The Role of Interrogatories in Workers Compensation Cases

 

Learn How, Why, and When to Serve Workers Compensation Interrogatories on the Employer and Its Insurance Carrier

 

You have the burden of proving your entitlement to workers compensation benefits. You meet this responsibility by presenting facts.

 

The workers compensation discovery process is the method to learn the facts relevant to your case, both good and bad.

 

Written interrogatories are a powerful discovery tool for claimants in workers compensation cases. Written answers from the employer and insurer can verify known facts, narrow the legal issues in your case, show what defenses you’ll need to overcome, identify those persons whose deposition you should take, and locate important documents. The defendants’ interrogatory answers also provide material to impeach a witness testimony at trial if they change their position.

 

I’ve sent (and answered) thousands of sets of interrogatories over the years. These interrogatories have helped me win hearings and negotiate workers compensation settlements for many injured employees.

 

This article’s purpose is to share the interrogatories I use in my workers comp practice and provide tips on drafting your own. I hope these sample workers compensation interrogatories save you time and help you maximize your claim’s value.

 

If you have questions about workers compensation law in Virginia or want to speak with a top-rated work injury attorney, call me: (804) 251-1620 or (757) 810-5614. My firm is ready to help.

 

 

What are Interrogatories?

 

An interrogatory is a written question that one party sends to another during the workers compensation claim process.

 

Interrogatories are a set of written questions served on an opposing party in your claim.

 

What Information Can I Get through Interrogatories? 

 

Interrogatories help discover facts in every type of workers compensation claim. 

 

Here is a checklist of information that you can collect with interrogatories: 

 

  • The identity of all persons who witnessed the workplace accident and a summary of what they will testify to;

 

 

 

 

  • What case law (judicial precedent) and code sections the defendants think are relevant;

 

 

  • What medical records and reports the defendants think are relevant;

 

  • Whether the employer admits that you were an employee on the date of the accident;

 

  • The number of employees working for the employer on the date you were hurt;

 

 

  • What documents the defendants might try to introduce into evidence at the hearing.

 

  • Whether the defendants are withholding any documents for reasons of privilege, attorney work product, or otherwise, and an explanation of why

 

  • Who provided the information used to answer the interrogatories?

 

  • A concession that the accident happened the way you said it did

 

A word of caution: Just because you can collect this information doesn’t mean you should. If you already know the answer to a question or don’t need to know the answer to win at trial, there is no reason to ask it and waste an interrogatory you may need later.

 

Further, if the employer and insurer have accepted most parts of your claim, do not ask questions about the undisputed issues. You don’t want to risk the defense attorney uncovering information or documents that harm your case as part of answering a question about an uncontested fact or issue.

 

Can I Send Interrogatories to My Employer or Its Workers Compensation Insurance Carrier? 

 

Yes. 

 

Many states, including Virginia, allow an injured worker to serve interrogatories on the employer or insurance carrier in a workers comp case. 

 

In Virginia, you do not need to ask the Workers Compensation Commission for permission to send interrogatories if you serve them on the employer or its insurer more than 21 days before the hearing in your case. Nor do you have to submit a copy of the interrogatories to the Commission, with one exception. You should file a copy if they are the subject of a motion.

 

What Questions Are Off Limits in Workers Comp Interrogatories?

 

You probably have many questions for your employer, especially if you feel mistreated after a work injury. But workers compensation interrogatories are not the time or method to get all those answers. 

 

Rule 1.8(H) of the Rules of the Workers Compensation Commission governs the scope of interrogatories in Virginia.

 

You must limit interrogatories to contested issues. 

 

How Many Interrogatories Can I Send? 

 

Each state determines how many interrogatories a party can send. 

 

In most workers comp cases in Virginia, the parties can ask no more than 15 questions, including all parts and subparts. It’s possible to ask more, but only if you get the Workers Compensation Commission’s permission. And the Commission discourages additional interrogatories unless there is a good reason for more. 

 

When Should I Send Interrogatories to the Employer or Insurer?

 

There are two situations where you should serve interrogatories on the employer and insurer. 

 

First, I recommend sending interrogatories after filing a workers compensation claim that the insurer denies and contests, even in part. For example, suppose the insurer accepts that you injured your right shoulder but rejects a cervical spine or neck injury. In that case, you should still serve interrogatories that target the disputed parts of your claim. 

 

Second, serve interrogatories when an employer files a change-in-condition application to stop workers comp benefits that you disagree with.

 

No matter what situation applies to you, it’s best to send these questions as soon as you realize a dispute. You want to have plenty of time to ask for the Commission’s help if the employer and insurer refuse to answer your questions or provide incomplete information.

 

Can I Send More than One Set of Interrogatories?

 

Yes, you can send as many sets of workers compensation interrogatories as you want – as long as the total number of questions asked is less than 15.

 

I often send two or three sets of interrogatories per claim. This is necessary to clarify the employer’s answers to the interrogatories in the first set and pin it down to specific positions.

 

Who Answers Interrogatories?

 

Interrogatories seek answers from your employer and its insurance carrier collectively, including all their employees and agents. This means the employer and insurer must answer using the knowledge that co-workers, Human Resources, supervisors, safety directors, nurses, company owners, and claim adjusters for the insurer or third-party administrator (Sedgwick, Gallagher Bassett, Coventry, etc.) have.

 

After obtaining relevant information, the attorneys for your employer and its insurer will work with their clients to draft the interrogatory answers. An employer representative will sign the final version of the responses. 

 

How Long Do the Employer and Insurer Have to Answer Interrogatories? 

 

In Virginia, a party has 21 days to give answers under oath or penalty of perjury to each interrogatory. 

 

What Should I Do After Serving Interrogatories? How to Make Sure the Employer and Insurer Answer Your Questions

 

Don’t be surprised if the employer and insurer refuse to answer your questions and raise objections. An objection is a formal protest to the question asked, and the defendants must present it at the time they answer, or they waive it.

 

Though some objections are valid, in my experience most of the objections to written interrogatories are made to avoid answering discovery. Common objections that serve no purpose other than to ignore a valid interrogatory include:

 

  • The question is vague
  • The question is overly broad
  • The question is unduly burdensome
  • The claimant bears the burden of proof

 

It’s not enough to ask questions of the employer and insurer through written interrogatories. You must also demand complete answers. 

 

There are two steps to take if the employer’s answers to interrogatories are inadequate or they refuse to answer specific questions because of objections. 

 

First, you should send a letter to the attorney for the employer and insurer stating what answers are incomplete, why you think they’re insufficient, and requesting a response by a specific date – usually seven to fourteen days from the date you send the letter. 

 

Second, you should file a Motion to Compel Complete Answers to Interrogatories with the Workers Compensation Commission. The Motion to Compel should include:

 

  • A letter stating when you sent the interrogatories to the employer and insurer, what interrogatory answers you find incomplete, and your efforts to get complete answers

 

  • A copy of the employer’s answers to interrogatories

 

  • A copy of the letter you sent to the employer asking for more complete answers.

 

  • Any response you received to your request for better answers.

 

The Deputy Commissioner (judge) assigned to your case will allow the employer and insurer to respond before deciding the motion. 

 

Do the Employer and Insurer Have to Supplement or Amend Their Interrogatory Answers as New Information Becomes Available?

 

Yes.

 

All parties must supplement or amend answers to interrogatories as they receive more information.

 

Can I Use the Employer’s and Insurer’s Interrogatory Answers at the Workers Compensation Hearing?

 

Yes – interrogatory responses are admissible evidence in limited situations. 

 

As discussed earlier in this article, the parties do not submit written interrogatory answers to the Workers Compensation Commission unless the answers are the subject of a motion to compel or a motion to quash. 

 

But a party may introduce responses to interrogatories at a hearing to impeach a witness’s credibility during cross-examination. When this happens, the interrogatory answers become part of the trial record. 

 

Sample Claimant’s (Injured Worker’s) Interrogatories to the Employer and Insurer in a Workers Compensation Claim

 

Every claim is different, and there is no set of interrogatories that apply to every worker’s compensation case. But there are fundamental questions and information you’ll need no matter the type of workplace accident or injury.

 

Below is a list of sample workers compensation interrogatories you can use to start proving your case. The list includes interrogatories for cases involving willful misconductslip and falls on property owned by others, and work-related car accidents. Though the actual questions will change depending on your claim’s facts, these are a good starting point.

 

Claimant’s First Set of Interrogatories to Employer and Insurer

 

Comes now, Claimant, by counsel, and requests you to produce the documents and tangible things described below which are in your possession, custody, or control at the law offices of Corey R. Pollard, 1111 East Main Street, Suite 803, Richmond, VA 23219 as prescribed by the Rules of the Workers’ Compensation Commission.

 

DEFINITIONS

 

1. “Agreement” means a contract, arrangement, or understanding, formal or informal, oral or written, between two or more persons.

 

2. “Any” means one or more. 

 

3. “Communication” means any disclosure, transfer, or exchange of information or opinion, however made.

 

4. The phrase “describe in detail” as used in these interrogatories includes a request for a complete description and explanation of the facts, circumstances, analysis, opinion and other information relating to (as that phrase is defined below) the subject matter of a specific interrogatory.

 

5. “Document” means any written, recorded, or graphic material of any kind, whether prepared by you or by any other person, that is in your possession, custody, or control. The term includes agreements; contracts; letters; telegrams; inter-office communications; memoranda; reports; records; instructions; specifications; notes; notebooks; scrapbooks; diaries; plans; drawings; sketches; blueprints; diagrams; photographs; photocopies; charts; graphs; descriptions; drafts, whether or not they resulted in a final document; minutes of meetings, conferences, and telephone or other conversations or communications; invoices; recordings; published or unpublished speeches or articles; publications; transcripts of telephone conversations; phone mail; electronic-mail; ledgers; financial statements; microfilm; microfiche; tape or disc recordings; and computer print-outs.

 

The term “document” also includes electronically stored data from which information can be obtained either directly or by translation through detection devices or readers; any such document is to be produced in a reasonably legible and usable form. The term “document” includes all drafts of a document and all copies that differ in any respect from the original, including any notation, underlining, marking, or information not on the original. The term also includes information stored in, or accessible through, computer or other information retrieval systems (including any computer archives or back-up systems), together with instructions and all other materials necessary to use or interpret such data compilations.

 

Without limitation on the term “control” as used in the preceding paragraph, a document is deemed to be in your control if you have the right to secure the document or a copy thereof from another person.

 

6. “Identify” when used with respect to an individual, means to state: (1) their name; (2) business affiliation and official title and/or position; (3) their last known residential and business address; (4) their telephone number; and (5) their electronic-mail address.

 

7. “Identify” when used with respect to a document, means to state: (1) the type of document (e.g. letter, memorandum, hand-written note, facsimile, e-mail); (2) its date of origin or creation; (3) its author and addressee; (4) its last known custodian or locations; and (5) a brief description of its subject matter and size. In lieu of identifying any document(s), you may attach a copy of it to your answer, indicating the question to which it is responsive.

 

8. “Identify” when used with respect to a company or other business entity, means to state: (1) the company’s legal name, any former names, and the name under which it trades or does business; (2) the address of its principal place of business; and (3) the identity of its chief executive office or president.

 

9. “Including” means including, but not limited to.

 

10. “Person means any natural person, corporation, partnership, trust, associations, company, organization, or any form of a business or commercial entity.

 

11. “Relate to” means consist of, refer to, reflect, or be in any way logically connected with the matter discussed.

 

12. The period of time encompassed by these requests shall be from the date of the alleged accident to the date of answering unless otherwise indicated. Note, this request is continuing up to and at the time of trial.

 

13. A statement includes: (1) a written statement, signed or other otherwise adopted or approved by the person making it, or (2) a stenographic, mechanical, electronic, video graphics or another recording, or a transcript thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

 

14. The singular form of a noun or pronoun shall be considered to include within its meaning the plural form of the noun or pronoun, and vice versa; and the past tense shall include the present tense where the clear meaning is not distorted. The term “or” shall mean “and” and vice-versa, as necessary to bring within the scope of the following interrogatories all information or documents that would be excluded absent this definition. 

 

INSTRUCTIONS

 

1. Unless otherwise specified, these interrogatories are limited to the time period from the date one day prior to the date of the alleged accident, to and including the date of service of these interrogatories. 

 

2. Where knowledge, information, or documents are requested, such request encompasses knowledge, information, or documents in your possession, custody, or control, or in the possession, custody, or control of your staff, agents, employees, representatives and, unless privileged, attorneys or any other person who has possession, custody, or control of your proprietary knowledge, information, or documents.

 

3. Pursuant to the Rules of the Virginia Workers’ Compensation Commission, you are under a duty seasonably to amend any answer to these interrogatories for which you learn that the answer is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to us during the discovery process or in writing. 

 

4. For any interrogatory or part of an interrogatory which you refuse to answer under a claim of privilege, submit a sworn or certified statement from your counsel or one of your employees in which you identify the nature of the information withheld; specify the grounds of the claimed privilege and the paragraph of these interrogatories to which the information is responsive; and identify each person to whom the information, or any part thereof, has been disclosed. 

 

5. Answer each interrogatory fully. If you object to any interrogatory, state the reasons for objection and answer to the extent the interrogatory is not objectionable. If you are unable to answer an interrogatory fully, submit as much information as is available, explain why your answer is incomplete, and identify or describe all other sources of more complete or accurate information.

 

6. For any record or document responsive or relating to these interrogatories which is known to have been destroyed or lost, or is otherwise unavailable, identify each such document by author addressee, date, number of pages, and subject matter; and explain in detail the events leading to destruction or loss, or the reason for the unavailability of such document. 

 

Interrogatories

 

1. Do you agree that you employed the claimant on the date of the accident?

 

2. Do you agree that the claimant suffered an injury in the work-related accident that is the subject of this claim? An injury is a sudden mechanical or structural change in the body (bruising, bleeding, laceration, fracture, concussion, etc.) caused by a specific activity or movement.

 

3. Do you agree that the claimant’s accident occurred at a location that he/she could reasonably have been expected to be to fulfill their job duties?

 

4. State the name, address, and telephone number of each person you intend to call to testify on the employer’s behalf in this matter and provide a summary of the facts to which you expect each such person to testify to.

 

5. Identify by author, date, and subject matter each document that supports each defense the employer alleges in this claim. Attach a copy of each document to your interrogatory answers.

 

6. If the claimant, or anyone acting on behalf of the claimant, has given any recorded, written, or oral statement concerning his claim which you intend to rely upon at the hearing in this case, identify by name, address, phone number, and business affiliation, the person to whom such statement was made and the date of the statement. Attach a copy of any statement to these answers.

 

7. If the claimant has been photographed, videotaped, or recorded in some other manner after the work-related injury in this case, identify the name, address, phone number, and business affiliation of the person who took such pictures and/or recordings and the date, time, and location where such were taken. Please attach a copy of any such photographs, videotapes, recordings, etc. to the answer to this Interrogatory.

 

8. Identify each person whom you expect to call as an expert witness at the trial of this case, including health care providers and those individuals whose opinions you will rely on through written documents instead of verbal testimony, and state the following:

 

a. The subject matter on which the expert witness will testify;

b. A detailed statement of the facts and options to which the expert witness will testify; and,

c. The basis for the expert’s opinions.

 

In addition, please attach a copy of any and all correspondence, including letters and e-mails, exchanged between you and each expert witness identified above.

 

9. Please state the claimant’s gross wages for the year prior to his injury by accident, including any and all straight time and overtime wages and any fringe benefits included in the claimant’s wages, such as food and/or clothing allowance.

 

10. Please state the claimant’s official job position and provide a list of all job duties. Attach a copy of the claimant’s written job description to your answers to these interrogatories.

 

11. On what basis does the employer contest the claimant’s legal rights to the workers compensation benefits sought the pending Claims for Benefits/Requests for Hearing?

 

12. What facts support each contention in your response to Interrogatory No. 11 above?

 

13. Please state the name, address, phone number, and electronic-mail address of each individual whom the defendants know or believe to have knowledge of facts or circumstances related to this case, including those who witnessed the injury, and provide a summary of the facts or circumstances each such person knows.

 

14. Please list the claimant’s authorized treating physician(s).

 

15. Please state when the employer first received notice of the claimant’s injury by accident? Identify the individuals who received such notice and the manner in which they received notice.

 

16. Please state the exact figure you allege the claimant’s pre-injury average weekly wage to be and include a wage chart.

 

17. Please state what portions of the claimant’s Request for Hearing that you do not dispute. For example, please identify whether you accept that the claimant is entitled to wage loss benefits for any closed period or whether the claimant is entitled to lifetime medical benefits for some of the injuries claimed.

 

18. If you are relying on a specific safety rule to support your willful misconduct defense, please state the exact date you told the claimant about this rule, which of the employer’s agents told the claimant about this rule, and whether you have a document from the claimant acknowledging this rule. Please produce a copy of this document if it exists. 

 

19. Please state what laws or government regulations you allege the claimant violated if you are raising a willful misconduct/violation of a safety rule defense.

 

20. What personal protective equipment did you provide (i.e., give directly or make available on-site) to the claimant on the accident date?

 

21. What specific safety rule (written or verbal) do you rely on to support your defense that the claimant failed to utilize required personal protective equipment? Please provide a copy of the rule if one exists.

 

22. Did you provide the claimant the safety equipment you allege he should have used but didn’t?

 

23. In the past five years, how many employees did you discipline for failure to use personal protective equipment or violation of a safety rule or law or regulation? Please state their name, job title, the date of the breach, and the exact offense.

 

24. Did you allow employees on the job site where the claimant was injured to use personal protective equipment they owned?

 

25. How many employees worked for you on the date of the accident?

 

26. Have you paid any indemnity benefits (Temporary Total Disability, Temporary Partial Disability, or Permanent Partial Disability) or medical expenses related to this claim? If so, please list the dates, amounts, and type of each payment (including the medical provider you paid).

 

27. Do you agree that the claimant’s accident occurred either on the employer’s premises or where the employer had a right of passage? If your answer is No, please state all facts that support your answer. 

 

28. Do you agree that the claimant was required to traverse the area (i.e., the parking lot) where her accident occurred to enter and exit the building she was assigned to? If your answer is No, please state all facts that support your answer.

 

29. Do you agree that the employer either paid for or had designated spaces in the parking lot where the claimant’s accident occurred? If your answer is No, please state all facts that support your answer.

 

30. Do you agree that the claimant’s accident happened on the grounds immediately surrounding the employer’s business location? If your answer is No, please state all facts that support your answer.

 

31. Who owned the vehicle the claimant was operating or a passenger in at the time of the work-related motor vehicle crash?

 

32. Who owned the tractor-trailer the claimant operated at the time of the crash?

 

33. Who manufactured the vehicle the claimant was operating or a passenger in at the time of the crash?

 

34. Have you terminated the claimant’s employment? If so, state the date you terminated the employment and the reason(s) why.

 

35. Can you accommodate the claimant’s light-duty restrictions?

 

36. Did you ask the claimant to undergo a post-incident drug test? If so, state if it happened and the results.

 

37. Did you purchase a long term disability insurance policy on the claimant’s behalf before the accident that is the subject of this claim? If so, attach a copy.

 

38. Have you requested medical records related to this claim? If so, attach copies.

 

39. Have you offered any Award Agreement Forms or Workers Compensation Award Letters to the claimant? If so, state the date and attach copies.

 

40. Do you agree that the claimant’s injury occurred because of a work-related risk?

 

41. How do you allege the claimant’s accident happened?

 

Get Help with Your Injury Case

 

If you are looking for help in a workplace accident, product liability, car accident, or truck crash case, call (804) 251-1620 or (757) 810-5614 or e-mail me today.

 

I help injured workers with severe, life-changing injuries (amputation, burns, spinal cord trauma, CRPS, back injury, head injury, rotator cuff tear, ACL tear, ankle injury, post-concussive syndrome, etc.) get the benefits and settlements they deserve.

Corey Pollard
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