Laboring Through A Worker's Compensation Case


By:      Christopher M. Brennan[1] As a young attorney straight out of law school, I was itching to get some litigation experience. Unfortunately, the realities of the legal profession struck me hard: cases rarely go to trial. Then I received a phone call from an injured worker. He had hurt his back at work and the Division of Workers’ Compensation had denied his claim. I spent hours studying the rules and statutes governing workers’ compensation cases and decided to take the case. Workers’ compensation is a great field for young attorneys or any attorney wishing to get litigation experience. It has all the makings of a trial: discovery, depositions, direct examinations, cross examinations, opening arguments and closing arguments. Unfortunately, due to the idiosyncrasies of workers ’ compensation cases, some attorneys may shy away from this much-needed area of the law. The purpose of this article is to give a very general overview of a workers’ compensation case from beginning to end. I will begin with the notice requirements imposed on the employee. I will then move into the final determination by the Division of Workers’ Compensation, and the different tribunals in which workers’ compensation attorneys practice. I will then move into preparing the workers’ compensation case, and I will ultimately close with getting paid.  Every Case has its Beginning  As expected, every workers’ compensation case begins with an injury. This injury may be as small as a cut to as serious as a death. Whenever an injury occurs at work, the employee must act quickly to ensure his or her rights to workers’ compensation benefits are protected. Wyoming requires that an injury be reported to the employer “as soon as practical, but not later than seventy-two (72) hours after the general nature of the injury became apparent.”[2]  The employee’s duty does not stop there, however. The employee must also file an injury report with the employer and the Division of Workers’ Compensation (“Division”) within ten days after the injury became apparent.[3] Failure to make these reports is not a death knell to an employee’s case, but it does present some serious challenged for any attorney moving forward. If an employee fails to report the injury to the employer and fails to file an injury report with the Division, the law presumes that the claim shall be denied, subject to the employee’s ability to prove, by clear and convincing evidence a lack of prejudice to the employer or the Division in investigating and monitoring treatment.[4] It is extremely important for any attorney handling a workers’ compensation cold call to immediately as if the employee gave written notice to their employer and filed a “Report of Injury” form with the Division. The “Final Determination”: An attorney’s invitation to the dance. Unlike civil cases, which begin with a petition or a complaint, workers’ compensation matters begin when the Division issues its final determination. Upon receipt of every injury report, claim for medical care, claim for disability benefits, or any other matter requiring Division approval, the Division has sixty days to issue a final determination and send it to the employer and the employee.[5] The Division’s final determination will either approve or deny the employee’s claim for benefits. If the claim is denied, it is imperative that you act quickly to preserve your client’s case. Upon the issuance of a final determination, an interested party has a right to request a hearing.[6] The hearing request must be in writing and must be postmarked within fifteen days of the date the Division mailed the final determination.[7] The request for a hearing should specifically state that the employee objects to the Division’s final determination and requests a hearing on all matters affected by the final determination. The Division will then refer the matter for hearing in front of the proper hearing authority. As an attorney, it is important to note that the final determination is an attorney’s formal invitation to “dance” with the Division. The moment a final determination is issued, the Claimant is entitled to legal representation, regardless of whether a formal request for a contested case is filed.[8] The issuance of the final determination triggers the attorney to receive a reasonable fee for the services he or she provides.[9] Who hears the case? A workers’ compensation case can be heard by the medical commission or the office of administrative hearings. The medical commission selects a medical hearing panel comprised of three members of the commission and a hearing officer.[10] The medical commission is comprised of eleven health care providers, who rotate participating in the medical hearing panels. The medical commission only hears “medically contested case[s].” Medically contested cases fall into four categories: impairment ratings, the right to continue temporary total disability benefits, permanent total disability, and any other issue where the primary issue is the resolution of conflicting evidence of medical diagnosis, prognosis, or the reasonableness and appropriateness of fees charged.[11] On the other hand, the office of administrative hearings hears cases whose issues are legal in nature. Typical issues in front of the office of administrative hearings are legal causation, whether the injury meets the statutory definition of injury, and any other matter not falling under the auspices of the medical commission. Preparing to Win After the referral for the hearing is completed, the tribunal will issue an order setting the prehearing conference, the hearing, and appointing the claimant’s attorney. This Order not only sets the preheaing conference and hearing, it also sets the deadline for filing your disclosure statement,[12] expert designation, and information about mediation. . The burden of proof: A beast to bear. Once the matter is referred for a hearing and you have received your order setting all of the deadlines, it is important to immediately research your burden of proof in the case. A workers’ compensation claimant has the burden of proving all essential elements of his claim by a preponderance of the evidence particularly that the condition for which compensation is claimed arose out of and was sustained in the course of employment.[13] Unfortunately, the burden of proof in workers’ compensation cases may vary and a discussion of the various burdens will be reserved for a longer discussion. However, it is important to note, for purposes of this article, that different burdens exist for injuries occurring over a substantial period of time,[14] coronary conditions,[15] hernias,[16] and compensable injuries for which benefits have not been paid for over four years.[17] Discovery: Finding that forgotten injury. Just like any other civil case, workers’ compensation cases are subject to the Wyoming Rules of Civil Procedure. Pursuant to the Order referenced above, the Division will send Claimant’s counsel a full and complete copy of the Claimant’s workers’ compensation file. It is important, however, to separately request all of the Claimant’s medical records for at least the past five years. These additional records will ensure you have a complete medical history of the claimant and allow you to prepare for any defense the Division may have to the Claimant’s injury. After reviewing the Claimant’s workers’ compensation records, medical records, and perhaps conducting some discovery with the Division, it is now time to depose one of the Claimant’s health care providers.[18] It is important to remember that when deposing health care providers, the healthcare provider should be able to testify that the Claimant’s injury is, to a reasonable degree of medical probability, related to work, and that the treatment the Claimant received is both reasonable and necessary. The Disclosure Statement: The compilation of all of your work in one document. The disclosure statement is the pre-trial memorandum for workers’ compensation cases. The disclosure statement is due twenty days before the hearing and must be served on the office of administrative hearings (or the medical commission), and all parties. The disclosure statement to the office of administrative hearings or the medical commission must be bound in a three-ring binder with all exhibits tabbed and incorporated into a single document. The disclosure statement must include at least three items: a complete list of all witnesses who will or may testify at the hearing and information on how that witness can be contacted; a statement of the specific claims, defenses and issues which are presently before the tribunal, and all documents, statements or other evidence that the party will or may use as an exhibit in the hearing. Given that the disclosure statement is the first time that the adjudicative body will be able to read all of the arguments, issues, and review all of the evidence, it is critically important that your disclosure statement is concise, but provides enough information for the hearing examiner to make his or her decision before the case is heard. Your disclosure statement should be easy to cite to as it may be relied on when the hearing examiner writes his or her decision. Be sure to include headings and sub-headings. If you find that the Division’s disclosure statement mentioned items that you did not consider when writing your own, you may be able to supplement your disclosure statement, provided that it is supplemented prior to the deadline. If it is after the deadline, it may be helpful to provide notice to the Division of your supplement. It is Time to Get Paid As stated above, W.S. § 27-14-602(d) provides that any attorney appointed as counsel for the Claimant shall receive a reasonable fee. After the hearing examiner has issued his or her written opinion, you must act to ensure you do not miss any deadlines to have your fees and costs paid. All requests for fees and costs must be submitted within ninety days of the final order.[19] The request for fees must be verified and must detail the time spent and the work performed.[20] When you submit your verified motion for fees and costs, the Division has the opportunity to object to those fees and costs. The hearing examiner will ultimately decide the total amount of fees and costs to which you are entitled and will issue an Order approving those fees and costs. When the Order is entered, it is important that you send that order, along with a Form W-9 and a Workers’ Compensation Claim Form for Non-Medical Services to the Division. Upon receipt, the Division will issue a check for the fees and costs approved by the hearing examiner. Conclusion Workers’ compensation cases are a great way for young attorneys to quickly gain litigation experience while getting paid a reasonable fee. While workers’ compensation cases do have some idiosyncrasies, the experience attorneys gain from these cases is invaluable. Unfortunately, while this article could not touch on each and every avenue a workers’ compensation case could take, it is my hope that it provides some of you looking to start your own practice, or expand your practice, some guidance in how to evaluate, prepare, and win these cases.   [1] Associate Attorney, Woodhouse Roden Nethercott, LLC. [2] W.S. §27-14-502(a). [3] Id. [4] Id. at (c). It is important to note that this presumption arises only if the employee fails to report the injury to the employer and fails to file the injury report. See Wesaw v. Quality Maintenance, 2001 WY 17, ¶ 14, 19 P.3d 500, 506 (Wyo. 2001). [5] See generally W.S. §27-14-601. If the final determination is not issued within sixty days, any interested party may request a hearing on the matter. [6] Id. at (k)(iv). [7] Id. [8] See W.S. § 27-14-602(d). See also Painter v. State ex rel. Wyo. Workers’ Comp. Div., 931 P.2d 953, 955 (Wyo. 1997). [9] Currently the fee is $150 per hour for attorneys and $40 per hour for paralegals. See OAH Rules and Regulations, Chapter 5, Section 3(b)(i). [10] W.S. §27-14-616(b)(iv). [11] Rules and Regulations of the Medical Commission, Chapter 1, Section 5(e). [12] A disclosure statement accomplishes the same basic purpose as a pre-trial memorandum and is discussed later in this Article. [13] Guerrero v. State ex rel. Dept. of Workforce Serv’s., Wyo. Workers’ Comp. Div., 2015 WY 88, ¶ 15, 352 P.3d 262, 266-67 (Wyo. 2015). [14] W.S. §27-14-603(a). [15] Id. at (b). [16] Id. at (c). [17] W.S. § 27-14-605. [18] Healthcare providers are limited to a statutory rate for testimony given, so it is important to check with the healthcare provider that he or she understands those set fees. It is also important to note that it is customary that treating physicians are not subject to the expert witness disclosure requirements. This is not standard among all venues, so be sure to confer with opposing counsel about whether he or she requires expert disclosure of treating physicians. [19] OAH Rules and Regulations, Chapter 5, Section 3(c). [20] Id. at Section 3(b).