PREPARING THE CLAIMANT’S DOCTOR TO TESTIFY
By Dennis R. Kurth, Attorney
One of the most important duties of the workers’ compensation claimant’s lawyer is preparing the claimant’s doctor to testify before the ALJ at the Industrial Commission. Most cases litigated before the Commission require expert medical testimony to meet the claimant’s burden of proof that an injury occurred, that special statutory causation requirements are met or that further treatment is necessary. Dealing with the many and various physicians who might be involved in workers’ compensation cases requires some considerable people skills in addition to familiarity with the statute and case law.
In workers’ compensation litigation, cases are rarely litigated to a conclusion in one hearing. Because of concerns related to the budget (the Commission pays the doctor to testify) lay witness and claimant testimony is always scheduled first and then medical testimony in follow-up hearings with the claimant’s doctor going first. It is absolutely critical that the claimant’s doctor be carefully prepared to testify if the case is to be successful.
Defense attorneys on workers’ compensation cases do not have such concerns with their medical witnesses, practically all of whom were hand-picked by the carrier to do “independent” medical exams and to defend their opinions in court. They are generally always well-paid and well-prepared to do so.
It is far different and far more difficult for claimant lawyers who most often litigate the case with the doctor who came with the claimant.
There is no substitute for a personal meeting with the claimants’ doctor once his or her testimony is scheduled but not too far in advance that the doctor doesn’t remember what you discussed with him or or her. It is essential to make sure that the physician has all of the records in evidence, including the IME report. No doctor wants to be surprised and embarrassed on cross-exam because of records they didn’t have.
If there are special statutory requirements as with heart, mental or hernia cases, go over the statute with the doctor and give them a copy of the statutory language. Explain how their testimony will help meet your burden of proof. Reassure them that the workers’ comp law does not require proof that an anatomic change occurred if a pre-existing condition is aggravated by work activity, medical treatment is required and disability from work results. Tell them the weaknesses of your case. Explain the hearing process so that they feel comfortable testifying. The cost of such expert witness preparation varies from doctor to doctor but is well worth it. It is almost always well-appreciated by the doctor.
For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.
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