Builders and Contractors Exchange
Weekly Bulletin: 16 May 2005
Preparation For Workers' Compensation Litigation
By: Brian Sykes
Upon receipt of a workers' compensation case from a workers' compensation carrier, I generally contact the employer's representative who handles workers' compensation issues for the employer. Often times, the employer contact is the safety manager or whomever is designated to complete a first report of accident following an alleged work injury. I represent both the workers' compensation carrier and the employer and it is important to discuss the case with representatives from both companies to ensure that I understand the interests of my clients.
Generally, I ask the employer's representative to prepare the following information and documents so I can prepare our defenses for a case:
1) Wage information for one year prior to the alleged date of injury (or all wage information if the injured employee worked less than one year prior to the date of the alleged injury). Using the actual wages, I can generally determine the employee's pre-injury average weekly wage ("AWW"), which is required in lost time cases.
2) Wage information and dates of employment after the alleged date of injury. This information is extremely useful to determine whether there is a closed period of disability; whether the employee returned to light or full duty; and whether there is wage loss or overlaps in periods of compensation.
3) All medical records for that employee. In many cases, workers' compensation cases are determined on medical issues. It is often useful to have information about all of the employee's past and present medical treatment. For instance, even when an employee has a compensable injury, if he or she injured the same body part previously, we may be able to defend on the grounds that the employee's present disability is due to a prior medical condition rather than the alleged injury.
4) All records concerning the present workers' compensation injury as well as any prior workers' compensation claims. If the employee had a prior workers' compensation claim, it is often useful to obtain information about that claim.
5) Employee's personnel file, including application for employment and any sanctions the employee received. This information is useful to determine an employee's credibility (i.e.: was the employee honest when completing the application?). In addition, it is important to review sanctions when determining whether an employee was validly terminated for cause in termination cases.
6) In cases in which the occurrence of the alleged injury is questioned, it is important to have any witness statements and reports detailing the alleged injury. I recommend having the employee complete an injury report in his or her own handwriting; and signing and dating that report. Of course, I also like to talk to all witnesses, especially any co-workers who were observing the employee at the time of the alleged injury; and the employee's direct supervisor.
Depending upon the issues in the specific case, I may request information in addition to the above referenced documents. It is important to note that I have an attorney-client relationship with the employer, so I can generally protect the confidentiality of any documents completed in preparation for litigation. I prefer to have more information than necessary than having less than is necessary.
Questions?
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This article is meant to bring awareness to this topic and is not intended to be used as legal advice.