This article originally appeared in the May 2020 issue of The Alabama Lawyer magazine, a publication of the Alabama State Bar. You can view the full issue here.
Explain the Process
Most clients have never been involved with the workers’ compensation process prior to the injury which brings them to your office. They are frequently experiencing a combination of any of the following: confusion about how the entire process works; anger at the employer about how they are being treated; uncertainty about the future and the ability to support their family; feelings of helplessness and lack of control over being in this situation to begin with; and fear over whether they will ever be the same person when this is all over.
I find it valuable to my client and to my relationship with my client to use our initial interview to explain the entire workers’ compensation process from beginning to end. This appears to provide a great degree of relief to the client.
Equally important, the client needs to be educated about the limitations of the Workers’ Compensation Act.
Explain the Limits of the Act
An important part of the initial discussion includes educating the client about the limits of the Workers’ Compensation Act. It helps to explain to them that this is a statutory remedy which will not provide the same relief that would be available if the identical injury had occurred in an automobile accident or some other general liability setting. Their expectations should be aligned with reality from the outset. There is nothing worse than at the end of a case trying to explain to a client why she should accept $20,000 when she has expectations of receiving $500,000.
Tell Them What to Expect Once the Case Begins
I inform the client that once we file the suit, they are now in a “waiting game,” that there is not a lot that can be done to finish the case until his doctor places him at maximum medical improvement – a term you should also explain to him.
During that interim period, I believe the lawyer’s role becomes that of a crisis manager. I receive calls from clients that their check has not arrived on time that the amount of their check has changed, that their medical treatment is not being authorized, that they need another treating physician, and any number of other, similar problems. Also involve the process of waiting for the client to get to maximum medical improvement.
How and When to Deal with Their Lawyer
The client should understand that there is no need for his attorney to call him every week just to check in. Rather, I instruct them to let me know immediately when a problem arises so I can deal with it immediately. I also tell them that I am relying on them to let me know when they are getting close to maximum medical improvement, when they are released to return to work, and those sorts of things.
Explain Best and Worst Case Scenarios
The attorney has to help the client begin with a realistic assessment of the range of potential outcomes. Since the workers’ compensation scheme is a limited statutory remedy, the attorney can discuss what range of compensation the client’s case could have. They should understand that it is impossible to really assess what their case should bring until things such as permanent impairment and work restrictions are known.
Even though this does not give the client an exact approximation of how much money he might get, it helps give him appreciation of the limitations of the act itself, and it lets the client know that the limitations of the act are something over which none of us have any control.
Settlement vs. Trial
I estimate that 80-85 percent of workers’ compensation claims are settled without having to go to trial. Most clients prefer settling for a number of reasons.
First, there is a tremendous sense of relief in having the matter behind them. It allows them to move on with their lives.
Second, even if they get less than they really want, a settlement allows them to keep a measure of self-determination as opposed to putting everything in the hands of a judge.
Third, a settlement can include a lump-sum payment. The trial court could not award a lump-sum payment, but if the parties can, agree to it in a settlement. And many clients want a lump sum because it allows them to pay bills, pay off a house, or do other things which they see as making a significant difference in their life.
By explaining all this to the client at the outset, the groundwork is then laid when it comes time to discuss settlement.
Preliminary Information Gathering
Determine Their Average Weekly Wage
It is crucial to determine your client’s correct average weekly wage. It determines the amount of weekly benefits the client will receive while she is off work recovering from the injury, as well as the ultimate determination of compensation due at the conclusion of the case.
My experience is that the average weekly wage is incorrectly calculated in easily 60-70 percent of the cases. Sometimes the employer simply reports an hourly rate of pay to the insurance carrier who then multiplies it by 40 to assign an average weekly wage. Other times, fringe benefits such as health and life insurance are omitted.
In my initial meeting with the client, I ask them to bring me as many check stubs as possible for the 52-week period before the date of the injury. I put those pay stubs in chronological order, list them all out for the 52-week period, including the time period covered by the check and the amount, and I add them up and divide by 52 to get the correct average weekly wage.
When I compare this to what amount the insurance company is paying my client, and with those check stubs in hand, the insurance company is hard pressed to disagree and will almost always adjust the average weekly wage accordingly–and they will generally make back payments.
Your Letter of Representation
When you are hired, you should immediately send the insurance adjustor a letter of representation. I ask the client to bring this to our very first meeting. The client can usually get this from letters sent to them, from check stubs for benefits, or from other claim-related paperwork that they have. The sooner the adjustor is informed of your involvement in the case, the better for all concerned.
Medical Records or Reports
The amount of medical information possessed by the client when they first come to see you varies widely.
The amount of medical information possessed by the client when they first come to see you varies widely. I have had clients who bring entire accordion files with records neatly marked and categorized for every doctor who has seen them. I have had clients who could not even remember the names of their doctor. Nevertheless, it is always beneficial to ask for this information.
The records help me to determine whether the claim has significant merit. For example, medical records that reveal a multi-level spinal fusion with instrumentation suggest one kind of case. Medical records that show the doctors can’t find any evidence of the client’s problems. which they find to be exaggerated and subjective, especially when that is coupled with many missed appointments, suggests a different kind of case.
Sometimes a client who will be extremely difficult to deal with has that same personality in dealing with everyone else. And sometimes the comments in the medical records will provide significant insight into a potential “problem client” whom you will wish you had never agreed to represent six months down the road.
Gather Whatever Records Your Client Has
I simply gather whatever medical records the client already has in her possession.
In my letter of representation to the insurance carrier, I always request copies of whatever medical records are already available. They usually either forward them to me or they write to tell me their feeds for copying them. In most cases, this is both quicker and less expensive than obtaining them directly from the doctors.
Don’t Waste Money with Multiple Records Requests
I try to avoid asking for medical records until my client is at maximum medical improvement. With rare exception, I do not need to know what the doctor is saying until the client has been placed at maximum medical improvement, and there is no need to pay for the same records twice.
My goal is to obtain one complete set of records per doctor and that the records include the opinion that the client is at maximum medical improvement, any permanent impairment rating, and any work restrictions which the doctor assigns. I can then determine whether a vocational evaluation (or something else) is needed to bring the case to a conclusion.
When I file a complaint, I attach interrogatories, requests for production of documents, and requests for admissions. The interrogatories obligate the employer to disclose their trial experts and the expected contents of their testimony. I ask for information regarding average weekly wage and also fringe benefits. I ask for information meant to discover any affirmative defenses which may be pleaded, such as pre-existing condition, lack of notice, or others.
Request for Production
This is how I get the employee’s personnel file which can reveal a wealth of information regarding wages, medical records, attendance, and any disciplinary action, all of which can be helpful in evaluating and prosecuting the case. As with interrogatories, I attempt to discover information regarding the use of any potential experts at trial so that I can know in advance what their testimony will be.
Request for Admissions
This request is to identify those issues which are going to be in dispute and to determine those on which we can agree. There is no sense in either side wasting time and effort in the litigation process on issues that are not really in dispute
I can only think of a couple of cases which submitted to the court using only medical records and testimony from the employee. Almost always, I depose the one or two treating physicians who have had the most involvement in the client’s care for these injuries.
I believe the depositions can provide great benefit to the case by allowing the doctor to elaborate on his opinions much more than he would do by only dictating his medical summaries. Likewise, if there are certain areas that I want to focus upon, I can explore those areas better by deposition. I ask the doctor during a deposition his opinion about the degree of disability, the degree to which pain plays a part in the patient’s ability to function and whether the patient is capable fo performing a given job which I know the employer is going to claim is available. Those avenues simply cannot be sufficiently explored without asking those questions in person.
However, I make a deliberate effort to keep the doctor’s deposition extremely short. The judges who try these cases are familiar with them and do not need a lot of the “jury hype.” In most cases, I have found that a doctor’s deposition will run 20 to 30 pages in length. I believe that if you start going too much beyond that the judge will lose interest in what is being said, and you will lose the impact you are trying to accomplish by taking the deposition in the first place.
I believe that being short, direct, and to the point will get you a whole lot farther than a long, drawn-out examination.
Why Use One at All?
The use of a vocational expert is probably one of the most hotly disputed topics in the area of workers’ compensation. I have had numerous conversations with judges, and some of them believe that vocational experts are absolutely of no benefit to the court, others almost expect to hear from them, and some judges are in between.
Often when I am asked by a trial judge why I am using one, my answer is that it is as much, if not more, for an appeal than for the trial court. I would certainly hope that my evidence, even without the vocational expert, would be sufficient to persuade the judge to rule in my favor.
On appeal the burden belongs to the non-prevailing party. A vocational expert’s testimony provides one more piece of evidence that I can point to in my appellate brief as justification for upholding the trial court on appeal. I believe that benefit alone is worth it.
On rare occasions, the doctor’s opinion is that the patient’s condition is serious enough that the patient cannot return to gainful employment. When that happens, I have been successful at trial without the use of a vocational expert.
I believe that most trial judges understand how rare such a strong medical opinion is and that they value it higher than the opinion of a hired vocational expert.
Typically, the client’s treating physician’s opinion is limited to an opinion regarding the client’s degree of permanent impairment and/or physical restrictions. It then becomes the role of the vocational expert to take those physical limitations and match them with the person’s qualifications to see whether they are capable of returning to gainful employment.
Live Testimony or Written Reports?
When they use a vocational expert, both sides usually present them though live trial testimony. However, I am not certain that this is truly needed in many cases.
As I stated above, trial courts are familiar with this area of law and do not need to be educated on the role a vocational expert serves. The trial court simply needs to know the bottom line: whether this person can work and to what degree the injury has caused an impact on his ability to earn.
Unfortunately, I think there is a reluctance to offer the vocational expert’s testimony through their report for fear that the other side will have their expert testify live at trial. One good way to handle this is for the parties to agree to the admission of a report of both experts as evidence.
However, for whatever reason, both sides end up using their experts live at trial more often than not.
Defense Vocational Experts
Typically, I do not depose the defendant’s vocational expert. Before trial, I am going to know who the expert is, and usually I have seen them in trial numerous times. I already know what their demeanor is, what their typical approach to cross-examination is, and how they will react to my questions.
When this happens, I normally don’t depose their expert; I generally get a copy of their report and cross-examine them from it.
The flip side of that coin is that when I know an expert, the expert knows me. When the expert already knows me, I believe there is some advantage to be gained by not deposing them so they will not know in advance what my approach is going to be on cross-examination in this case.
It is essential to have the client come in prior to trial to prepare them for it. I always make a copy of the plaintiff’s deposition and have it for them to take home and review. I make it clear that I do not want them to try to memorize it, but to simply re-read it to re-familiarize themselves with its contents since a year or more may have elapsed between their deposition and trial.
I have the client come in just one or two days before the trial so that the discussions we have will still be fresh in their mind.
I try to put the client at ease by telling them about the trial process from start to finish. I tell them when I will call them as a witness, I go over the questions I will ask, and I tell them what questions to expect on cross-examination. I do not go through a question-and-answer script.
One of my main objectives is to try to put them at ease as much as possible to reduce their stress before and during the trial
Trial courts greatly appreciate the parties stipulating to as much as possible before the trial begins. I have made it my practice to confer with opposing counsel prior to trial to discuss those areas upon which we can stipulate.
When the parties agree on stipulations, I prepare a pleading to present to the court at the beginning of trial.
Though it changes with every case, the parties can typically agree that both the plaintiff and the defendant were covered under the Workers’ Compensation Act, that the plaintiff sustained an on-the-job injury, that there was no proper notice to the employer after the injury, the average weekly wage, the number of weeks’ benefits that have already been paid, and the date on which the doctor placed the employee at maximum medical improvement.
At the conclusion of the trial, the trial court’s job is made significantly easier when the parties stipulate to things that are not in dispute in the first place.
Pre-Marked Exhibits and Exhibit List
Just like the list of stipulations, this is a time-saving measure which the courts greatly appreciate. I determine which exhibits I plan to offer into evidence. I then pre-mark them with exhibit stickers and prepare an exhibit list, identifying each exhibit. When we arrive for trial, I simply hand the court reporter the folder with all the exhibits and the list identifying them.
Order and Number of Witnesses
The order in which witnesses testify varies depending on the issues in dispute. I believe the court wants to hear from my client as soon as possible, and their testimony of the remaining witnesses into proper perspective.
If the only real issue being dispute is extent of the plaintiff’s disability, I call the vocational expert immediately following the plaintiff.
Following the expert’s testimony, I offer the medical records and depositions.
If there are other issues involving an affirmative defense which must be litigated, then those witnesses are generally called next.
Remember that the trial court hears these cases all the time, and it does not need to be overwhelmed with a parade of unnecessary live witnesses. Though you have to call as many witnesses as are necessary to prove the case, I prefer to call as few as possible–often only my client and the vocational expert. On other occasions, when necessary, I will call co-workers of the plaintiff or other witnesses who many have testimony to offer which is relevant to the issues at hand. I cannot recall a case I have tried which had more than four to five witnesses from the plaintiff’s side. Even with that, other than the plaintiff and the vocational expert, I believe that most of these fact witnesses can, and should, be on and off the witness stand in approximately 10 to 15 minutes.
Submission of Medical Records
Medical records can become extremely cumbersome when the plaintiff has received extensive medical treatment. A full copy of those records includes things the trial court has no need of and which do not help your case. Records which may be relevant to the medical community may not help your case.
I go through medical records and pull the documents which I believe will be helpful to the court. Surgical records can be in excess of 200 pages. I can often reduce this to five to 10 pages that may have any bearing on my case. Those will typically consist of the history and physical, operative reports; diagnostic studies (such as MRI, CT scans, etc.); and the discharge summary.
This allows me to make a targeted argument to the trial court, and by telling him which pages matter, I am certain that the judge will look at them.
I have seen a defense attorney introduce into evidence a banker’s box of records. How likely is it that a busy trial judge will go through all of that with more than a cursory glance?
I typically pick out the one or two most important treating physicians and depose them. When I offer their depositions at trial, I generally identify the pages which I believe are most relevant, make a separate copy of those pages with important parts highlighted, and present those to the court. This saves the court a lot of time, and courts seem to appreciate the effort.
I always ask the court for an opportunity to submit a brief after the trial. Many attorneys bring a brief to the trial and submit it immediately at the close of evidence. No trial goes exactly as expected, and submitting a brief after the trial allows me to tailor my brief to what happened.
I have found that most judges appreciate this and welcome the brief. And since the court general has to read medical records and depositions, the post-trial brief does not cause a delay.
I always try to get it to the court within a matter of days after the trial. And I always include a full and highlighted copy of all of the cases that I am relying on.