Types of Questions Asked at Workers Comp Hearings

 

How to Prepare for Direct and Cross-Examination at Your Workers Compensation Trial

 

The big day arrives. It’s time for your workers compensation hearing. 

 

You have gathered information from your treating physicians, witnesses, and the defendants through the litigation discovery process. 

 

You have entered stipulations, narrowing the issues in dispute after reviewing interrogatory answers and responses to requests for production and requests for admissions and giving and taking depositions. 

 

You have researched the legal issues and printed the precedent (case law) that is on point with the facts of your case. 

 

You have prepared a Designation of Medical Records to give to the judge presiding over your case, submitting only those records that prove causation, disability, and necessary treatment.

 

You have decided which witnesses to call to testify. 

 

And you have read my article on what happens at a workers comp hearing.

 

Now what? 

 

You are ready to call the first witness to testify – you!

 

This article explains common questions asked at workers compensation hearings and what topics to discuss during your direct examination to tell your story effectively. I also provide sample questions that satisfy the rules of evidence and help you win. 

 

Your ability to receive medical treatment and income for the work injury rests on proving your case at trial. And proving your case at trial depends, in large part, on your ability to present testimony and facts on every element needed to prove your claim. Direct examination is the time to do that. 

 

Please keep reading to learn more about workers comp hearing questions. 

 

If you have questions about your case or want to hire a top-rated workplace injury lawyer, call me for a free consultation: (804) 251-1620 or (757) 810-5614. 

 

My injury and accident law firm has helped thousands of injured individuals recover benefits and negotiate settlements under workers comp law, and we want to help you and your family.  

 

Trial Strategies for Workers Comp

 

The trial is your opportunity to introduce yourself to the judge, describe the workplace accident and resulting injuries, prove that your disability resulted from the work injury, and tell the judge other information necessary to get all the workers comp benefits available. And to do so in the shortest yet most effective way possible.

 

In every workers compensation case, you have the burden to prove each element of the claim, with few exceptions. Your testimony on direct examination is an essential part of this.

 

Your direct examination serves several purposes:

 

• Introducing you to the judge (deputy commissioner) deciding your case. 

 

• Establishing that you are an employee covered under the Workers Compensation Act

 

• Meeting your burden of proof (preponderance of the evidence in most cases; clear and convincing evidence in some occupational disease claims; and, a rebuttable presumption in heart and lung disease cases)

 

• Establishing the basis for other testimony (from other witnesses) and documentary evidence (medical records, vocational reports, etc.)

 

The next section of this article provides a sample direct examination (with commentary) to serve as a template for hearing.  

 

Sample Direct Examination of Claimant (Injured Employee) at a Workers Comp Hearing

 

I understand how difficult and stressful a trial can be for you.

 

Knowing what testimony you will have to give by understanding what questions are asked at a workers comp hearing can reduce your stress and improve your odds of winning at trial.

 

Introducing You to the Court

 

Credibility often determines whether you win at trial or not.

 

An excellent first impression can help you prove that you are credible and likable and deserve to win.

 

You do this by answering questions about yourself, your family, your role in the community, and your career.

 

General background questions in workers comp hearings include:

 

• Would you please state your full name for the court?

 

• What is your current address? (If you are released to light duty, you must market your residual work capacity (look for work within your restrictions) to get temporary total or temporary partial payments. The availability of jobs near your home is part of evaluating your job search efforts. Those of you who live in a rural area will want to tell the judge that.)

 

• How long have you lived in the area?

 

• What is your date of birth? (The older you are, the more difficulty you have will have when trying to transition to a new career. This factor impacts the evaluation of your job search evidence.)

 

• What is your marital status?

 

• Describe your living arrangements, including who you live with?

 

• Do you have any children under the age of 18?

 

Education and Job Training

 

For a few reasons, educational background and vocational (job training, etc.) questions are asked at workers comp hearings.

 

This information is vital when the insurer alleges that you can return to full duty, that your job search is inadequate, or that you unjustifiably refused light duty work offered by the employer.

 

Expect questions such as:

 

• Did you graduate high school or earn a GED (Graduate Equivalency Degree or General Educational Diploma)?

 

• Did you attend a trade school?

 

• Did you go to college and, if so, what degree did you earn?

 

• Have you served in the military?

 

• Do you have any vocational certificates, such as a CNA license?

 

• Do you have any special driver’s licenses, such as a CDL (Commercial Driver’s License)?

 

• Have you received any on-the-job training?

 

Employment History (Work Background and the Job You Had When You Were Hurt)

 

Your employment history not only builds your credibility but also proves your job search is adequate.

 

Expect questions such as

 

• What jobs have you held in the past ten years, including the dates worked, position held, wages, and reason for leaving?

 

• When did your current employer hire you?

 

• What job were you hired to perform?

 

• Were you given a pre-employment physical exam?

 

• Is this the position you held when you were injured? If not, please describe the date of promotion to your current position.

 

• Describe your job, including the general duties, mental and physical requirements (lift, carry, push, pull, stand, walk, sit, drive), typical hours, and pay.

 

• If the employer alleges you were an independent contractor, not an employee –
  • Were you paid by cash or check (including direct deposit)?
  • Did you have assigned hours?
  • Were you paid a salary, by the hour, or per project?
  • What tools and materials were used to complete the job?
  • Who provided the tools and materials?
  • What percentage of your work was for the employer?

 

• Did you return to work with this employer after the injury? If so, state the period, job (full duty or light duty), and pay.

 

Preexisting Conditions, Past Claims, and Subsequent Accidents

 

You can receive workers comp benefits even if you have a preexisting condition.

 

For example, I have helped injured employees with conditions such as arthritis (of the knee, hand, ankle, or shoulder) or degenerative disc disease of the spine (back or neck) win at hearing – even when they had surgery before.

 

I have also won claims for clients who injured the same body part in the past, such as a prior head injury (but now post-concussion syndrome) or torn rotator cuff. But you must prove that the most recent workplace injury contributed to the condition in its current state.

 

You prove a causal relationship between the work injury and the preexisting condition by showing that the work injury exacerbated, aggravated, flared up, worsened, or accelerated the condition (or surgery such as spinal fusion or joint replacement). Often this requires a letter or questionnaire response from your doctor. But your testimony about how your current symptoms and disability are different can help win your case.

 

Expect questions such as:

 

• Have you injured this body part before?

 

• When?

 

• Did that injury resolve?

 

• Were you actively receiving medical treatment immediately before its work accident?

 

• If so, what type of medical treatment (conservative care such as therapy or injections, or surgery)?

 

• If not, when did you last receive medical care for this body part?

 

• Were you under work restrictions when you arrived to work on the date of the accident?

 

• Were you in pain when you arrived to work on the date of the accident?

 

• Were there any job duties you could not perform because of past injuries?

 

• Describe your mental and physical condition in the days before the accident?

 

• Have you had any subsequent accidents such as car crashes or slip and falls since the accident that is the subject of this hearing?

 

• If so, did you injure the same body parts in the new accident?

 

The Work Accident Itself

 

After introducing yourself and establishing the background to your workplace accident, you should turn to the accident itself and your injuries and medical treatment. In fact, the bulk of the hearing should focus on these issues.

 

Typical questions about the accident include:

 

• What was the date of the accident?

 

• Where did it happen? For example, did the incident occur on the employer’s premises, at a worksite such as a construction area, in a parking lot controlled by the employer, or when traveling for work?

 

• How did the accident happen? For example, did it result from one specific incident, repetitive motion (cumulative trauma), or an unknown cause?

 

• Did anyone else cause the accident? For example, you might have a third-party lawsuit if someone else’s negligence caused a work-related auto accident or defective equipment harmed you.

 

• Who witnessed the accident?

 

Surveillance footage or photographs of the location where you were hurt or the machinery you were using when injured can help prove this element. Similarly, property damage photographs can help show the nature of the accident and the extent of injuries in cases involving motor vehicles (cars, forklifts, tractor-trailers, etc.).

 

Reporting the Work Accident

 

The Workers Compensation Act requires you to notify your employer of the work accident and injury, in writing, within thirty days. A failure to do so could result in giving up benefits (there are some exceptions, such as actual notice or lack of prejudice to the employer)

 

To establish timely notice, expect the following questions:

 

• When did you report the work accident?

 

• Who did you report it to?

 

• How did you report it – verbally (in person or by telephone) or in writing (text, email, letter, etc.)?

 

• Did you complete a First Report of Injury?

 

• How did the employer respond to your notice?

 

• Did the employer give you a panel of physicians to choose from, or has it denied medical care?

 

You might not have been the first person to report the incident to your employer, especially if you were in severe pain or required immediate medical treatment.

 

In this situation, tell the court if a family member or co-worker reported the accident and injury, then provide as much detail about the reporting as possible.

 

If you have questions about notifying your employer, view my sample letter reporting a work injury.

 

The Injury

 

After describing how the accident happened and who you reported it to, it’s time to answer questions about your injuries.

 

Common questions about the injury include:

 

• What body parts were injured?

 

• What were you doing at that specific time (bending, crawling, lifting, etc.)?

 

• What physically happened to each of the injured body parts? For example, did they twist, spasm, tear, etc.?

 

• What did you feel?

 

• Was there a popping sensation?

 

• Did you have pain?

 

• Was there swelling?

 

• Did you have bruising?

 

• What symptoms did you have in the seconds or minutes after the accident?

 

• Did any symptoms develop later (gradually)?

 

• Did you lose a limb (only in amputation injury cases)?

 

Demonstrative evidence such as pictures of the injured body parts right after the accident can help you prove this element of your claim.

 

Medical Treatment

 

I do not recommend spending much time on your medical treatment during the workers comp hearing, particularly if Virginia has jurisdiction over your work injury claim.

 

You will submit relevant (and supporting) medical documents to the judge, who will review the records themselves. Then, rely on these papers to prove the medical elements of your claim.

 

However, you should provide some background over your medical care to suggest to the judge what they should look for when reviewing your medical designation.

 

For example, you should prepare to answer questions such as:

 

• Did you seek medical attention immediately?

 

• If you did not get medical care right away, why not

 

• What treatment have you received to date?

 

• Have you followed your doctor’s orders?

 

• What future medical care has your doctor recommended?

 

However, there are situations where you should provide more information about medical care.

 

First, in occupational disease cases, you should answer questions relating to when your doctor communicated the diagnosis of the disease and when you first found out the disease was work-related. The date of communication of the disease is equal to the date of injury – it determines when the statute of limitations starts to run.

 

Second, you should be able to clarify any inconsistencies in the medical records that could hurt you. For example, if you disagree with the initial history in the first medical note after the accident, explain why you think it is wrong – or how it happened.

 

Disability Status

 

There are some exceptions, but for the most part, you need a doctor taking you out of work to recover wage loss benefits in workers comp.

 

Expect questions such as:

 

• Has any doctor disabled you from work?

 

• Which doctor(s)?

 

• Did the doctor disable you from all work or release you to light duty?

 

• If light-duty, what is your understanding of your work restrictions?

 

• Did you explain your pre-injury job tasks to this physician?

 

• Can you perform your pre-injury job with these restrictions?

 

• If not, what tasks are you unable to do because of the restrictions?

 

• Are there any jobs that you think you can do with your limitations?

 

Return to Work

 

Direct examination is the time to explain whether you have returned to work since the injury and, if so, what difficulties you had.

 

Examples of questions include:

 

• Did you return to work after your accident?

 

• If so, did you go back to work with the pre-injury employer or a different employer?

 

• Describe the positions you have had since the injury?

 

• Did you have any problems performing these jobs? If so, what difficulties?

 

If you have not returned to work since the injury, say so.

 

Job Search (Marketing) Efforts

 

There are three situations where you do not have to look for work within your medical restrictions and limitations:

 

First, you do not have to look for work if you have a Workers Comp Award Letter providing an open (ongoing) award of wage loss benefits.

 

Second, you do not have to look for work if you seek only compensation for permanent loss of use of the injured body part (permanent partial disability benefits).

 

Third, you do not have to look for work if your physician has disabled you from all employment or stated that you could not drive because of the injury.

 

Otherwise, you must present evidence and testimony of a job search.

 

Questions on this issue may include:

 

• Have you looked for work since the injury?

 

• What resources did you use to look for jobs – online, in person, telephone calls, Virginia Employment Commission (VEC), etc.

 

• What geographic areas did you search?

 

• Were there any constraints on your schedule due to child care or transportation problems?

 

• How much time did you spend looking for work each week?

 

• How many jobs did you view each week?

 

• What would you look for when viewing a job description?

 

• How many jobs did you apply to each week?

 

• What was the result of each application?

 

• Did you have any interviews?

 

• How many interviews?

 

• Did you receive any job offers?

 

• Why do you think your job search was unsuccessful? For example, have employers commented on your restrictions?

 

I recommend bringing copies of all job applications, job descriptions you viewed and applied to, and a job search log showing when you applied to each job and the date you received a response.

 

Identify these items (and how you gathered them), then ask the judge to admit the job search documents into evidence.

 

Current Abilities

 

Usually, I end the direct examination of my client with questions about their current symptoms and how these symptoms limit their ability to work or complete activities of daily living.

 

Sample questions include:

 

• Are there any hobbies or activities you used to do that you no longer can because of the injury?

 

• What household tasks can you no longer perform?

 

• Describe your current symptoms.

 

• What do you hope to do in the future?

 

 

Help with Your Work Injury Case in Virginia

 

The questions listed in this article are just some of those you can expect to have to answer at your workers comp hearing. 

 

I recommend discussing your claim with a personal injury attorney to prepare for anything at trial. 

 

If you were hurt in a workplace accident or car crash, call me for a free consultation: (804) 251-1620 or (757) 810-5614. My personal injury law firm will help you through every stage of the workers comp claim process.