In a recent case, the Virginia Workers' Compensation Commission had to decide whether a late appeal by a claimant of an unsuccessful hearing decision should be allowed. In a very close case, the Deputy Commissioner had denied the claimant's claim on August 1, 2011. The claimant had 30 days to file for a review (appeal) pursuant to Virginia Code Section 65.2-705. The claimant mailed a request for review (appeal) to the Commission on August 29, 2011 prior to the expiration of the 30 day deadline. The Three Commissioners who handle reviews ruled this appeal was not timely since it did not reach the Commission until September 5, 2011 which was more than 30 days after the date of the decision.
The Three Commissioners ruled the appeal would have been timely if it had been filed by certified
mail by August 31, 2011 or if had been filed electronically by Webfile by August 31, 2011. However,
mailing by regular mail on August 29, 2011 meant it was not "filed" until September 5,
The claimant understood the Rule to mean an appeal had to be filed in 30 days of the denial of
the claim. In fact, the claimant thought he had complied with the Rule by mailing an appeal to the
Commission on August 29, 2011 which was prior to the expiration of the 30 day deadline. But the
claimant made a fatal error. He thought the act of "mailing" an appeal was the same as
"filing" an appeal.
Unfortunately, this is a case where ignorance of the law does not excuse the mistake in thinking
"mailing" an appeal is the same as "filing" an appeal. This also illustrates
Abraham Lincoln’s famous saying, "He who represents himself has a fool for an
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Jerry Lutkenhaus has been a practitioner of Virginia Workers Compensation law
in the Richmond, VA for over 35 years. He was given an "AV" rating by Martindale-Hubbell
in 2003. Richmond Magazine has listed Mr. Lutkenhaus as one of the best lawyers in central Virginia.
There is more information at www.virginiadisabilitylawyer.com or www.geraldlutkenhaus.com. In 2010 he was given
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