers’ Compensation Commission (the “Commission) determines whether the employer’s Application for Hearing will be accepted or rejected.  In order to be accepted and referred to the hearing docket, there must be probable cause for the relief requested by the employer.   Therefore, after an employer files its Application for Hearing, the Commission determines whether the probable cause standard has been met.   The Commission issues a ruling on the employer’s Application for Hearing and advises the parties whether the employer’s Application for Hearing is referred to the hearing docket or whether the Application for Hearing is rejected. 

Due to the detailed payment timing requirements and the importance of carefully selected evidence in support of an employer’s Application for Hearing, employers should seek the advice of counsel when navigating Applications for Hearing under Rule 1-4. 

Kerry Stolz is a Pender & Coward attorney focusing her practice on workers' compensation, insurance defense, and civil litigation.

 

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