Preparation is often the main ingredient to a successful workers’ compensation hearing. Our North Carolina and Virginia workers’ compensation lawyer has more than 35 years of experience representing employees at their hearings. We work with you and your witnesses and doctors to prepare you for these hearings so you know what questions you can expect from us, from your employer (or your employer’s lawyer), and the worker’s compensation Commissioner assigned to your case.
It is natural to be nervous since the hearing is often where claimants win or lose their case – if your case cannot be resolved beforehand or through mediation (mandatory in North Carolina but not in Virginia). Relax. We have the experience and skills to prepare you and guide you through the claims process.
How we help prepare you and present your case
We help you by:
- Ensuring that we have the proper medical documentation we need from your treating doctors to verify your injuries or your illness, show that your job is the cause of your health disorders, and determine that you cannot work due to your injuries and that your temporary disability is likely to continue. In Virginia, the medical testimony can be presented via the medical records and opinion letters.
- In North Carolina, although the records are entered as evidence, an opinion letter is not sufficient. A sworn deposition of your relevant doctors will take place within 60 days after the Hearing to get their opinions into the record.
- We work with your doctors to make sure they can connect your work injuries to your work accident, that you were unable to work for the relevant periods, and also give an opinion that their prescribed treatment was medically necessary.
- We also work with your doctors to show, if applicable, that you have a permanent disability.
- If you were released to light duty, through you, we present your evidence of marketing your residual capacity to work via job logs.
- If your accident is completely denied as compensable, if there are witnesses, we will take their statements and help determine which ones will be helpful and make sure they are subpoenaed to your Hearing.
- Verifying many different parts of your work history and requirements including:
- Your average weekly wage in the period prior to the time of the accident.
- If we cannot agree on the average weekly wage with the defense, we would utilize pay stubs or other evidence to prove what you were paid such as cancelled checks or bank deposit logs;
- That you suffered an injury by accident on the job, with full and detailed testimony of how the accident occurred, backed up by witnesses if necessary;
- That you gave the proper notice to your employer about the accident that is the cause of your injuries.
- Anticipating and countering many of the arguments that employers and defense lawyers often assert including:
- That your injuries are not due to a pre-existing condition inasmuch as you were working full time with no issues prior to the accident;
- That you kept your medical appointments with your physicians, physical therapists, and other healthcare professionals.
- That you followed the advice of your physicians and rehabilitative healthcare professionals.
- That you did look for work once you were cleared by your doctors to work again (otherwise known as marketing your residual capacity to work)– if your employer was not in a position to accommodate your work restrictions from your injuries
- That you did not intentionally violate a known safety rule, a common defense in workers compensation cases
We normally conduct a dry run to prepare you for the questions that we will ask you and that opposing counsel may ask you (cross-examination). We’ll explain that:
- Before you answer any questions, you should be sure you fully understand the question. If you’re not sure about the question, you have the right to say that you do not understand.
- We have the right to object to any questions if they are not relevant to your case or for other reasons. You should wait until the Deputy Commissioner rules on any objections, by us or by your employer, before providing an answer.
- When answering questions from opposing counsel, for the most part, answer in as few words as possible, but do not be evasive. Be truthful.
Generally, a workers’ compensation hearing is not as confrontational as you see on TV programs or in the movies. There is not a jury that you have to be worried about. The aim of the hearing is to find out what happened to cause your injuries, go through your current health and work capabilities, and counter any defenses, so that a clear record is created and the Deputy Commissioner has what he or she needs to render a decision.
The aim is not to embarrass you or frighten you.
How should I dress for Hearing?
Generally, you should wear clothing that is respectful of being in court. However, we do have the right to show the workers’ compensation officer that you do have injuries. For example, if you still have any bruises, if you have an amputation or significant scarring, assuming the scarring is not on an area where you are already claiming something like a permanent disability, we will need to show the Deputy Commissioner the scarring.
As the saying goes, often a picture (seeing your injuries or illness) is worth more than 1,000 words (medical reports and other medical documentation).
The one thing you do absolutely have to do is be at the hearing on time. Since traffic jams and other events can delay your travel, you should plan to be at the hearing as early as possible.
Some Deputy Commissioners will either cancel the Hearing or even dismiss it if you are significantly late.
How the hearing process works
Generally, the people present at the hearing will include you, your lawyer, the employer (or someone who is an employer supervisor or manager), an attorney for the employer, the Deputy Commissioner, and a court official who helps record what everyone is saying at the hearing. In Virginia, this is usually not done with a stenographer present. Rather, the Hearing is recorded and it is transcribed at a later date.
In addition to you testifying, if necessary, we may introduce additional witnesses. These witnesses usually would be someone like an eyewitness or witnesses to counter a defense being attempted by the other side such as a safety rule violation.
Because pain and suffering are not part of the calculus in determining what you are entitled to in a workers compensation case, we typically do not call family members or friends to the Hearing, although they may accompany you for support.
Finally, in Virginia, the medical evidence is presented simply by the handing up to the Deputy Commissioner at the beginning of the Hearing of a Medical Records Designation Exhibit. There will also be a list of physical exhibits we plan to present such as check stubs, an accident report, and job logs to show your marketing efforts to look for light duty work.
Medical Evidence-Different in VA and NC
In Virginia Workers Comp Hearings, as soon as counsel come into the Hearing Room, we hand up a Medical Records Designation.
The Medical Records Designation is a carefully curated stack of the relevant medical records in your case, usually in chronological order, which will include the opinion letters of your doctors which we have prepared previously, as well as all the relevant office notes, operative notes, and other important medical documents so the Deputy Commissioner can review all of that. Opposing counsel also gets a copy of the Medical Records Designation, and opposing counsel will also hand up his or her own version of what the defense thinks are the relevant records in the same fashion.
Sometimes, we may have taken the deposition of one of your doctors sometime before the Hearing. We would also hand that transcript up as an exhibit as well, but this is rare in Virginia. The opinion letter will suffice to express your doctors’ opinions, so long as that opinion letter contains certain “magic words.”
At this point, the Commissioner may also go through each party’s Pre-Hearing Statement with the parties. This is a form that is filled out pre-Hearing which is designed to set the parameters as to what is being claimed and what the defenses to what is being claimed are.
In North Carolina, before the Hearing, the attorneys for the Parties typically prepare a Pre-Trial Order, which, among other things, contains a list of the medical record exhibits and physical exhibits, and witnesses to be presented at Hearing.
As noted previously, in North Carolina, unlike Virginia, medical reports do not suffice to prove the medical aspects of your case such as diagnosis, causation, and time out of work due to your injuries.
In North Carolina, you must have the sworn testimony of a doctor in the context of sworn deposition testimony to prove your case, which again, must be testimony using the “magic words” to pass muster and suffice as medical evidence in your case.
The depositions are supposed to take place within 60 days after the Hearing takes place. Usually, by the time the Hearing arrives, your attorney and the opposing attorney should have a date or dates to be able to tell the Deputy Commissioner as to when the doctors deposition(s) are to take place.
In North Carolina, the doctor’s charge to provide deposition testimony is typically paid for by the defense attorney; however, you will be responsible for the cost of the transcript.
Fact Witnesses and Testimony-No Opening or Closing Argument
Normally, each side has the right to question their witnesses – and also the witnesses for the opposing side.
Because the claimant (in NC, plaintiff) has the burden of proof, that party gets to present his or her evidence first.
Unlike Jury trials and other cases like you may have seen on television, there is no Opening Argument or Closing Argument by the attorneys in a workers compensation case.
After the claimant has presented his or her evidence in its entirety, the employer/insurance company presents their case.
At the conclusion of the testimony of each witness, the opposing side has the right to question each witness, otherwise known as cross-examination. Again, don’t worry. We’ll help you anticipate the questions the employer or the lawyer for the employer is likely to ask you.
The Deputy Commissioner may, during the testimony phase of the hearing ask you or other witnesses questions – normally to clarify an issue.
Once each side presents their witnesses, the opposing side can reintroduce any witnesses, such as you/the claimant, to respond to any testimony from the other side. This is known as rebuttal.
When all the testimony is complete, again, unlike jury trials you may have seen on TV, there is no closing argument, although sometimes the Commissioner may ask the Parties to prepare position statements to clarify their view of the law, particularly in more complex cases. Deadline dates will be given for the attorneys to complete their position statements.
NO DECISION is made on the day of Your Hearing.
Once again, unlike Jury trials where a gavel is banged and a verdict is rendered after all the evidence is presented, this does not happen in workers compensation cases.
The Deputy Commissioner will not make a decision on the date of the hearing, other than make evidentiary rulings as to objections to evidence and testimony during the course of the Hearing.
Rather, the Deputy Commissioner will wait until the transcript is typed up and prepare and send his or her decision in the form of a Judicial Opinion in writing to each side.
Of course, in North Carolina, the record doesn’t close until after the Commissioner has also received the doctor’s deposition transcripts. Although the depositions are supposed to take place within 60 days post-hearing, the Deputy Commissioner may not receive the typed transcripts from the Court Reporter until sometime thereafter.
While the Judicial Opinion deciding your claim is ideally supposed to be issued within 21 days after the Hearing record closes, this unfortunately rarely occurs. More typically, the Opinions come out anywhere from two to as long as eight months after the Hearing date.
The fastest time we ever received an opinion was the day after the Hearing. But this was only because the employer refused to send any witnesses to the Hearing to rebuff the claimant’s evidence, which clearly showed a compensable claim. That made the Deputy Commissioner’s job very easy.
How long do these Hearings last?
For most Hearings, the only testimony is from the Claimant, although there is sometimes one or more defense witnesses. The remainder of the evidence is medical and in Virginia it is presented via opinion letters and medical records, whereas in North Carolina, via medical records and deposition of the doctors, as previously mentioned.
In any event, other than documents, there is rarely any medical testimony from a doctor at the live Hearing.
Accordingly, most Hearings only last for a maximum of two hours.
If things are not progressing as planned at the two-hour mark, you can expect the Deputy Commissioner to declare that there is insufficient time to complete the Hearing, and that the Hearing will need to be concluded on another date.
We know of one Deputy Commissioner who insists that all Hearings be concluded within ONE hour. If not, a separate Hearing date is required to complete the Hearing.
Attorney Joe Miller has helped thousands of workers in North Carolina and Virginia obtain compensation for their medical expenses, temporary disability, and permanent disability in the amounts they deserve. To schedule a free consultation, call attorney Joe Miller, Esq., at 888-667-8295 or fill out my online contact form to schedule a free consultation. Our law office represents workers’ compensation clients on a contingency fee basis which means our success depends on your success.
Our law firm does have a way for you to provide your details of your accident and injuries if you simply want to do that electronically from the comfort and safety of your home at any time of day or night. To utilize this service, simply click here: New Electronic Case Review.
We’ll get back to you, typically within 24 hours to provide our response as to whether your situation is one where we can provide you with legal representation. If we require more information, we’ll contact you and ask for that information in order to make that determination as to whether we are the best folks to assist you. If we ultimately determine that we cannot represent or assist you, we will not leave you high and dry. We’ll do our best to provide you with other resources to assist you.
