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Practice Area Newsletter

American Bar Association - Defending Liberty, Pursuing Justice

Spring 2009

Vol. 5, No. 3

Litigation

 

How to Handle a Workers' Compensation Case

The handling of a workers’ compensation claim can be deceptively complex. As with other forms of litigation, preparation will be the key to your success. Although the local rules and laws may change, there are some unassailable truths that apply in most jurisdictions. The purpose of this article is to provide you with a few considerations that are often overlooked.

Use the Initial Intake Session to Answer Future Discovery Requests
At the intake session, you begin to see the skeleton of the case. I recommend you take this opportunity to put “the meat on the bones.” As a litigator, you have propounded and answered hundreds or thousands of interrogatories. You know more or less the questions opposing counsel will propound in the interrogatories. If you do not, simply review the mass of interrogatories you have answered in the last six months. The parlance and scope of the questions will be remarkably similar. Spend the extra time to get this information at the outset. It will save you hours in the process.

I would also recommend you review the “common” items found in the requests for the production of documents. At the end of the intake form, provide your client with some homework to secure whatever documents they can obtain.

Lastly, I recommend you give your client a short preview of the upcoming deposition. By going over the interrogatory questions and then transitioning into a “mock deposition,” your client should become more comfortable with verbalizing his or her potential testimony. As many clients are intimidated with the deposition and formality of the proceeding, I firmly believe that they will perform better the more times you simulate the conditions upon which their testimony will be given. In fact, I recommend you set a “dress rehearsal” for a later time, if time and your resources permit.

Be Active With the Medical Treatment Plan Being Rendered
If you summon back to freshman chemistry, ATP (adenosine triphosphate) is known as the powerhouse of the cell. Similarly, in most workers’ compensation cases, the authorized treating physician (ATP) will likely determine the outcome of your case. I recommend that at the outset of the case, you secure a firm grasp of the past medical treatment and the recommended prognosis. This may involve some medical research on your part. Also, I would seriously consider which doctors are providing the treatment. Not all doctors have the same disposition, temperament, skill level, and attitude. I recommend you develop a form letter you can send to the physicians introducing yourself and outlining your role in the process. I would include the medical release as well and request that you be copied on any records or communication sent or received concerning the claimant. There is nothing worse than being blindsided by a medical record that completely undermines your theory. By being active in the medical treatment, you will reduce these types of unsavory surprises.

Remember, start preparing your case for trial at the intake session.

Be Proactive With Your Client Communication
The most common complaint from clients stems from the lack of communication. In the field of workers’ compensation, the hearings are often postponed. I have heard of one instance where the client was not informed of the postponement. The client showed up and had an interesting discussion with the judge. In turn, the judge had an interesting conversation with the attorney, and then with the state bar. It was not a good day for anyone. On the other hand, I have heard (and experienced) some clients who call every hour with “new information” or the “latest emergency.” These clients may call every day for months. How do attorneys strike a balance between these extremes?

It is a practice in our office to send a piece of written correspondence and make a personal phone call to our clients every 30 days at the very least. By scheduling these calls and letters, the clients are informed and they can gather their questions accordingly. I have taken this model from the doctors’ offices that treat their patients in the same fashion.

Remember, your client does not mind litigation, even if it may be against you.

Know Your Judicial Audience
In many jurisdictions, the judges presiding over your hearings are administrative law judges (ALJs). These judges are generally political appointees with ranging biases and prejudices. This is the unfortunate reality in having a single person act as the complete finder of facts and “decider” of laws. We are all human, and it just comes with the territory. Although ALJs strive to be “impartial,” it is wise to realize that they are human and subject to the same biases that we must face.

Knowing that, I recommend you do your research on the presiding judge. In our office we attack this issue as if we are evaluating a jury pool. Is it not the same analysis? Where did the judge go to school? Did he ever practice law before coming onto the bench? Does the judge play golf with opposing counsel? What is his reputation around the bar? Is she a stickler for procedure? Are there any particular practices that the judge requires in her courtroom? Will the judge be actively involved in the trial by asking questions, or will he simply wait for the transcript?

Remember, the ALJ is the judge and jury.

In handling the workers’ compensation case, speed and efficiency are paramount. The flow or stoppage of your cases will greatly depend upon your case management skills, business systems, and proficiency. Embrace technology and case management software. The utilization of technology will help you organize the intake sessions, discovery, form letters, and databases that may assist you in keeping clients (and in most instances your sanity).

Bryan C. Ramos is a principal with The Ramos Law Firm in Atlanta, Georgia. He can be reached at bryan@ramoslawfirm.com.

© Copyright 2009, American Bar Association.