Virginia Workers’ Compensation Commission Expands “Meet and Confer” Rule
Virginia Workers’ Compensation Commission (“Commission”) Rule 1.13, as of January 4, 2024, requires a “reasonable effort” be made prior to filing any motion outside of an evidentiary hearing. Said motions must have a certification that a good faith attempt was made to resolve whatever issue requires the filing of a motion. The party against whom the motion is filed will always have three business days to respond, though in an emergency situation the Commission may schedule a telephone conference or proceed with the ruling.
Virginia Workers’ Compensation motions have historically had an inconsistent “meet and confer” rule. Late discovery, for instance, required a “reasonable attempt” to resolve issues regarding the late discovery prior to filing a motion to compel under rule under Rule 1.8(K). Other motions, such as motions to dismiss, did not require any attempted resolution prior to filing the motion. The Commission has changed this standard in their opinion in Barnes v. Sheetz Inc., Jurisdiction Claim No. VA00002095279.
In Barnes, a pro se claimant filed a claim for benefits without filing supporting evidence. Ten months later, the Employer filed a motion to dismiss under Commission Rule 1.3 due to the claimant’s failure to file any supporting evidence more than 90 days after filing her claim. The motion was denied by Deputy Commissioner Bruner due to a failure by the defendants to certify that they had met and conferred with Barnes to resolve the issue under Rule 1.13, which had recently been amended to require every motion before the Commission not made at a live hearing certify that “the movant has in good faith conferred or attempted to confer with the other affected parties in an effort to resolve the dispute without Commission action.”
The decision was affirmed by the full Commission on appeal. However, the Commission makes two interesting points in its affirmation. First, the Commission explicitly states that granting a motion to dismiss for failure to file supporting evidence is discretionary and not at odds with Rule 1.13. While there are no non-discretionary motions specifically mentioned in the Commission’s Rules, motions pertaining to questions of jurisdiction likely do not require a meet and confer obligation. Finally, the Commission notes that under the language of Rule 1.13, a party is merely required to attempt to confer with the opposing party prior to filing a motion.
In the case of a pro se claimant, a certified letter or verified email which the claimant ignores would certainly represent a good faith attempt to meet and confer. However, this interpretation of Rule 1.13 drastically limits opportunities to file motions to dismiss or strike key evidence from the record. The obligation to discuss, in good faith, the underlying issues meriting a motion to dismiss or a motion to strike requires discussing missing evidence or otherwise forgotten obligations with a claimant or their counsel. It allows the claimant time to remedy their mistakes, where previously their failure to, for instance, provide supporting medical evidence, as in Barnes, would be fatal to their claim. Essentially, motions can no longer be used as a surprise attack on a claimant.
We also can expect the effect of this new rule interpretation to be one-sided. Claimants do not file motions to dismiss, and their motions to strike are usually based in discovery disputes which always have had a meet and confer component. Motions to continue a hearing may be framed in such a way, and filed at so late an hour, that the urgency condition in not allowing defense counsel to respond can be met.
In short, the Commission has made it easier for claimants to survive their procedural mistakes, and counsel will need to confer with the claimant on virtually every issue requiring a motion.