DISCLAIMER: This post provides a general overview of a workers compensation trial. It is not legal advice. If you require information or advice applied to your unique situation, please contact an attorney. If you have WC insurance, your carrier will usually appoint one to defend you.
Employers Have the Burden of Proof
In court, plaintiffs have to prove you were negligent before there is any consideration of a damages award. That is not how the WC system is structured.
At trial, you will be presumed liable for your employee’s injuries unless you can prove that employee is lying or exaggerating. Evidence disproving the claimant’s assertions can be very hard to produce.
Cases are regularly established as compensable, even when:
- the accident was unwitnessed
- the initial hospital records are not produced (or they are suppressed)
- the description of the accident makes no sense.
One employer lost a challenge to its case because the judge swore he had been in an elevator that fell, despite statistical evidence that the last time an elevator did a free fall was long before that judge was born.
We try to keep you out of court so you aren’t at the mercy of the judges’ misperceptions and biases. Judges are regularly discussed as claimant-friendly or carrier-friendly, even though they are supposed to be impartial.
Retaining Defense Counsel
Your WC insurance policy has a Duty to Defend clause that requires your WC insurance carrier to appoint defense counsel for you.
If you are uninsured because you misclassified the injured employee as an independent contractor, didn’t know you needed WC insurance, or let it lapse, it is too late to obtain coverage for this claim and correct your errors. However, we recommend you secure a policy immediately to prevent additional uninsured claims.
Preparing Your Testimony
You will be expected to testify at trial regarding your relationship with the claimant. For example:
- How did you meet?
- When did he or she first work for you?
- What were his or her duties?
- How much was he or she paid?
If you have not yet produced payroll records, a job description and other records, plan to share them at trial.
If you witnessed the accident, you will be asked very specific questions about the events leading up to it, such as:
- How far away were you from the claimant?
- Did you observe physical limitations (e.g., limping, unconsciousness, holding the injured body part close to him)?
- Was she bleeding or bruised?
- Did he say anything to you about what happened?
- What did he say?
If you know about hobbies, personal issues, or other matters that might directly relate to the case, your attorney will decide whether or not to disclose it and how to best use it to help you.