Virginia: Dismissal of Employee’s Claim Without Prejudice Was Within Commission’s Discretion

The dismissal of an employee’s claim against the employer without prejudice was within the range of reasonable choices allowed the Virginia Workers’ Compensation Commission pursuant to Va. Code Ann. § 65.2–201 and Va. Workers’ Comp. Comm’n R. 1.12 where the employee’s failure to comply with the Commission’s discovery orders and failure to appear at a hearing fell short of the deliberate abuse of process necessary to justify a dismissal with prejudice. The appellate court indicated the Commission’s decision would only be reversed where there had been an abuse of discretion. Conscientious jurists could reach different conclusions based on exactly the same facts, yet remain reasonable. The court added that dismissal with prejudice was a drastic punishment and should not be lightly invoked.

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 Republic Servs. of Va., LLC v. Candio, 2015 Va. App. LEXIS 300 (Oct. 27, 2015)

See generally Larson’s Workers’ Compensation Law, § 124.01 

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

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