Avoid common mistakes during your workers’ comp deposition
Workers’ compensation is known for its quick turnaround time in litigated cases. From start to finish, the average denied workers’ compensation case takes approximately 6 to 12 months. This period of time may seem like forever to an individual who is in pain, not receiving medical treatment, and has no income coming in. However, in the world of litigation, this is extremely fast. It can take years for a personal injury claim to wind its way to court. Business litigation cases can take decades.
Due to how quickly workers’ comp cases tend to progress, injured workers in Georgia often benefit by obtaining experienced legal counsel from an experienced workers’ compensation lawyer during the entire process—particularly during the deposition.
What is a deposition?
Depositions are a chance for the insurance company and their attorney to ask the injured worker questions about their injury and their life. They can ask questions that are both related to and not related to the claim. While a deposition typically lasts 1-3 hours in a workers’ compensation case, the exact amount of time may vary based upon the complexity of the injury and the facts surrounding the incident.
Let us be crystal clear:
A deposition is NOT a chance for the injured worker to tell their side of the story. The injured worker will be able to present their evidence at the hearing through the questioning of their attorney. The injured worker cannot win their case at their deposition, but they can sink their case.
Pre-deposition: leading up to the workers’ compensation deposition
After a notice of a claim and a request for a hearing is filed with the State Board of Worker’ Compensation via a WC-14 form, the claim is assigned to an administrative law judge. That judge’s office then sends the notice of a hearing date to all the parties involved, including the injured worker, their attorney, the employer and the insurance company. The time and location of the hearing is included with the notice.
At this point in the process, the discovery phase begins. Workers’ compensation claims follow the same rules of discovery as any other type of civil litigation in Georgia. The Georgia Rules of Civil Procedure apply. This means that the parties can serve interrogatories, requests for production of documents, requests for admissions and notice depositions of important fact witnesses.
It’s common practice for the attorney of the employer and insurance carrier to send requests for production of documents and interrogatories prior to the deposition. The time limit to respond to this is 30 days. The questions asked generally pertain to the injured workers claim, and must be answered in writing. Not all questions are either relevant or discoverable, so it is best to consult with an attorney prior to responding to them.
Are depositions required in work injury cases?
If a case is in litigation, the attorney for the employer and insurance carrier typically wants to take the deposition of the injured worker to learn more information regarding the claim. However, not all claims involving injured workers require a deposition. If the case is not in litigation, the employer and their insurance company does not have a right to serve discovery or take the employer’s deposition.
For example, if the injured worker is receiving medical treatment and the authorized treating physician takes the injured worker out of work, benefits have to be commenced. Unless the insurance company denies the claim, the change in ability to work doesn’t provide the insurance company an opportunity to take the deposition of the injured worker.
Furthermore, if the insurance carrier wants to settle the case and requests a mediation, they are not entitled to a deposition.
Insights from our law firm
In a workers’ compensation case that’s being litigated, the attorney for the insurance company usually takes the deposition of the injured worker. It’s their chance to obtain background information on the injured worker and to explore issues regarding the accident, the injury and the injured worker’s current condition. It’s not a chance for the injured worker to tell their side of the story. If the question is not asked, there’s no need to offer the information.
Many times, clients insist on getting their version of the events out there, even if it’s not relevant to the case. For some reason, even the shyest of people develop ‘diarrhea of the mouth.’ This cannot help your case and can only hurt you. If you really feel the need to say something, tell your attorney in private and let them be the judge.
What’s the purpose of a workers’ comp deposition?
First, one of the goals of the insurance carrier during a deposition is to gather information about the injured worker. They want to know if there were any prior injuries, what their job history was, and other background details. If the injured worker starts to talk about all the issues they had with their employer, instead of just answering the questions, they are providing details to the insurance company that they may not have known, or had any reason to know.
Second, many insurance company attorneys take hundreds of depositions a year. They come prepared with an outline that is generic to all workers’ compensation cases, and not specific to your case. Their goal is to get through all of the questions so they can cover their behind when the insurance company reviews the transcript. The less they dig, the better off the injured worker is at the subsequent hearing because they can frame facts and issues as they choose. Attempting to win your case at the deposition by going into minute detail, when not asked to do so, doesn’t help you win. Rather, it arms the insurance company with more information.
5 workers’ compensation deposition tips
Tip #1: Answer the question that was asked (and nothing more)
The first piece of advice we give clients is to only answer the question that is asked. In fact, it’s beneficial to pause for a second before answering the question and repeating the question in your head. This forces the injured worker to only answer the question that was actually asked, and not the one they either thought they heard — or more dangerously, wanted to hear.
For example, let’s say the question by the opposing attorney representing the insurance carrier is: “Were you hurt on the job?” The answer to that question is simply yes. Your answer should NOT include a full description of the accident, all the witnesses or what the injured worker believes was the cause of their accident. Why should that information not be included in the answer? Quite simply, because it wasn’t asked.
Tip #2: It’s okay to not know the answer to a question
Another piece of advice we give clients is that you don’t have to know the answer to every question. It’s okay to say “I do not know” if you really don’t. Don’t try and guess the answer to a question. Your job in the deposition is to tell the truth and be honest, not to please the attorney from the insurance company.
Sometimes questions are asked that an injured worker either doesn’t know the answer to or has forgotten, and therefore they cannot provide an honest answer. However, don’t abuse this power by answering every question with “I don’t know” because it can come off as deceitful and evasive, especially if the question is something as benign as, “What’s your name?”
Tip #3: Keep your temper in check
A third item tip is to avoid getting angry during the deposition. Anger can lead to irrational and harmful decisions when it comes to answering questions. As stated above, you cannot win your case during a deposition and anger can cause people to lose sight of that.
Occasionally, attorneys for the insurance company attack the injured worker during the deposition and try to get them angry for this exact purpose. Other times, facts surrounding the injury are upsetting to the injured worker. Either way, take a moment to compose yourself if you are getting upset. In a deposition, anger can be harmful to the case.
Tip #4: Don’t try to be clever or outwit the other side
Fourth, don’t be ‘cute’ during your deposition. In other words, don’t think that you are outsmarting the opposing attorney by only half truthfully answering a question. A simple and truthful answer is always the best answer.
If you have an issue with a question, ask to speak with your attorney. If you don’t understand a question, ask the opposing attorney to repeat it. Half-truths and fabrications are very transparent and can only hurt your case.
Tip #5: Be open with your attorney
The final piece of advice is to not surprise your attorney at the deposition. Be upfront and honest with them about the facts of your claim prior to the deposition. If there’s an issue you’re concerned about, be sure to share it with their attorney prior to the deposition.
As we tell all our clients:Your attorney can only handle a situation that they are aware of. They cannot deal with information or facts that they don’t know about.
Get professional representation during your workers’ comp deposition
Remember to be patient during the deposition and if you need to stand up or use the facilities, just ask. Depositions aren’t intended to be torturous sessions of endurance that cause physical pain. Depositions are part of the discovery investigation of a claim.
If you have any questions about a deposition or any other aspect of your workers’ compensation case, don’t hesitate to contact the experience Athens work injury attorneys at Gerber & Holder.CONTACT US TO SCHEDULE YOUR FREE CONSULTATION