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WHAT HAPPENS IN A TYPICAL WORKERS’ COMPENSATION CASE?

The attorney representing the disabled worker files “an application for mediation or hearing.” The employer or its insurance carrier must then file a response explaining in detail why it does not believe that the worker is entitled to benefits. The employer and the employee are both responsible for exchanging medical records within their possession.

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Effective 2015, the Workers’ Compensation Agency will schedule most cases for initial pre-trials and scheduling conferences before a workers’ compensation magistrate. Magistrates will issue scheduling orders identifying when certain information should be exchanged between the parties and when the parties should be prepared to go to trial if no settlement is reached.  The attorneys for both sides will typically meet periodically on ‘control dates’ or on ‘soft’ trial dates to negotiate or share information in an effort to reach agreement between the parties.

Most insurance companies have also recently begun asking claimants to answer interrogatories or questionnaires under oath about their prior education, work history, hobbies or interests. Some have also instructed injured workers that they must meet with a “vocational expert” hired by the insurance company for an extended interview so that the expert can testify at trial against the worker, claiming that the worker is still able to work. The Michigan Supreme Court ruled in 2008 a worker can be required to participate with this pre-trial “discovery.” Some of these “experts” will twist your words, claim you have skills and expertise that you don’t, and will ignore the limitations associated with your disabilities. If an employer or insurance company is asking you to comply with these sorts of requests, legal representation is strongly recommended.

Trials in workers’ compensation cases are held before workers’ compensation magistrates (judges) that were appointed by the Governor. These judges hear nothing but workers’ compensation cases and conduct the hearings at local workers’ compensation agencies throughout the state. These trials in Michigan have usually been more formal than most administrative hearings and most rules of evidence have generally been applied. The State’s Michigan Administrative Hearing System recently adopted new rules to govern these litigated cases.   The entire proceedings of a trial are recorded. Both sides are usually represented by an attorney. Although a worker can represent himself, it is illegal for a non-attorney to appear on the worker’s behalf at trial.

The disabled worker is usually the main witness at the trial. Sometimes supervisors will appear to testify what kind of work an employee had to perform. The testimony of doctors is usually preserved ahead of time in a “deposition” in the presence of both attorneys and a court reporter. To prove that a worker is unable to obtain or perform work within one’s qualifications and training, it has become increasingly common for an injured worker to hire a vocational expert to testify about the claimant’s qualifications and the injury’s impact on the job market. A private investigator  might also testify.

pic-workcomp4.jpgThe judge usually does not make a decision on the record at the end of the trial. He or she will usually review the material while off the bench, write an opinion and mail it out to all the parties. If either side does not like the opinion it is free to appeal the case to the Michigan Compensation Appellate Commission. The Appellate Commission is supposed to leave the magistrate’s decision alone if there is substantial evidence to support the magistrate’s findings of fact. If the magistrate erred in its interpretation or application of the law, the Appellate Commission is supposed to review the case on legal grounds.

Many cases, however, are settled before trial. Sometimes the employer ultimately decides to pay the full claim after taking a look at all the facts and circumstances. Sometimes, the employer and employee enter into a compromise “voluntary payment agreement” in which the employer agrees to pay some but not all of the benefits which were alleged due.

After six months from the date of injury, an employer and employee can enter into a special kind of settlement called a “redemption.” If a case is redeemed, the worker gets a single lump sum payment from the employer in exchange for giving up all of his or her rights to future workers’ compensation benefits. There is usually a special hearing in front of the magistrate for a worker to redeem his case, at which time the magistrate will make sure that the worker understands what he is giving up and that the lump-sum payment is a fair one. Many employers insist that an employee sign a “voluntary quit form” releasing the employer of any and all liability–not just liability for workers’ compensation–before entering into a redemption. If a worker does not intend to release the employer for liability under other causes of action or legal grounds, it is important that the worker states this on the record in the redemption hearing. The receipt of workers’ compensation, or a settlement of a workers’ compensation case, may effect other benefits a worker is receiving or could receive in the future, such as Social Security Disability and Medicare. An experienced and qualified workers compensation attorney will be alert to these issues.

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