A deposition is a testimony under oath outside of a courtroom prior to trial. In workers' compensation, the injured worker's deposition is often the only deposition taken.
An attorney for the insurance company, known as a defense attorney, conducts the injured worker's deposition. Also present is a court reporter to take down the testimony and create a transcript for the injured worker to review after the deposition.
The insurance company will pay for the cost of an attorney for the injured worker, so the worker's attorney will also be present.
The employer is also allowed to have a representative present.
The deposition transcript has two primary uses:
- to be reviewed by the doctor who evaluates the workplace injury for permanent disability.
- to make sure the injured worker is telling the same story at trial that he or she told at the deposition
The defense attorney is only allowed to take one deposition of an injured worker.
In workers' compensation, there may also be a deposition of the evaluating doctor, the Agreed Medical Evaluator (AME), or the Qualified Medical Evaluator (QME), if there are questions about the doctor's report.
In this article, our California personal injury attorneys will explain:
- 1. What is a deposition?
- 2. Deposition of the injured worker
- 3. Deposition procedure
- 4. What can and will be asked at a workers' compensation deposition?
- 5. What happens to the deposition transcript?
- 6. Depositions of doctors and witnesses
- 7. The importance of a deposition to an injured worker's claim
A deposition is the questioning of a witness under oath outside of a courtroom.
The injured worker's deposition is the most important deposition taken in a workers' compensation case. Other than medical reporting, it is the main way for the insurance company to learn about the worker's injury.
Any party in a workers' compensation case can take a deposition.1 This means both the injured worker and insurance company can question witnesses under oath before the case goes to trial. Supervisors and coworkers are the most common witnesses. In death cases, the surviving relatives who are claiming death benefits may be deposed.
However, it is rare for witnesses to be deposed in California workers' compensation.
Other than the injured worker's deposition, the most common deposition is of the doctor who evaluates the injured worker for temporary disability and permanent disability. Doctors do not testify at trial. Therefore, the only way to have a doctor's “testimony” is through a deposition.
The transcript of the doctor's deposition can be submitted at trial.
The rules for taking a deposition in a workers' compensation case are taken from civil court rules.2
Before an insurance company can take the deposition of the injured worker, an Application for Adjudication of Claim must be filed.3 If not, there is no legal authority to schedule it. The application can be filed by the defense attorney or the injured employee.
An application is a part of filing a claim for workers' compensation benefits.
The deposition of an injured worker is to:
- learn about the claim
- obtain specific information about dates, time, and witnesses to investigate the claim
- compare the injured worker's testimony with information the insurance company has from other sources4
If an insurance company takes a deposition of an injured worker, the injured worker is entitled to:
- be given transportation (mileage reimbursement), meals, and lodging, if necessary, for the deposition
- reimbursement for lost wages for attending the deposition
- a copy of the deposition transcript
- payment for an attorney to represent the injured worker at the deposition
- an interpreter, if required.5
In addition to the costs of the injured worker's attorney and interpreter, there is also the cost of the court reporter. The court reporter creates a written recording of the deposition and prepares a transcript. The insurance company pays for the court reporter.
If the injured worker refuses to attend his or her deposition, the case can be suspended.6 The insurance company has a right to investigate the claim.
The worker may be asked to settle his or her workers' comp claim at the deposition with a Compromise and Release. It is one of the few times outside of a status conference, mandatory settlement conference, or trial where all the parties in the case will meet in person.
Example: Joan's case has been denied. At her deposition, she is asked if she wants to settle her claim with a Compromise and Release for $15,000.
Joan declines because she believes her injury is more severe than the value of the offer. Her testimony will be taken, and she will likely be evaluated by a doctor to determine if she has a work injury, and if so, how severe it is.
The injured worker is sent a notice of deposition indicating a date, time, and location of the deposition, which will generally take place at the insurance company attorney's office.
The only people that will be present are
- the attorney for the insurance company,
- the court reporter,
- the injured worker, and
- an employer representative.
Even though the insurance company's attorney may ask personal questions, the employer representative still has a right to attend.
To exclude the representative, the employee must show that he or she would be subjected to unwarranted annoyance, embarrassment, or oppression.7 It may be possible to exclude that representative if the employee representative is the person who caused the worker's injury.8
Example: Lance files a claim for a psychiatric injury. The insurance company schedules Lance's deposition and in attendance is Lance's manager, Greg. Lance does not want to answer questions about his medical and psychiatric history with Greg in the room.
However, Greg did not cause Lance's psychiatric injury. Lance cannot show good reason why Greg cannot be present.
- The injured worker will be sworn in, meaning that he or she agrees to tell the truth. Lying in a deposition under oath is perjury and can lead to a fine or time in jail. It is the same as testifying in court.
- As the attorney is asking questions, the court reporter will record the questions and answers.
- The employer representative cannot speak in the deposition. The only people who can speak are the worker and the attorneys.
- The deposition can last from an hour to all day, depending on the claimed injury and the style and strategy of the attorney.
- The injured worker can request to take a break at any point. However, the attorney may ask for the answer to any pending question before the worker takes a break.
- After the deposition, the court reporter will send a transcript to the injured worker. He or she will have an opportunity to review the transcript and make any changes.
- Changes can include any information he or she thinks was taken down incorrectly by the court reporter or if there are any changes to his or her testimony.
- The worker will not be subject to perjury for making changes to his or her testimony while reviewing the transcript.
- Whether the injured worker makes any changes or not, he or she will need to sign the transcript. Signing indicates the transcript has been reviewed. It is sent to the insurance company's attorney to be kept until the case is over.
The insurance company attorney will ask about:
- the details of the injury
- prior work history
- how the injury occurred
- medical history
- light duty / modified work
- basic information including living and family situation
- treatment the worker received after the injury
- job duties and tasks
- current complaints
- medical treatment since the injury
- if he or she may be an independent contractor
- if he or she has been terminated
- information that could determine if he or she is undocumented
- any other information that may be relevant to the injury
From the testimony, the attorney may obtain records related to the worker's prior employment and medical providers.
If an injured worker refuses to answer a question, the attorney can ask a judge to order the worker do so.9
The scope of questions the attorney can ask is very broad. The questions are limited by whether they “reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement.”10
Example: Alex is asked about medical conditions that he feels are unrelated to his injury. He does not want to answer them. They are embarrassing to him.
It is unlikely Alex will be able to avoid answering these questions as the defense attorney has a right to ask a broad range of questions to defend the claim.
The defense attorney is not on the injured worker's side. Therefore, the questions that are asked will be an attempt to minimize the worker's injury. The defense attorney may also try to place blame for the condition on non-work-related health issues.
The transcript is given to the doctor who evaluates the injured worker for temporary and permanent disability.
During the deposition, the defense attorney will have tried to minimize the injury and point to other causes. By having the doctor review the deposition transcript, the defense attorney can force the doctor to consider the issues favorable to the insurance company.
The doctor will also ask the injured worker about the injury at the examination. But any difference between the deposition transcript and what the injured worker tells the doctor can hurt the injured worker's credibility.
The defense attorney will also use the transcript if the case goes to trial.
If the injured worker's testimony at trial is different than what he or she said in the deposition, it will be used to discredit the injured worker's testimony. He or she will be asked why he or she changed his or her testimony.
Therefore, it is essential to give clear and precise answers that do not differ from the answers he or she provided during the deposition.
If any party has questions about a doctor's report, either one can depose the doctor. Whatever answers the doctor gives can later be submitted at trial through the transcript.
Example: Mike suffered a knee injury at work. He is evaluated by Dr. Smith. When Dr. Smith is deposed, the defense attorney asks the doctor about records that show Mike had a knee injury playing volleyball six years ago.
The attorney wants the doctor to address whether this old injury may be the cause of Mike's current knee problems.
Whatever the doctor's testimony, the transcript will be part of the evidence for trial.
The insurance company will pay the costs to depose a doctor, including the doctor's time, and they will also pay the court reporter's costs.11
The injured worker will have to pay the cost of the court reporter if he or she wants to depose a witness. Witness depositions are very rare in workers' compensation.
The deposition is one of the primary ways the insurance company will learn about the extent of the injury and medical history.
It can determine how the insurance company values the case and how strongly it will dispute the claim.
The more the insurance company believes the injured worker is not telling the truth, the harder it may be to obtain benefits.
Therefore, a deposition is an important event in a workers' compensation case.
Call us for help...
For help with filing a workers compensation claim in Calfornia, completing workers comp forms or appealing a denial of benefits, contact us at (855) LAW-FIRM. Our firm helps police officers, firefighters and other workers to get compensation for their job-related injuries.
Cal. Code. Civ. Pro. § 2025 et. al.
Yee-Sanchez v. Permanente Medical Group (2003) 68 Cal. Comp. Cases 637
Hanna, 2-25 CA Law of Employee Injuries & Workers' Comp § 25.41 (2018)
Cal. Lab. Code § 5710(b)
Hunter v. Oroville Elem. Sch., 2014 Cal. Wrk. Comp. P.D. LEXIS 459
Padilla v. WCAB (2011) 76 Cal. Comp. Cases 191, 192
County of San Bernardino, Department of Risk Management v. WCAB (2014) 79 Cal. Comp. Cases 1200
Allison v. WCAB (1999) 72 Cal. App. 4th 654, 84 Cal. Rptr. 2d 915
Los Angeles Unified School Dist. v. Trustees of Southern California IBEW-NECA Pension Plan, 187 Cal. App. 4th 621, 627
Cal. Code Regs., tit. 8, § 10727