IPE Tools of the Trade

Tools of the Trade

Top Ten Tools of the Trade: Workers' Compensation
guest author: Valerie Foote, JD

Identify the Facts of the Case.
The first point of investigation when a file is received is whether the Claimant is considered an 'employee', and whether the state in which they are filing their claim has jurisdiction. If you can identify any issues with regard to the Claimant's status as an employee or subject matter jurisdiction, these will likely need to be resolved before the case can proceed. Once it has been established that the Claimant was an employee at the time of the injury and the court in which they are filing has jurisdiction over the case, identify the pertinent facts of the case. A great way to do this is an a memorandum to the attorney, breaking down what the injury is and the basic facts as to how it occurred, identifying the issues for litigation, and providing a rough estimate of the likely outcome of the case based on the merits. If additional avenues of investigation are apparent from the initial file materials, make a note of what they are and follow up with the attorney to see how they'd like to proceed with investigation.

Send and Respond to Discovery.
The discovery process is crucial in workers' compensation cases, because it furnishes information and documents that are necessary to build your case. Discovery is often served with the Arbitration Petition or the Answer to the same. Be diligent in following up with your client to get the information needed to respond to discovery. If they are unsure how to respond or what to provide, walk them through it. If your deadline is approaching, request an extension from opposing counsel. If the deadline has passed and you're waiting to receive discovery, send a good faith letter. The more you stay on top of the timeliness of each side's responses, the faster you will obtain the information needed to build your case.

Investigate Discovery.
Once you have the other side's discovery responses in hand, your real investigation begins. Chase down any leads that you find! Comb through discovery responses to identify where you can request records from or additional materials that you can obtain to build your case. If you receive reports, statements, or other information detrimental to your case, identify how you can obtain reports, statements, or evidence to rebut those items. Be certain to present any inconsistencies to your attorney and work with them to formulate a plan to further your investigation.

Review the Medical Records.
Throughout the course of the case, you will constantly be reviewing medical records. The course of medical care is central to workers' compensation cases. Records of pre-existing or subsequent injuries or conditions can make or break cases. Be efficient in your review. Keep the records organized so that they're easy to come back to and locate the information you need. Identify the records that are most important to your case and tab or flag them as you go along- this will save you a lot of time when Hearing comes around. Consistently request updated records to stay on top of new case developments. Identify any detrimental records and discuss with your attorney whether you should obtain reports or schedule conference calls to rebut or clarify the opinions.

Examine the Rate and Payments.
Calculate the workers' compensation rate early on, and identify whether the Claimant is being paid at the rate that you have calculated. If you calculate a higher or lower rate, communicate the discrepancy to opposing counsel. Identify whether your client should be paying or receiving benefits, and if benefits aren't being paid properly, communicate this with your attorney so that the situation can be rectified. This process is especially important in defense work, as staying on top of when benefits are due and if they are being paid at the correct rate will stave away future penalty claims.

Never stop investigating! New information will crop up throughout the course of your claim. Don't set yourself on auto pilot in the lull between your investigative period and the Hearing. Continually request supplemental discovery from opposing counsel in an effort to obtain updated information that could be useful to your case strategy. Continue to comb through the medical records for information that could lead to additional avenues of investigation. The more you develop your claim along the way, the better you'll be prepared for Hearing!

Identify and Retain Experts. As Hearing draws closer, anticipate what types of expert reports will bolster your position. Identify specific experts of each type (i.e. medical, vocational, etc.) considering the facts of your case and the geographical location of the Claimant. Discuss your recommendations with the attorney to determine how they would like to proceed, and move forward with retaining each expert. As the other side produces expert reports, bring them to your attorney's attention and question whether a rebuttal report is necessary.

Stay on top of Deadlines. I have seen expert reports get thrown out at Hearing because they were produced a day late. There are fixed deadlines in workers' compensation- keep track of your deadlines for each case and be sure to meet them. Your attorney will likely depend on you to keep them accountable to their deadlines- communicate with them regularly with regard to approaching deadlines so that a deadline is never missed.

Constantly Prepare for Hearing.
Continuously be pushing your case along to the finish line. Flag key documents as they come in so they are easy to come back to and pull as you are preparing exhibits for Hearing. By the time preparation for Hearing rolls around, you should already have a fairly clear idea of what your exhibits will be. Even if a case is in its early stages, if you can identify that certain issues may crop up at hearing (for example; penalty), pre-emptively build an exhibit to defend your position and add to it as you go along. If you are constantly anticipating and preparing for Hearing, you'll already have everything you need by the time it approaches- which means less work for you and no scrambling to prepare.

Push Settled Cases to Closure.
A good deal of workers' compensation cases are resolved through settlement. A closed file is a good file, so do what you can to push along the settlement process. Turn around the endorsed documents as quickly as possible, whether you're sending them to opposing counsel or to the court for approval. While you wait for approval, review the file for any outstanding invoices and contact the appropriate individuals to get them paid so that your file can be closed out once the approved documents are received and the settlement funds are paid. Discuss file closure with the attorney and wrap up any final tasks.

Valerie Foote is a staff attorney at Scheldrup Blades Shrock Smith P.C., where she assists in the defense of employers and insurance companies in workers' compensation. Ms. Foote joined the firm in 2013 and practices out of the West Des Moines office. She spoke at the firm's 2016 Annual Boot Camp on "Analyzing the Medical Records." Ms. Foote earned her B.A. degree from Tusculum College and her J.D. degree from Drake University Law School. She is a member of the Iowa State Bar Association.