Virginia: Commission Errs in Refusing to Consider After-Acquired Medical Evidence

Where an employer made a proper facial showing that it could establish the requirements of Virginia’s after-acquired evidence rule, it was error for the state’s Workers’ Compensation Commission to refuse to hold an additional hearing to determine whether the employer’s newly-discovered medical records constituted the sort of evidence that would warrant modification of the Commission’s earlier decision. During discovery, the claimant, who claimed that she had sustained a work-related fall from a step ladder in January 2016, indicated that she had not previously suffered from injuries or pain similar to those asserted in her claim for benefits, except for a fall she took in 2010, from which she had completely recovered. And yet, some 11 days after an evidentiary hearing, the employer received medical records from an out-of-state provider indicating that claimant had sought treatment for lower back pain three weeks prior to her alleged work-related incident. The deputy commission declined to receive the newly-discovered medical evidence, finding that it was available and could have been obtained prior to the date the record was closed. The appellate court disagreed. Noting that both the nature and the origin of claimant’s injury were central to the case and that the medical records had been promptly requested, the Court said that without timely cooperation from the relevant medical office, the undisclosed medical records could not be considered “available and known” to the employer. Claimant had specifically denied having had similar issues in the past. The employer had no reason to believe any medical records would show otherwise.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis 

See Victoria’s Secret v. Mauldin, 2017 Va. App. LEXIS 169 (July 18, 2017)

See generally Larson’s Workers’ Compensation Law, § 131.05.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law