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.
