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The following information is intended for any injured worker about to be deposed in their California workers’ compensation case.
In the California workers’ compensation system, the employer is entitled to depose an injured worker who alleges injury and a right to benefits of medical treatment and/or money for compensation. This is a common practice for both denied and accepted claims. A workers’ compensation deposition is a legal proceeding in which the employer, or rather their insurance company, through their attorney, ask an injured worker questions under oath. By taking an oath, an injured worker swears to tell the truth.
All testimony should be given from memory. No documents should be brought to the deposition, unless informed differently by the injured worker’s attorney. However, it is often specifically requested that the injured worker bring their photo identification, usually a driver’s license or consulate issued identification card, for which the injured worker should bring unless objected to by their attorney.
An injured worker is entitled to reasonable mileage reimbursement for their round-trip attendance at the deposition as well as reasonable expenses for transportation, meals, and lodging, which would usually require travel of some length, such as out-of-state, or for medical convenience. Should the injured worker be working and have lost any wages in order to attend the deposition, they are entitled to full reimbursement.
Depositions are conducted in informal settings, which are usually the law offices of the attorney for the employer and/or insurance carrier. Present at the proceeding are usually the defense attorney, a court reporter, the injured worker, and hopefully an attorney for the injured worker, if they have retained one. If an interpreter is necessary, a Board-certified interpreter will be provided. Also, in some instances, a human resource representative will be present, especially with larger employers in denied cases.
There is often a period of preparation right before the actual deposition, usually no longer than one hour. During this preparation, the injured worker’s attorney often discusses in private the rules for the deposition and provides recommendations on how to answer questions. This is a privileged and confidential communication between an attorney and their client for which the attorney has a duty to not repeat. During this preparation, the rules for the proceeding will likely be described by your attorney. These same admonitions usually are repeated by defense counsel at the beginning of the deposition.
California workers’ compensation laws are a no-fault system, which means that typically, even if an injured worker is at fault for their injury, they are entitled to workers’ compensation benefits. Accordingly, telling the truth often has little impact on the right to these benefits and the importance of telling the truth should be understood.
The court reporter will take everything down that is spoken on the record. The court reporter will not record any response that is not verbal. For example, pointing to a part of the body, a shrugging of the shoulders, and “Un-Uh” and “Uh-Huh” are not acceptable. Language is a habit and the attorneys will typically prompt the injured worker to obtain the necessary verbal response. If the injured worker says “Uh-Huh,” an attorney may ask immediately if that is a “Yes.” If the injured worker points to their lower back, an attorney may say “Let the record reflect that the applicant is pointing to their lower back.”
The court reporter will prepare a booklet after the deposition has concluded and it will take usually a couple of weeks to be received. The injured worker is entitled to a copy of the transcript free of charge. Once it is received, the injured worker will have an agreed to amount of days (30 – 60) to review the transcript for accuracy and make any changes or corrections they feel are necessary in order to reflect the truth. It may be that the court reporter got it wrong or maybe the injured worker remembers a detail differently after a few days to reflect. It is usually cautioned that any changes may be commented upon before a judge and that significant changes could affect the injured worker’s credibility.
The defense attorney will be asking questions of the injured worker, who will be obligated to answer with the truth. If at any time the injured worker does not understand the question being asked, the injured worker should make it known so that the question may be explained or rephrased.
Never should the injured worker interrupt the question in a deposition. This is not a conversation, this is a legal proceeding. Interruptions by the injured worker will frustrate the court reporter, who will find it impossible to record two voices at once. It will also prevent their attorney from the opportunity to object and it will likely volunteer more information than is being asked. A good attorney should caution an injured worker who interrupts the question.
Injured workers who have requested an interpreter should utilize the interpreter in the language for which they are more comfortable. Although many injured workers who request an interpreter know some English, they should not focus on the English question, but the translated question. Often an answer is given that does not make sense when the injured worker fails to focus on the English, rather than the translation.
During the course of the deposition, the injured worker is able to provide estimates. In fact, the defense attorney will be entitled to their best estimate. However, no one wants the injured worker to guess. The difference between a guess and an estimate is that an estimate is based on personal observation, whereas a guess involves no personal observation. The simple and common example is to ask an injured worker how long is the table in the room. Their answer, which often is way off, is a permissible estimate. However, when asked how long is the table in the next room that they have never been to, any answer would be an impermissible guess.
Any good attorney should suggest to the injured worker that if they do provide an estimate, then they should use language of approximation. For example, when estimating, just saying that a table is 12 feet is not recommended. Rather, say “about 12 feet,” or “more or less 12 feet,” or “I am not certain, but maybe 12 feet.” It is recommended that when the injured worker does provide an approximation or an estimate that they make it clear for the record that they are doing so.
If facts are not easily recalled, a perfectly fine answer is “I don’t remember.” It is recommended to not strain one’s memory if details cannot be recalled. It is reasonable to not remember everything and if one does provide an answer that is difficult to remember, it is recommended to indicate that one’s memory is not so certain.
A deposition is not an interrogation. The injured worker can stop and take a break at any time. They can stand up during questioning to alleviate pain. They can also confer with their attorney privately and confidentially by indicating they want to do so.
There are some times that the injured worker may not wish to answer a question truthfully. For example, if an injured worker were asked if they ever committed an unsolved murder and there was something about their past that they would not want to answer the question truthfully. In that instance, the injured worker can kick everyone out of the room and discuss privately their concerns with their attorney. More realistically, there are instances were injured workers are receiving benefits and working, although they are not entitled to both. An attorney can advise the injured worker on how to proceed and even issue an objection on behalf of the injured worker so that the question is not answered at the deposition. The most important thing for the injured worker to do is to remember to request to talk to their attorney before answering any question if they have such a concern in giving a truthful answer.
During the course of the deposition, the injured worker’s attorney may have reason to issue an objection. Should at any time the injured worker hear their attorney say “Objection,” they should stop talking and wait. They should wait to hear their attorney either say that the injured worker may answer or that they are instructed to not answer. Objections are calculated by the attorney to serve the injured worker’s best interests during the deposition and in future proceedings.
At the start of the deposition, the injured worker will be sworn in by the court reporter. They will raise there right hand and be sworn in, typically as follows: “Do you affirm that the testimony you are about to give will be the truth, the whole truth and nothing but the truth?"
The injured worker will likely be asked for their full name and then asked if they understand that they have just been placed under oath by the court reporter. The defense attorney will then likely impress the serious nature of the injured worker’s duty to tell the truth in that they are susceptible to the penalty of perjury. Perjury is willfully lying under oath and is a felony punishable by up to 3 years. However, it should be understood by the injured worker that perjury requires willful lying and that honest errors and a mistaken account is not perjury.
Next, the injured worker may be asked if they have taken any alcohol, drugs, or medications within the last 24 hours. This question is not asked because some substance abuse habit is suspected. Rather, this question is asked in order to confirm that the injured worker is clear-headed and capable of providing accurate testimony. If there is any problem with the injured worker’s clarity, the deposition can be rescheduled.
The questions asked by a defense attorney typically encompass the following subject-matter: background information, employment history, description of the injury, prior injuries and/or conditions, and current conditions. There is no set or required format for the sequence of the questions, but these subject-matters are typically always asked.
Background information usually consists of where one was born, where they have lived in the past 10 years, their marriage status, any children, identification of all household members, financial obligations, present income, whether they served in the military, and whether they were convicted of a felony.
During the background information testimony, some latitude is given to the relevance of the questions; however, I always make sure to protect an injured worker’s privacy by not allowing their Social Security number on the record, by not allowing the driver’s license number on the record, and by not allowing identification of minor children by name. For cases involving a psychiatric injury, the law is such that all questions are typically found relevant. For cases not involving psychiatric injury, the questions are more limited and likely less harassing.
Employment history will likely include the details of the injured worker’s last three employers or up to the last 10 years of employment. These details will include where one worked, their job title, job duties, supervisor’s name, rate of pay, and why the job ended.
A description of the injury will be asked of the injured worker. If the injury happened on one specific date, they will be asked the details of how it happened. If the injury happened over a period of time through what is called cumulative trauma, they will be asked when they first noticed symptoms. They will be asked if the injury was witnessed by co-workers and if it was reported to a supervisor. The injured worker will also be asked about what treatment they received.
Any prior injuries or prior medical conditions are relevant in California workers’ compensation as they have the potential to reduce the value of permanent disability found by a doctor. Whether there were prior injuries to the same body parts affected by a work injury or medical conditions such as diabetes or hypertension will likely be asked of the injured worker.
An injured worker should be reminded of two things. First, a doctor is likely going to be able to determine any prior injuries or medical conditions whether an injured worker is truthful or not. Second, knowledge of an injury technically requires that an injured worker be told that they were injured by a doctor. If asked whether they were injured in the past, knowledge that they were injured requires a medical opinion. If an injured worker has been told by a doctor that they were injured, then they can answer the question, otherwise a minor accident for which they received no medical treatment would likely not qualify as an injury and all they would be qualified to comment on are symptoms or complaints from the accident.
Current conditions usually involve testimony by the injured worker on how they are presently feeling following the injury and any treatment. Usually a pain scale of 1 to 10, 10 being the most painful experience imaginable, is used and the injured worker is asked how they would rate the pain under a scale of 1 to 10. Also, the injured worker will be asked what activities of daily living are affected by the work injury. Activities of daily living are activities that every person is expected to have to do. These activities include walking, sleeping, cooking, cleaning, personal hygiene, and driving. Where these activities are impacted by the work injury, more value is allowed under the guidelines that doctors use. Accordingly, it is recommended to not downplay any effect that a work injury has on these activities of daily living.
What is really going on at workers’ compensation depositions is that the employer and their insurance carrier are trying to locate any medical records on the injured worker. That is because what an injured worker says about their own medical condition matters often little compared to what doctors say about them. The defense will seek the location of all medical treatment received by the injured worker in order to ensure that any medical opinion is thorough and comprehensive. As such, what one says at a workers’ compensation deposition is often not all that critical to the success of their case.
Further, an injured worker’s deposition transcript, which is the final product from the court reporter, is not even admissible in court unless it is used to impeach the injured worker, which means to show that their testimony is inconsistent or that they are lying in court. As such, there is often not much benefit for an injured worker’s attorney to ask questions of the injured worker. An injured worker’s attorney may ask questions often to clarify an answer or to give the injured worker an opportunity to explain inconsistencies, but any questioning beyond what has already been asked would volunteer more information than asked.
Following the conclusion of the deposition, sometimes an investigator with a video camera is hired to follow the injured worker. This can happen in both accepted and denied cases, but usually the latter. Questions about the details of the injured worker’s car by make, model, and color during the deposition can indicate that this may be done. It is always recommended for one to not over exert themselves in public with an active workers’ compensation case. However, it has been my experience that doctors require extreme video evidence in order change their opinions and often would indicate that the injured worker could be working through the pain or simply having a good day.
Finally, it can be expected that often a settlement offer may be communicated at a deposition. Usually, such an offer is too low and given in an effort to quickly settle the employer’s liability. Often a case is not ready for settlement by the time of the deposition. Typically, an injured worker should take advantage of the medical treatment and allow their medical condition to become stable before settling their case. However, the injured worker, at all times, retains the right to accept or reject an offer and the attorney must communicate any offer. A good attorney will always provide recommendations for rejecting, accepting, or countering any settlement offer.
Workers' Compensation Attorney