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What Happens If Your Employer Appeals Your Winning Workers’ Comp Case? 

What happens if your employer appeals your winning workers’ comp case?

How does a case on appeal get decided when the judges cannot see or hear the witnesses? If an injured worker who needs back surgery wins at trial before the Virginia Workers Compensation Commission (VWC) and again on appeal before the Full Commission, how does the Court of Appeals and the Supreme Court figure out who is telling the truth?

An employer who argued that the employee’s testimony was inherently incredible lost on appeal because the court does not second-guess credibility determinations made by the commission. In other words, if you won on credibility, the Court of Appeals will usually affirm the VWC’s original decision.


In May 2017, the worker was employed as an “outside plant tech” for his employer. While pulling a cable, he felt an immediate pain in his back that radiated through his left leg into his foot. The injured worker went to INOVA Fairfax Hospital. He told the treating physicians that the pain on the left side of his back had begun the previous day and he had pain on the right side of his back in April 2016. The injured worker reported the accident to his supervisor after he left the hospital. Due to persistent pain, he returned to the hospital in May of 2017, and was hospitalized for 3 days before returning to work.

The disabled worker stopped working in September of 2017 on the advice of his doctor, who also recommended that he have back surgery. This injured employee sought an Award from the VWC for his injury “involving his lower back with left sided radiculopathy,” including authorization for back surgery.

The Deputy Commissioner (a Virginia workers comp trial judge) determined that the worker proved he had suffered “a compensable injury arising out of and in the course of his employment” and that the requested medical treatment and disability were “causally related to the work accident.” The employer’s defense lawyer requested a Review (an appeal) by the Full Commission, which affirmed the trial judge in a unanimous decision.

But that’s not the end of it!

Attorney Doug Landau with a Herndon police officer
Just like Virginia trial judges, Herndon police officers are specially trained to assess credibility. They look carefully at whether witnesses and parties are telling the truth.

The employer argued that the VWC was off the mark in awarding benefits to the injured worker. The employer’s lawyers contended that because its decision was based on its mistaken conclusion that the disabled employee was a credible witness. The employer argued that the disabled worker’s testimony was inherently incredible because his medical records contradicted his sworn testimony at trial that he told his treating doctors that his injury was work-related before his request for surgery was denied. The employer’s lawyers pointed to the worker’s medical records that did not mention a work-related injury, arguing that there was no causal link between his injury and his employment. Under Virginia law, just because a worker has an injury and needs surgery after working does not necessarily mean that they have a compensable claim. To win their case, the injured worker must show not only a work-related incident, but that there is a causal connection between the workplace injury and the disability from work and need for medical treatment.

However, the disabled worker explained at the Hearing that he relayed the details of the injury “based on what [the medical personnel] asked [him].” Both the Deputy Commissioner and the Full Commission accepted his explanation, deeming the worker credible.  The worker’s explanation did not stray so far from human experience as to suggest it was beyond belief. The fact that the employee’s medical records did not initially reflect that his injury had occurred while he was pulling cable in May of 2017, did “not necessarily render [his] testimony unworthy of belief.”

Additionally, the disabled employee identified the time, place and source of his injury to pulling cable in May of 2017, and he reported the injury to his supervisor the day after it occurred. At the Hearing before the VWC Deputy Commissioner, the employer specifically stated, “We are not asserting a notice defense.” In effect, the employer conceded that he was aware shortly after the accident occurred that the employee was injured while pulling cable. Because the employer did not contest notice of the worker’s injury it is disingenuous for the employer to argue that his injury was not work-related.

The Virginia Court of Appeals held that even though the employer attempted to impeach the disabled worker’s credibility with conflicting medical records, the Commission found his testimony credible. The VWC found that there are no grounds to overturn that decision on appeal. “We find that the Virginia Workers Compensation Commission properly awarded benefits to claimant after determining he experienced a compensable injury arising out of and in the course of his employment and that the requested medical treatment and disability were causally related to the work accident.” The unpublished 2019 case is Verizon Virginia Inc. v. Saliard.

Herndon Virginia workplace injury lawyer Doug Landau notes that if the trial judge and the judges of the Full Commission find you and your witnesses to be credible, and you win your workers comp claim, it is likely that you will keep your winning decision if the employer appeals the case. The trial judge is in the best place to assess whether witnesses are telling the truth, because he or she can see them, hear them and even ask them questions in their courtroom, under oath.

If you or someone you care about has been injured at work, and there are questions as to how best to proceed, please call us at (703)-796-9555 or contact us via e-mail here on our Abrams Landau law website.