What Questions Can Be Asked During A Workers Comp Deposition?

During A Workers Comp Deposition Are There Certain Questions You Can Ask?

Many workers comp attorneys will tell their new clients that they can expect to be deposed and that they should not go into the deposition without first consulting with an attorney. This article will address some of the questions that your attorney may ask you during a workers comp deposition and highlight some of the pitfalls that non-attorneys face at deposition. It is important to understand the process along with what questions you should and should not ask during a deposition.

Deposition Process

The idea is to go into the deposition as prepared as possible. You should be aware that your attorney may sit with you, or they may just tell you to wait in another room and then call you into the deposition room when he/she is ready for you. It all depends on the specific circumstances of your case and how your lawyer practices. Your attorney may go into the deposition room with you, but he/she may also want you to wait outside while they talk to the insurance company’s attorney. This is generally done so that your attorney can find out what sort of settlement offer or defense they are going to raise at the deposition. If the insurance representative knows who is being deposed, they may try to limit the testimony so as not to damage their case.

Your attorney will typically confer with you before either of these scenarios take place. Once your deposition is over, he/she will give you a quick debriefing on what took place, what was covered during the deposition, and what additional information needs to be gathered for your case.

If your attorney wants to see you immediately after the deposition, it is generally because the deposition has gone well and he/she needs you to fill in some blanks or obtain additional information post-deposition. If your attorney does not want to talk with you until later, it may be because the deposition did not go as planned and he/she needs time to think about the next steps in your case.

Types of Questions

There are three main types of deposition questions that you can expect during a workers comp deposition: direct, open-ended, and hypothetical questions.

  • Direct Questions – These are usually very specific “yes or no” type of questions where all your attorney needs is for you to answer with a “yes” or “no.”
  • Open-Ended Questions – These are questions that cannot be answered with a simple yes/no response. They are typically very open-ended and ask the deponent to explain what they mean. Hypothetical Questions – These are questions where an attorney will ask you about various scenarios, what your actions would be if these scenarios were to take place, and then the attorney will conclude your answers.

All deposition questions are directed towards information that is relevant to your case. If you do not know the answer to a deposition question, simply state that you do not know the answer and try to direct the attorney back towards an open-ended question that you feel more comfortable answering.

Mistakes During Depositions

There are a few common mistakes attorneys see from non-attorneys during depositions:

  • The Deponent is Overly Aggressive – This typically happens when the deponent is nervous or has not had a deposition before. Remember, there is a fine line between being assertive and being overly aggressive. The deponent needs to feel comfortable enough answering the questions, but not so much that they start challenging the attorney’s line of questioning.
  • The Deponent is Overly Passive – If a deponent sits back and does not answer a question, then they have become passive during the deposition. These types of depositions typically result in follow-up questions by the attorney and prolong the deposition unnecessarily.
  • The Deponent Speaks in a Monotone Voice – This happens when a deponent is not confident or comfortable enough to speak up during the deposition. The deponent should do his/her best to answer all questions with their voice at an appropriate volume and pace. If you feel that you are speaking too softly, then simply ask the attorney if you can speak up a little bit.
  • The Deponent Disputes Questions Because of Their Own Opinion – You should answer deposition questions based on what you know or observed during your time working with another individual. If an attorney asks you about someone else’s opinion, then go ahead and give that person’s opinion, but remember that the attorney is not interested in your personal opinions about someone else’s opinion.
  • The Deponent Speaks Over Other Witnesses – Witnesses should answer questions only when they are asked to do so by their attorney or attorneys. If you see that another witness is talking over others during a deposition, then simply raise your hand to gain their attention and politely ask if you can finish answering your question first before the other witnesses start speaking again.

The deposition of a doctor in a workers’ compensation case is an opportunity for the plaintiff’s attorney to ask questions relevant to the case and also provide notice to the defense and all future deponents of certain facts, witnesses, and items in their possession or knowledge. Such depositions can be taken at any time after a suit has been filed against the doctor, typically two years after the date of the accident or injury. The plaintiff’s attorney must give written notice to the doctor or his/her representative at least ten days before the deposition. The purpose of this notice is to inform them that a deposition will be taken, where it will take place, and who will be present. During the deposition, anything that is said and any documents and objects that were prepared by the defendant (defendant’s name) may be used as evidence at trial; however, neither party may talk about potential settlements or possible pleas.

Questions To Ask During Deposition

Pertinent questions that should be asked during a workers’ compensation deposition include:

1. What was the patient’s (patient’s name) chief complaint about this visit?

2. What physical systems did the patient complain of as areas of pain or discomfort, and what objective findings were noted during your examination?

3. Did you observe any abnormalities that would relate to the injury alleged in the workers’ compensation claim?

The answers provide insight into how the defendant’s medical reports cannot be trusted and that the patient is not credible.

4. How long did you spend with this patient?

5. Do you remember what the weather was like on this particular day?

Questions To Not Ask During Deposition

1. What type of practice do you have?

2. Where did you get your medical degree?

3. What type of malpractice insurance do you carry?

The questions should be relevant to the case and avoid any personal matters. Any information that could lead the defense to discover information about other cases is also excluded. The plaintiff’s attorney should ask for copies of all documents in the defendant’s possession or knowledge.

  • Have you ever been deposed in a workers’ compensation case?
  • Have you ever testified in a civil, criminal, or administrative case involving the claimant who is the subject of this deposition?

The answers to these questions reveal credibility issues and may cause them to be excluded from future cases.

  • How much training and education have you had in the area of workers’ compensation, specifically concerning neck and back injuries?
  • Do you agree or disagree that a majority of your patients are injured on the job?

The answers to these questions reveal how the defendant has prejudged his/her patient and can be used at trial.

Workers Comp Review

When lawyers are asked about their greatest success in worker’s compensation claims, they often point to the number of cases that they won or settled for a substantial verdict. However, an equally significant measure of success is how many clients never even filed a claim because of fear, lack of knowledge about the process, and what benefits are available. One way to avoid these failures is by encouraging worker education about the real benefits of worker’s compensation, how to file a claim, and the potential costs involved. Lawyers must prepare their clients for what they can expect during a case. The first thing you must do before engaging your client in any work comp case is to unearth his or her fears about the process. These fears may include:

  • Not knowing how to file a claim;
  • Fear of losing your job if you file for work comp benefits; and,
  • Not understanding what benefits are available under work comp law.

For many people, it’s like learning a new language. People who never filed a claim or who were denied benefits may be afraid of what lies ahead and the perceived costs. These fears often deter individuals from filing a claim and sometimes lead them to seek treatment elsewhere, such as their physician.

Overall, it is important to focus on the crucial questions that should be asked, questions that should be avoided, and the deposition process to successfully go through a deposition with your lawyer.

Matt McWilliams
matt@mcwilliamsmedia.com

Deposition Academy is an online website created to guide those in the legal videographer industry or those interested in starting a legal videography business. The site has expanded to cover a variety of legal topics that are related to depositions and the deposition process. Our team of writers have written for a variety of legal blogs and website.



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