How to Handle a Workers' Compensation Case
By Bryan C. Ramos
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.
