If you search for the phrase “success in workers’ compensation hearings” on the Internet you will undoubtedly be directed to a plethora of websites dedicated to assisting claimants win their workers’ compensation hearings. What you will not find are the same number of articles detailing how employers can achieve success in the hearing rooms. In an Industrial Commission hearing room in Kentucky, the employee often has the advantage. Below are five tips that can help to level the playing field.
1. Have a representative from the employer present at hearings when the facts of the claim are in dispute.
The claimant is almost always present at the hearing to offer testimony and give his or her version of events. Does it not stand to reason that the employer should have a witness at the hearing to counter this testimony? This is especially important when the facts of a claim are in dispute. While written statements from supervisors and other witnesses are helpful, live testimony from an employer is always going to be more persuasive to a hearing officer, because it is hard to judge the credibility of a witness in a written statement.
In a recent seminar, a respected hearing officer from the southwestern region of the Industrial Commission ranked the quality of employer evidence he sees almost every day. First and most persuasive was testimony presented by the employer. Second was a signed affidavit. Third was a signed statement written in the hand of the witness. Fourth (and of little probative value) was a statement written in one hand and signed by another.
Clearly an employer representative cannot attend every hearing, as it would be too disruptive to the workplace. If the issue is purely a medical one, a witness is not necessary, although having the employer present in those cases is still useful to show ownership and interest in the result. When the facts are highly disputed, especially in the initial allowance of a claim, the chances of success increase dramatically when the employer has a representative present.
2. Pick and choose your battles.
Hearing officers see the same employers day after day. As a self-insured employer, do you take every issue to hearing — even those in which your evidence is weak — or do you pick and choose your battles? I can assure you that the hearing officers know which employers fall into which category and it affects credibility.
Taking everything to hearing, no matter how weak, just to see if it sticks is not a good strategy. Only take those claims to hearing where you have valid evidence in your favor and there is a legitimate issue at stake. Strive to be that employer who only contests those issues that need to be contested. The hearing officers will take note, and this may ensure your company’s success, not just at one particular hearing, but in others down the road.
3. Work with your third-party administrator (TPA) if you are a self-insured employer to make sure all of the medical records are in the state’s file.
This is, by far, the biggest complaint of all hearing officers, and it is completely justified. It is the self-insured employer’s responsibility to make sure that the hearing officer has access to all of the medical records he or she needs to make an informed decision. How can the employer expect the hearing officer to rely upon medical reports and make an evaluation if they do not have access to the records? Hearing officers get understandably irritated when they do not have all of the medical records on file or when an employer shows up at hearing and files the medical records then. Work with your TPA to make sure all of the records are available to your attorney, opposing counsel and the Industrial Commission, before the hearing. Irritating a hearing officer who is making a decision on your injured worker’s claim clearly is not a good strategy and will not turn out well for the employer. Making all information available early ensures that this will not happen.
4. Compromise your initial Permanent Partial Disability (PPD) awards in lieu of attending hearings.
The best way to guarantee success in the hearing room is to avoid it altogether. This is particularly true when the issue is which permanent partial percentage is appropriate. If you have two medical reports that are somewhat reasonable in their evaluations, always have your TPA or attorney attempt to compromise the award with claimant’s counsel in lieu of attending the hearing. Compromising PPD percentages saves the employer money on attorney’s fees and gives them some control over the end result. And let’s be honest — most of the time the hearing officer will take the two reports and come to a middle ground despite the best efforts of the employer’s attorney or TPA. One caveat, however, involves increases in permanent partials. Many times it is advisable to send a TPA or attorney to argue against increases in permanent partial disability awards as the burden on the claimant is higher and attorneys or TPA can get your company better results. Moreover, taking a hard line on increases will discourage the practice of some claimant’s representatives who file those automatically every few years.
5. If the employer suspects that the claimant is being untruthful about an aspect of his injury, surveillance is often useful.
Even the most sympathetic hearing officers do not like untruthful claimants. Surveillance video presented by employers that demonstrates that the claimant is being untruthful concerning the extent of his or her disability is crucial. Listen to the workplace chatter. Is there talk in the lunchroom that someone saw the claimant bowling, playing sports or doing strenuous yard work when he is apparently too disabled to return to work? Have you heard rumors that the claimant who is receiving permanent total disability is working? Act on these rumors and suspicions and hire an investigator to perform surveillance. Written surveillance reports are helpful, but good video is invaluable.
Finally, it is vitally important for employers to work with their TPAs and attorneys to provide them all of the factual information that they need to arm themselves to defend the company in the hearing room. Your hearing representative is only as strong as the information that you provide. Full communication is the key to achieve successful and fair results for your company at the Industrial Commission.
Caroline Diwik is an attorney in Dinsmore’s Columbus, Ohio, office, focusing her practice on general litigation and workers’ compensation law. Learn more about Diwik at www.dinsmore.com.