Vecchio, Carrier & Feldman

January 16, 2012

 

 


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PREPARING FOR THE CLAIMS ADJUSTER DEPOSITION   

 

 

By Thomas P. Vecchio

 

 

Most attorneys who represent injured workers will set the deposition of the claims adjuster once a case is scheduled for trial.  Some attorneys do this as a matter of routine and simply ask questions from a standardized list.  Others have more specific questions that they would like the claims representative to answer as the case proceeds to trial.

 

This can be a nerve-wracking procedure, especially with complex cases and an aggressive opposing attorney.  Preparation is the key to a successful deposition.  The attorney representing the injured worker has the right to depose a carrier representative.  Thus, motions for protective orders are generally unsuccessful.  Adequate preparation will prevent this process from becoming a "fishing expedition," and can result in strengthening the employer/carrier's defenses as the claim proceeds to trial.

 

 

Outstanding Claims

 

The questions posed by claimant's counsel are generally limited to issues pertaining to the outstanding claims.  If a claim for authorization of an MRI, for example, has been fully resolved through timely provision of the benefit, anything more than one or two general questions about authorization of the MRI is off limits.  Claimant's counsel can generally inquire only about the outstanding claims.

 

It is therefore essential that you have an understanding of what claims are pending and what claims have been resolved.  This enables you to focus on only the outstanding issues, rather than a comprehensive review of the entire file.  

 

 

Discovery

 

Your deposition will go much more smoothly if you have a handle on what discovery has been conducted and what discovery is scheduled before the Final Hearing.  Many of the questions the claimant's attorney may ask cannot be answered until discovery has been completed. 

 

It will be helpful to have a general understanding of the deposition testimony of fact witnesses and medical experts.  You do not need to be familiar with every aspect of the testimony, but a general understanding of medical conclusions and opinions, for example, will help frame the defenses and keep you "on track."

 

 

Document Preparation

 

Prior to your deposition, prepare photocopies of the outstanding Petitions for Benefits and your Responses to Petitions for Benefits.  The attorneys who represent injured workers often ask for copies of these documents so that they can show when the Petition was received at the carrier's office and when the Response was filed.   Again, this pertains only to issues and claims that have not been resolved.

 

You should also be familiar with records that constitute "bright line" evidence, such as MMI reports from the authorized treating physicians, return-to-work records, and EMA reports.  These records often constitute mileposts in the claim which control how a claim is being adjusted and administered.

 

You should also prepare a photocopy of the DWC-1 First Report of Injury and copies of any DWC-4 Notice of Action/Change forms that may have been filed.  Also, prepare an updated copy of the payout sheet, but make sure any privileged and/or confidential information has been redacted.  You may also wish to make copies of letters sent to you by claimant's counsel.   

 

Preparation of photocopies, which can be turned over directly to the court reporter, will enable your deposition to go much more smoothly.  A significant amount of time is spent at deposition looking for records that the claimant's attorney will probably ask about.  Preparation of these records beforehand will also show claimant's counsel that you have a firm grip on the file and are fully prepared for the deposition.   

 

 

Answers to "Ultimate Questions"

 

Claimant's counsel will often ask very broad and general questions pertaining to the fundamental grounds for denying certain benefits.  A claimant's attorney may ask why the claim is being denied or why certain benefits are being denied.  Although you want to have a general understanding of the facts and circumstances regarding the denial of benefits, you are not charged with the responsibility of having an accurate and detailed understanding of the law.  That is your defense counsel's job. 

 

The claimant's attorney may try to argue with you about the law, and if such a discussion ensues, your defense counsel should object accordingly.  You do not need to prove your case in its entirety at deposition.  That is your attorney's job at trial.  A basic statement of the general grounds upon which benefits are being denied will suffice for purposes of your deposition.  It is the Judge's job to decide whether or not the claimant is entitled to benefits.  Opposing counsel cannot secure benefits by browbeating the claims adjuster at deposition.  Any such discussions should be brought to a conclusion by defense counsel.

 

 

Miscellaneous Considerations

 

Bear in mind that the deposition transcript does not reflect the passage of time.  If you take several minutes to review your file before answering a question, the transcript will only show the question followed by the answer.  The claimant's attorney cannot rush your answer.  You are free to review your file as much as possible prior to answering.

 

Depositions have become a bit more complicated with the advent of paperless claims files.  If you do not have access to a computer terminal at deposition, you should print out those items that will be relevant for your deposition.  You are not charged with having every document at your fingertips throughout the deposition.  If it is absolutely essential for you to have a particular record in front of you before the deposition can proceed, the parties can always take a break whereupon the record can be printed.  Most records can simply be printed and sent to the court reporter after the deposition. 

 

If a mistake has been made with respect to administration of the claim or provision of benefits, feel free to acknowledge that at deposition.  The mistake will be apparent to claimant's counsel; this is probably why the deposition is being taken.  Once a mistake has been acknowledged and rectified, the Judge will tend to view every other aspect of your testimony as completely forthcoming and credible.

 

Finally, if your attorney objects to any questions, wait for instructions prior to answering.  Rules governing objections do not apply as clearly in workers' compensation as in general civil proceedings, since depositions in workers' compensation claims are often moved into evidence as direct proof.  Arguments can certainly be raised regarding the propriety of certain questions and objections, but the safest course of action is to wait for your attorney's instructions.  Your attorney may raise an objection for one reason or another, but still allow you to answer the question.  

 

 

Conclusion

 

Attorneys who represent injured workers often set the adjuster's deposition purely for purposes of intimidation.  The file materials may be sufficient to answer every question they raise at deposition, but they set the deposition anyway in an effort to draw attention to the file, enhance the value of settlement or the attorney's fee, and promote prompt resolution of the claim or issue.  Bear in mind that adequate preparation for deposition is the single best way to diffuse this tactic, prepare defenses, and enable the claim to settle within a reasonable range.

 


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Thomas P. Vecchio
 

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