Do not worry, your attorney will meet with you before your workers’ compensation 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 California 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, two or three months later. And then if the trial is still not finished, it will be continued another two or three months. It can sometimes take years to try a workers’ compensation case.
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On the other hand, your workers compensation trial may last only a few minutes to a few hours. Many issues, such as whether you were injured at work, or whether you were and employee at all, can be agreed to beforehand. So a trial might just be regarding whether a particular body part was injured as a result of your work, or whether the judge should follow the opinion of one doctor or another. Other times we may agree to the level of disability but dispute 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 At The Trial?
This might be a good place to explain that the “Workers’ Compensation Appeals Board” 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 who 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 judge’s notes. That summary of testimony will be mailed to you by the court. You should review it carefully and notify your attorney of any inaccuracies 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 beforehand.
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” and forget to say “shoulder and left arm,” 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 know to be true.
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?” If something like that happens, 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 should 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. Do not lose your temper or act disrespectfully toward anyone, especially the judge. If the defense attorney is being a jerk, the judge will notice, even though he/she will probably continue to treat that attorney with respect.
If you are not testifying, you should not talk in the court room. You can, however, quietly pass notes to your attorney. Do not make faces or gestures or otherwise show your feelings while you are not testifying. The judge will notice and will not appreciate any gestures or faces that seem at all to be trying to communicate your feelings to the witness or the judge.
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 the time in court, 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 has 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, in Southern California, 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 if 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 go to the article about settlements and refer to the Stipulation with Request for Award you will have an idea of the basic format of the judge’s 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 $270.00 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.
© Robert S. Havens 2018
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.
This article is for general information, and not meant as specific legal advice. You should always see an attorney for specific legal questions.