Deposition Tips in Your Workers Comp Case

What to Expect at Your Workers Compensation Deposition

Follow These Tips at Your Workers Comp Deposition and You Will Give Yourself the Best Possible Chance of Winning at Hearing or Negotiating a Favorable Settlement

If you are reading this article then you either received a notice of deposition in your workers compensation case or are researching what to expect during the workers comp claims process.

For many of you, your workers comp deposition will be the most important thing that happens during your case. That is because many cases settle during the workers comp discovery period and before trial. And settlements often reflect the impressions that you, your doctors, and other witnesses make in depositions.

Knowing this, you must prepare for your deposition to give yourself the best chance of getting the medical care and cash benefits you deserve.

The purpose of this article is to explain what happens during a workers comp deposition and to help you prepare for the deposition so that you feel more comfortable as you answer questions.

If you have any questions about workers compensation in Virginia, or are looking for an experienced workers comp lawyer to help you win your case, call me for a free consultation: (804) 251-1620 or (757) 810-5614.

What is a Deposition?

A deposition is a question-and-answer session under oath.

During a deposition lawyers for the parties will ask a person questions. The person being question is called the deponent.

The deponent must answer the questions as though they were giving testimony at a workers compensation hearing. That is the purpose of making the deponent testify under oath.

Whose Deposition Can Be Taken in a Workers Compensation Case?

Rule 1.8(G) of the Rules of the Workers Compensation Commission explains when and how depositions are taken in workers comp cases.

It states that the parties, meaning you and your employer, may take the deposition of any person, including the opposing party.

It is common to take the depositions of the following persons in a workers comp claim:

• The injured employee.

• The insurance claims adjuster.

• Any witness to the accident.

• The injured employee’s spouse or family members if those persons will testify at hearing. This is common in catastrophic injury cases, such as those involving head injuries, traumatic brain injury, and post concussion syndrome, and claims involving pre-existing conditions such as degenerative disc disease.

• The injured employee’s supervisors if timely notice of the accident is disputed.

• The authorized treating physician.

• Any other physician that has treated the injured employee for the work injury or occupational disease in question.

This article focuses on workers compensation depositions of injured employees.

What is the Purpose of a Deposition?

There are several reasons to take the deposition of an injured employee. These include:

• To find out what happened. Before your deposition the defense attorney has probably spoken to the claims adjuster, your boss, your co-workers, the doctor you chose from the panel of physicians, and other witnesses to the accident, if any. That attorney has likely issued workers comp interrogatories, which you would have answered with the help of your lawyer. Your deposition is the first time that defense counsel gets to hear from you directly without your lawyer’s help.

• To evaluate your credibility. Many workers comp cases are decided on whether the judge finds you credible or not. Your deposition is often the first time that defense counsel gets to speak with you and to assess both your credibility and likeability.

• To expose case weaknesses to you and your attorney. Some defense attorneys will use the deposition to try to poke holes in your claims and evidence. Their hope is that you and your attorney will realize that the case is not as strong as you think, which may lead to a lower settlement.

• To get you to provide answers that are harmful to your case and that he can read into the record at hearing.

• To pin you down to one version of events. If you testify to one thing at deposition, then another at trial, defense counsel can use the discrepancy in your testimony to attack your credibility.

• To gather facts to determine a fair workers compensation settlement range. Sometimes there is no dispute about the specific workers comp benefits you are owed, such as temporary total disability, temporary partial disability, permanent partial disability, or lifetime medical benefits. But the insurer needs more information to determine how much to offer to settle the claim.

Does the Insurance Company Need Permission to Take My Deposition?

No.

The insurance company does not have to ask you or the Workers Compensation Commission for permission to take your deposition.

Can the Insurance Company Take My Deposition if I am Not Represented by an Attorney?

Yes.

The insurance carrier is allowed to take your deposition even if you are a pro se claimant, which is a fancy term for injured employees whom are not represented by counsel.

Though you can represent yourself following a work injury, I don’t recommend it. It helps to have an attorney in your corner, fighting for your rights.

Not sure if you are ready to hire an attorney? That’s fine. It is a big decision. Read my article on when to hire a workers comp lawyer for more things to consider.

How Will I Know if My Deposition is Scheduled?

The insurance company may schedule your deposition by filing a Notice of Deposition with the Workers Compensation Commission, then issuing a subpoena compelling your attendance at the deposition at the date, time, and location listed on the Notice.

That method is aggressive. And issuing a subpoena is rarely necessary to compel a party’s attendance at deposition.

As a practical matter the insurance company’s attorney and your attorney will talk and agree on a date, time, and location that works for everyone.

Can I Refuse to Give a Workers Comp Deposition?

No.

You must attend if you are subpoenaed to a deposition or if the Commission orders you to give a deposition.

Failure to do may lead to sanctions, including the dismissal of your claim and forfeiture of benefits.

Is it Common for an Insurance Company to Take the Deposition of an Injured Worker?

Yes.

The insurance company takes the deposition of my client in more than half of the workers comp claims I handle.

Where is the Deposition Held?

A deposition can take place anywhere.

Usually your deposition is held in your attorney’s office.

Sometimes the deposition will take place in the insurance company’s office.

If you do not live close to your attorney or the insurance company’s attorney, then your deposition may take place in a conference room near where you live.

Can I Attend My Deposition by Phone if I Live Out of State?

Maybe.

Some of you may live out of state even though Virginia has jurisdiction over your workers comp case. This is common in airline employee work injury claims. Many of the injured United Airlines and American Airlines employees I represent live out of state even though they are officially based out of Reagan National or Dulles Airport.

If you are unable to travel to Virginia for your deposition, you may ask the defense attorney for permission to attend by phone or video. Usually this is not a problem. And I recommend this option for my clients who live out of state.

If, however, defense counsel refuses to conduct the deposition by phone or video, you may ask the Workers Compensation Commission for permission to do so. In my experience the Commission will grant your request unless there is a special circumstance that makes it necessary for the defense attorney to depose you face to face.

Who Will Attend My Deposition?

Several people may attend your deposition.

People Who Must Attend In Person

Both you and a court reporter will attend the deposition in person.

The court reporter, also called a stenographer or law reporter, will transcribe every word spoken during the deposition and create a transcript that is then used as evidence at trial.

If the deposition is a video deposition, then a videographer will attend the deposition in person. The videographer operates the video recording equipment.

People Who Must Attend Either In Person, By Phone, or By Video

The attorney taking your deposition and the attorney defending you at the deposition must attend, either in person or by video or phone.

People Who May Attend the Deposition

Sometimes people other than you, the court reporter, and the attorneys attend the deposition.

For example, your employer, its insurance company, or its third party administrator may have a representative attend your deposition. Or you may have a family member or friend attend the deposition for moral support.

These people may attend the deposition so long as (a) both parties agree to it and (b) the person attending does not testify at trial. A potential trial witness is not allowed to listen to another witness’s deposition.

As a general rule, I do not recommend having other people attend and observe the deposition.

Who Will Ask Questions at My Deposition?

The attorney representing your employer, its insurance carrier, and its third party claims administrator (TPA) will question you at the deposition.

Your attorney can ask you questions at the deposition, but there is rarely any reason to do so. Your lawyer can talk with you at any time and does not need to question you under oath unless you are at trial.

There are, however, two exceptions to this rule.

First, I may ask my client questions at deposition if they made a mistake while testifying and I want to clarify and correct that mistake so that the deposition transcript is not used to impeach their credibility at trial.

Second, I may ask my client questions to show how strong the case is on certain points if I think that defense counsel does not understand just how strong our case is.

Do I Need to Bring Anything to My Deposition?

No.

Do not bring anything to your deposition unless your lawyer asks you to.

Back when I used to represent employers and insurance carriers, I would see many injured workers bring documents to their deposition and then pull them out to refer to while answering my questions.

Often these were documents that hurt their case and that I had not seen before. By bringing them to deposition, the injured worker decreased their claim’s value by giving documentation to support additional defenses.

What Should I Wear to My Workers Compensation Deposition?

Treat the deposition the same way you would treat an interview or a court appearance.

For men this usually means wearing slacks, a long-sleeved button up shirt, and dress shoes. Do not wear shorts, jeans, tennis shoes, sandals, or a hat.

For women this usually means wearing a blouse with slacks or a skirt.

If you are not sure if what you are planning to wear to the deposition is appropriate, call your attorney and ask.

Can My Lawyer Help Me Prepare for Deposition?

Yes.

Your lawyer can – and should – help you prepare for deposition.

There are two ways that your attorney can help you prepare for your workers comp deposition.

First, he can give you a handout with background rules and advice on giving a deposition.

Second, he can meet with you, in person or by phone, and conduct a practice deposition. During the practice deposition your lawyer can explain why defense counsel is asking that specific question.

Ask for both forms of preparation.

What Happens at My Workers Comp Deposition?

Everyone in attendance sits at a conference table. You are allowed to stand and to take breaks as needed.

Then the court reporter will ask you to raise your right and to promise to tell the truth and nothing but the truth. This is called an oath. So even though your deposition is taking place in a conference room, you should still treat it as though you are in court testifying before a judge or jury.

Next the attorney who scheduled your deposition will ask questions about any matter related to the case.

After you have answered all of the questions from the insurance company’s attorney, your attorney may ask you some. But as discussed above, it is common for your attorney not to ask you any questions at the deposition since he may discuss the case with you outside the present of the lawyer for the employer and insurance carrier.

Once you have answered all questions, the court reporter will ask if you want to “read or waive.” You should answer “read.” I discuss why later in the article.

Then the court reporter will ask the parties if they want to order a transcript of the deposition. If either party says yes, the court reporter will type a transcript and release it after receiving payment. If both parties say no, the court reporter will save all recordings from the deposition in case either party changes its mind before trial.

How Long Will My Workers Compensation Deposition Take?

The length of the deposition usually depends on where you are in the claims process.

For example, a deposition taken shortly after you file a workers comp claim will likely take longer than a deposition taken after you file a change in condition claim seeking additional benefits or a change in treating physician, or after the employer files an application to stop benefits. That is because change in condition claims often address just one or two disputed issues.

On average a workers comp deposition lasts from 1 to 3 hours. It is rare for the deposition of an injured worker to take more than 3 hours.

What Questions Will I Have to Answer at My Workers Comp Deposition?

Most defense attorneys start the deposition by giving you a brief overview of what to expect and by asking you to give verbal responses, as opposed to shaking or nodding your head.

Then defense counsel will ask you a series of questions. Though the questions change depending on the specifics of your claim, usually a workers compensation deposition covers these topics:

• Background Information: This includes your living situation, number of children, and the area you live in for job search purposes.

• Educational Background: The highest grade you completed and your vocational training play an important role in determining whether you’ve conducted a good faith job search. You must look for work if you are not under an open award for wage loss benefits and your treating physician has released you to some form of light duty.

• Employment Background: These questions are used to get an idea of the type of work you are familiar with if the insurance company offers vocational rehabilitation services.

• Past Injuries: A common defense to workers comp claims is that the injured employee’s ongoing disability is related to a preexisting condition, such as degenerative disc disease or arthritis. Expect many questions about prior accidents, injuries, and chronic medical conditions.

• How the Accident Happened: These questions are asked to determine if you suffered a compensable injury by accident that is covered under the Workers Compensation Act.

• Medical Treatment: Though the actual medical records and physician statements are more important, the insurance company’s attorney will ask about every place you have received treatment so that it can issue a subpoena to each health care provider.

• Work Restrictions: The insurance company will ask for your understanding of what type of work you can do following your work accident.

• Job Search: If you have been released to light duty work then you have an obligation to look for work within your restrictions. The insurance company will try to find out if your job search has satisfied the Commission’s Guidelines on Looking for Light Duty Work.

• Criminal Convictions: The insurance company is entitled to ask if you have been convicted of a felony or of a misdemeanor involving lying, cheating, or stealing. You should answer yes or no – but nothing more. If you’ve been convicted of such a crime the insurance company will use it to attack your credibility.

• Symptoms: The insurance carrier’s attorney will ask about current symptoms, restrictions, and limitations.

Do I Have to Answer All the Questions Asked at My Deposition?

Usually.

The insurance carrier’s attorney is permitted to ask you about a broad range of topics. They may even ask questions that are not permissible at trial.

But there are some exceptions. They may not ask you about:

• Any conversations or other types of communication (emails, letters) that you have had with your attorney or your attorney’s staff. These communications are protected by the attorney-client privilege.

• Anything that may result in you admitting to a crime. You do not have to answer any questions that result in self-incrimination.

Your attorney may also object to certain questions asked by defense counsel. But you should answer them unless your attorney instructs you not to. As long as your attorney preserved the objection you can raise it again at trial.

Can I Change My Deposition Testimony?

Yes.

Earlier in the article I discussed “reading or waiving” after the deposition. And that you should always ask to read the transcript when it is prepared.

You are allowed to read the transcript and to note on a correction sheet any changes or additions you want made. Sometimes these are minor typographical errors, such as misspellings. But other times you may want a substantive change if you realize that you did not understand the question or misspoke.

The correction sheet is made part of the deposition transcript.

Will the Judge Listen to My Deposition or Review the Deposition Transcript?

Maybe.

If a party orders a deposition transcript then the transcript must be filed with the Workers Compensation Commission either before or at the hearing.

Usually the judge will not read your deposition transcript unless the insurance company’s attorney uses it at the hearing to attack your credibility.

What Happens After My Deposition?

A deposition is a major event in any workers comp case.

And in my opinion, the month after your deposition is a good time to try to settle your claim.

After your deposition is taken and the transcript is completed, both your attorney and the employer’s attorney will analyze the testimony.

Depending on the strength of the testimony your attorney may decide that your case has greater settlement value than initially thought, or less.

The deposition transcript may also give your attorney a better idea of the defenses the insurance carrier is relying on. He can use that information to develop more evidence to overcome that defense.

What Rules and Tips Should I Follow to Be a Good Witness at My Workers Comp Deposition?

Below are a few things to remember before and during your deposition.

Tell the truth. Credibility is everything at trial. Do not be afraid to admit a fact that you think hurts your case. As I tell my clients, a good attorney can deal with a bad fact, but not a bad surprise.

Stay calm. Most defense attorneys are polite and will treat you respectfully. Others will be rude and try to get under your skin. Remember that the insurance company’s attorney has a job to do – and that is to limit the value of your case. Don’t let that bother you. Stay calm and measured, and answer the questions asked. These are the types of witnesses that insurance companies hate because they know that you’ll come across as credible as trial.

Listen to the whole question. Don’t answer until you’ve heard the entire question. Some people will try to guess the question and answer quickly. That won’t help your case. Listen to the question, give your attorney a few seconds to object if the question is improper, then answer.

Don’t volunteer information. Your deposition is not the time to talk about things you find important to your case. Your only obligation – and the only thing you should do – is to answer the question being asked. A simple “yes,” “no,” or “I don’t know” is usually good enough.

Don’t share what you and your attorney have spoken about. The other side is not entitled to know what you and your attorney have talked about during confidential conversations. Most defense attorneys will not ask you about your conversations with your attorney, but if they do you do not have to answer. Your attorney should step in and object.

Don’t guess. A deposition isn’t a memory test. If you don’t understand a question or don’t know the answer to a question it is ok to say so. A guess can come back to hurt your credibility and your case.

Get Help Preparing for Deposition and Winning Your Workers Comp Case

Unlike a trial, a workers compensation is one-sided.

The employer and insurance carrier’s attorney gets to ask you questions meant to get information that can be used to defend your claim, while your lawyer has a limited role.

But that is ok. If you prepare for your workers comp deposition you will be able to perform well enough to increase your claim’s value.

Call, text, or e-mail me today for help with your work injury case: (804) 251-1620 or (757) 810-5614. From preparing for deposition to negotiating a settlement to winning at trial, I am here for you every step of the way.