Depositions
Depositions in Workers’ Compensation Claims
Inequities in Discovery James A. Lanier T
here is usually no pre-hearing discovery in a workers’ compensation claim. Only when there is a need to preserve witness testimony may an attorney utilize a
deposition in a Commission level case. Md. Code Ann., Lab. & Empl. § 9-719. In the decade-plus during which I have represented claimants, employers, and insurers, I have utilized this section only once. After the Commission issues a final decision, the aggrieved
party may appeal that ruling to the Circuit Court. On appeal, regular discovery rules apply and either party may depose any potential fact witness. Te inequity in the positions of the parties is evident once
discovery begins. Employers and insurers are only financially limited by the amount that is allocated for the prosecution or defense of the appeal. Te claimant is limited to what may be recovered from the employer and insurer. Employers and insurers are in a superior position to bear the cost of appeals. If the claimant successfully defends an appeal, there is unfortunately no statutory provision which would compel the employer and insurer to contribute to her reasonable attorneys’ fees and costs.
Workers’ Compensation Appeals Either party may appeal any final order of the Commission.
Because any final decision may be appealed, an attorney may have a jury trial over any type of benefit awarded by the Commission. As examples, some of the appeals I currently have pending concern authorization of medical care, the compensability of an accidental injury, the causal relationship of a psychological injury that manifested itself during the extended recovery from a physical injury, the calculation of the claimant’s average weekly wage, and assessment of a permanent partial disability award. I have also been involved in appeals regarding permanent total disability determinations where the potential amount in
controversy is hundreds of thousands of dollars to an appeal filed over the payment of a $400.00 medical bill (pre-Medical Fee Guideline reduction). 1
Expenses in Workers’ Compensation Workers’ compensation claimants’ counsel need to limit
trial costs as much as possible; more so than in any other area of the law. Depending on the issue appealed, there may be little or no money in controversy or the amount in controversy may be fixed. Te exception is for permanent total disability or serious permanent partial disability claims, as the amount in controversy is significantly greater than other matter involving potential appellate issues. Te higher the expenses, the less the claimant receives. For example, if the issue on appeal is the authorization for a medical procedure, there is no monetary benefit to be paid to the claimant. Obviously, if the claimant is awarded medical treatment, there may also be a period of temporary total disability (TTD) to be paid. As with all decisions, the cost versus the potential benefits must be considered. For the year 2010, the state average weekly wage (AWW) is $920.00. Assuming an extended medical recovery time of fourteen weeks, the maximum potential TTD benefit to the claimant is $12,880.
1 Te Medical Fee Guide is a complex regulation enacted by the Maryland Workers’ Compensation Commission. Te Guide details fees that may be collected by medical providers for medical services rendered to claimants. For more information, please see COMAR 14.09.03 and the Maryland Workers’ Compensation Commission’s website, located at
http://www.wcc.state.md.us/ MFG/
Medical_Fee_Schedule.html.
Trial Reporter / Winter 2011 35
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