Whitt & Del Bueno, Attorneys at Law

Leaders in defending workers' compensation claims.

Articles

Appealing To Your Senses

By Mike Del Bueno

Litigated workers’ compensation cases in Virginia are initially heard by a deputy Commissioner. The deputy Commissioner then issues a written opinion that decides the case and the issues in controversy. What appeal rights do you have if the deputy Commissioner does not rule in your favor?

You have an automatic right to appeal to what is called the “full” Commission within twenty days of receipt of the deputy Commissioner’s opinion. You must make sure in your appeal, or “request for review”, to specify each and every issue that you want the full Commission to decide. Failure to specify an issue in your request for review can mean that issue is waived and it will not be decided by the full Commission.

The full Commission is currently made up of a panel of three individuals – Chairman Diamond, Commissioner Tarr, and Commissioner Dudley. After considering all factual and legal issues, as well as the briefs, or “written statements on review”, that are filed by the parties and set forth arguments and applicable case law, the full Commission issues its own written opinion that affirms or reverses, either in whole or in part, the deputy Commissioner’s opinion.

If you disagree with the full Commission’s opinion, you have an automatic right of appeal to the Virginia Court of Appeals within thirty days of receipt of the full Commission’s opinion. Like the request for review to the full Commission, you must make sure to specify in this appeal each and every issue that you want the Court of Appeals to decide, or else risk waiving an issue not raised before the Court. There are also specific rules detailed by the Rules of the Supreme Court of Virginia that you must make sure to follow at this appellate stage, or else risk possibly having your appeal dismissed.

Unlike the full Commission, the Court of Appeals cannot reverse any factual finding made previously in your case unless it is not supported by any credible evidence, which is a tough burden to overcome. However, the Court of Appeals can review and decide any legal issue brought before it. Beware – the difference between a factual issue and a legal issue can be subtle!

After considering appellate briefs filed by the parties, and after possibly hearing oral argument on the issues involved, the Court of Appeals issues a written opinion that affirms or reverses, either in whole or in part, the full Commission’s opinion. What can you do at this stage if unsatisfied with the Court of Appeals’ opinion?

You can attempt to appeal your case to the Supreme Court of Virginia. However, an appeal at this stage is no longer a matter of right. Rather, you must petition the Supreme Court to take your case. The Supreme Court declines to hear many cases that are petitioned for appeal – it generally only takes cases that stand to have significant legal precedent or impact.

If the Supreme Court declines to take your case, then you have essentially exhausted all measures of appeal. If the Supreme Court takes your case, then additional briefs and oral argument, like at the Court of Appeals, will follow. Again, like at the Court of Appeals, specific rules detailed by the Rules of the Supreme Court of Virginia must be followed at this stage to ensure “perfection” of your appeal. Once the Supreme Court has considered all evidence before it, it will issue a written opinion that decides your case once and for all.

Appealing cases at any stage can be tricky, and there are traps for the unwary. Whitt and Del Bueno have the knowledge and experience at all appellate levels in Virginia to help you with your workers’ compensation case. Give us a call to help you through the appeal process and ensure that you stand the best chance of prevailing.