|
What happens at a workers compensation trial?
 
Do not worry, your attorney will meet with you before the trial and prepare with
you so that you know the type of questions that will be asked and can practice
answering them. This article is some background information to answer the common
general questions about workers' compensation trials.
There are several differences between the trial of a workers' compensation case
and the trials that you see on television. A workers' compensation case is tried
only by a workers' compensation judge. There is no jury. The trial takes place
in a rather small hearing room. There is no audience or gallery. The other big
difference is that in a workers' compensation case if we do not finish the trial
on the day it begins, it will not be continued over until the next day. The
trial will be continued to another day three or four months later. And then if
the trial is still not finished, it will be continued another three or four
months. It can sometimes take years to try a workers' compensation case.
On the other hand, most workers' compensation trial last only a few minutes to a
few hours. If the defendants admit that your injury occurred and that you hurt
your back, for instance, then the only issue might be what is your current
disability. There is probably a doctors report from a defense doctor who says
you have little or no disability and a doctor's report from our doctor who says
you have something more than that. The trial often consists only of your
testimony regarding how you feel now and what you can and cannot do.
Other times we may agree to the level of disability but be disputing some other
issue. Then there would be testimony only about that issue. The point is that in
a workers' compensation trial, we sometimes only try very narrow issues and then
allow the judge to make the decision based on the testimony and the medical
records. One thing that makes the trial shorter than a civil trial is that the
medical testimony is almost always taken by written report. We do not have the
doctors testify at the Workers' Compensation Appeals Board.
WHO WILL BE THERE?
This might be a good place to explain that the "Workers' Compensation Appeals
Board office" is actually the place where your case is originally tried. Having
the word "appeals" in the title makes it sound like it is an appeals court but
actually it is the original trial court.
Obviously, you and your attorney will be at the trial. Sometimes there will be
other witnesses. At the Mandatory Settlement Conference each side will have
listed the witnesses that they intend to call. Therefore, your attorney will
have discussed with you who the witnesses are. They may be people that you know
such as co-workers, or they may be investigators who have performed
investigation on behalf of the workers' compensation insurance company. Usually
if there is an investigator, it is because he has secretly taken video tape of
you performing activity which the defendants will allege shows that you can do
more than you claim. If this is the case, your attorney will usually have an
opportunity to review this tape with you and prepare to explain the activities
on the tape.
Remember that listing a witness on the Mandatory Settlement Conference Statement
does not necessarily mean that person will ultimately testify. Defendants list
everyone they can think of who they might want to call so that they are not
precluded from calling them.
Also present at the trial will be the judge and a court reporter. Just as in
your deposition, if you had one, the court reporter will take down everything
that is said in the room. However, in a workers' compensation case the court
reporter usually does not produce a written transcript. Instead, after each
session of the trial, the judge dictates to the reporter a summary of the
testimony based on the judges notes. That summary of testimony will be mailed to
you by the court. You should review it carefully and notify your attorney of any
inaccuracy's in the summary.
You may have witnesses of your own who will also be at the trial. If your
parent, spouse or friend comes with you for "moral support" they may or may not
be allowed into the court room. It depends on how much space is available and
whether the defense attorney or the judge objects.
In some cases there may be experts to testify but this is not common in a
workers' compensation case. If your case requires an expert, your attorney will
discuss this with you before hand.
WHAT WILL I DO AT THE TRIAL?
First you will usually wait patiently while the attorneys and the judge state on
the record what the issues to be determined are and what issues have already
been agreed upon. After that, you will usually be called as a witness. Sometimes
we take another witness ahead of you, either because your attorney decides that
it will be helpful to the case or to accommodate the schedule of another witness
who may not have to testify very long.
The judge or the court reporter will give you the oath. You will swear to tell
the truth. If you had a deposition this process will be very familiar. If not,
please read the materials regarding depositions because most of that material
will also be applicable to trial testimony. Once you are sworn in as a witness,
your attorney will ask you questions. You will answer them briefly and
concisely. Your testimony is called "direct testimony." That means that your
attorney cannot ask you "leading questions." The questions will not be allowed
to contain the answer in them. For instance, your attorney will not ask you "Did
you hurt your neck, shoulder and left arm at work?" The question in direct
testimony will be "What part or parts of your body were injured?" If you are not
prepared, or too nervous, and only answer "My neck" you will be creating a
problem for yourself.
Your attorney can help you prepare for the questions that he/she will ask you.
In some cases each question and answer are rehearsed carefully. However,
usually, the preparation is of a more general nature. You do not want the judge
to think that you have memorized your answers because that detracts from the
appearance of honesty. It looks like you are just saying what your attorney told
you to say and not what you believe.
When your attorney is finished asking you questions, the defense attorney will
have a chance to ask questions. This is called "cross examination" or "cross."
These questions are allowed to be "leading." In cross examination you may be
asked a question like "Didn't you hurt your neck in a car accident before your
work injury?" Stay calm and answer the questions that are asked of you. Just as
in your deposition, you should give brief and accurate answers. Even if it seems
like the answer will be bad for your case, it is better to answer truthfully
than to seem to be hiding something or lying. Hopefully, your attorney will have
prepared you for the difficult questions that might be asked. Sometimes we get
surprised at trial. This usually happens when you have not told your attorney
all that he/she needs to know.
Unlike your deposition, you will not be allowed to take a break whenever you
feel like it. However, if you have an emergency don't be afraid to ask if you
can take a short break.
Remember that your testimony is for the judge. You must direct your attention
toward the judge. You must speak loudly enough for the judge and the reporter to
hear you clearly. You must also speak slowly enough that the judge can take
notes. Some judges are very concerned about this and others can take notes
faster. The important point is that you should not direct your answers to either
attorney, but look at the judge and talk to him/her when you are answering.
Also, It is essential that you treat the judge and all persons in the court room
with absolute respect no matter how foolish or belligerent they seem. The judge
will be subconsciously influenced by whether he/she likes you or not.
If you are not testifying, you should not talk in the court room. You can,
however, quietly pass notes to your attorney.
WHAT SHOULD I WEAR?
You should dress neatly and cleanly. Remember that you are trying to impress the
judge as someone he/she can trust and believe. Judges are used to being around
people who wear ties. You are not required to wear a tie if you are a man. If
you are uncomfortable wearing a tie or do not own one, do not force yourself.
The idea is that you show your respect to the court by dressing in a manner
which is appropriate. Generally dressing up is better than dressing down but be
careful not to dress too well. This is not a party. Women should avoid revealing
clothes or excessive make-up.
HOW LONG SHOULD I PLAN TO BE THERE?
You should plan to be in court all day. It is not necessarily the case that you
will be in court all day but you must be available. You should arrive no later
than 8:30 a.m. and be prepared to stay until 4:30 p.m. with a lunch break from
approximately noon to approximately 1:30 p.m.
Most of this time you will probably be waiting around. The court sets
approximately 7 cases for trial before one judge in a day. One judge can usually
only actually perform one or two trials in a day. Sometimes less than one. Some
of the cases are expected to settle and usually do. If a trial starts in the
morning but is not finished it can begin again in the afternoon. Usually the
judge will do some activity toward disposing of the other cases before beginning
any trial. At this point he/she might tell your attorney that there is no chance
of going to trial today and another trial date has to be obtained. On the other
hand, he/she might be ready to start your trial immediately or might have
another matter to complete but begin your trial in the late morning or
afternoon.
Cases which have already had testimony taken have precedence over cases which
have not. Therefore, if your trial has begun on one day and continued to another
you can be more confident that you will have more testimony on the subsequent
days. Also, if a witness have traveled a long distance for a trial, the judge
will usually accommodate the witness by taking his testimony rather than make
him fly back to California over and over.
WHEN WILL WE GET OUR DECISION?
The judge will almost never render a decision on the day of trial. You will
receive the decision in the mail sometime after the trial, usually more than 30
days and less than 6 months. The judge might issue "rating instructions" to
which either attorney can object. This would be before the final decision. The
judge would describe the disability which he believes you have and ask the rater
to determine the percentage of disability. If either attorney objects to the
description of disability there may be a delay.
Generally speaking, trial is not a speedy way of reaching a decision. Even after
the judge has finally made his decision, the defendants, or your attorney could
appeal or "Petition for Reconsideration" ("Recon"). This could create another
delay of months or years.
However, in a normal case with few issues, you might expect a decision within
90-120 days.
WHAT WILL THE JUDGE DECIDE?
As stated above, the attorneys will have narrowed the issues so that the judge
has as few issues to determine as possible. The final Finding & Award will
usually indicate whether or not you were injured at work, if it is determined
that you were not, that will be the end of it. If the judge finds that you were
injured at work or the parties have agreed that you were injured at work, then
the finding and award of the judge will describe the period in which you were
totally temporarily disabled and the amount of your permanent disability
expressed as a percentage of disability. The judge will usually decide whether
or not you are entitled to future medical care as well. If you have the article
about settlements and refer to the Stipulation with Request for Award you will
have an idea of the basic format of the judges decision.
You may have noticed by now that most documents mailed from the court are also
mailed to you and to your attorney. It is possible that you will receive a
document before your attorney does. You may call your attorney and when he sees
the document he will be able to explain what the ruling of the judge means if
you do not understand it.
The workers' compensation judge will not award you a lump sum of money. The
judge awards temporary disability for a certain period of time, if that is an
issue. Since that period of time may have already been completed, you would
receive that money in a lump sum. The judge will award your permanent disability
in a dollar amount between $140.00 per week and $230.00 per week, depending upon
the level of your disability. He/she will state a date upon which those payments
begin and the number of weeks that you will be paid. It may also be that this
entire period has passed and in that case you would receive the money in a lump
sum. However, it is more common that the period has begun but not ended and you
will receive some money and continue to receive benefits for a period of time
after the award.
It may also be that you have already received some permanent disability advances
or payment of temporary disability which will be credited to the award.
Please communicate with your attorney if any of this explanation is not clear to
you or if you have any other questions which this article does not address.
Remember, you will have an opportunity to prepare for trial with your attorney
and to address the specific issues of your case sometime prior to the trial.
© Robert S. Havens, 2005
This article is for general information, and not meant as
specific legal advice. You should always see an attorney for specific legal
questions.
|
