GOING TO A WORKER’S COMPENSATION HEARING? HERE’S WHAT TO EXPECT.
The workers compensation insurance adjuster is not being reasonable and now I need to go to a Hearing to have a judge decide my benefits? What should I expect?
Attorney Lisa Pierobon Mays represents only Wisconsin injured workers. Every client scheduled to go to Hearing is litigated by Atty. Pierobon Mays. Prior to the hearing, Lisa will thoroughly prepare her client for the Hearing. She meets with them a few days prior to the hearing and works with them over several hours to get them prepared and ready to give testimony – basically telling the Administrative Law Judge with the Office of Workers Compensation Hearings the details of the injury and how it has impacted the injured worker. Attorney Pierobon Mays’ clients always feel well-prepared for a Hearing. Lisa believes the more prepared her clients are to give testimony, the more confident they will feel at the Hearing. Another way she prepares her client is to take the mystery out of it, here is what occurs at a Hearing.
WHERE WILL MY WORKERS COMPENSATION HEARING BE HELD?
Hearings are scheduled at various locations throughout the state of Wisconsin. In general, the geographical location for the Hearing is determined by the location of the employee’s residence, or where the injury occurred. The greatest travel convenience for the injured worker (also called the Applicant) is the priority city for the scheduling of a Hearing. The biggest city closest to such will be selected. So, for example. an Applicant who resides in Baraboo will have their Hearing scheduled in Madison.
After a Hearing date is set, all parties are notified by a written, blue-colored notice. The Notice of Hearing is usually mailed to the parties eight to ten weeks in advance, but hearings can be scheduled with as little as ten days’ notice in emergency cases.
WHO ATTENDS THE HEARING?
The parties required to attend the Hearing is the Applicant (injured workers), her Attorney, the Attorney (called Opposing Counsel) for the workers compensation insurance company, a representative for the insurance company or employer, if desired by them. Also, all relevant witnesses, the Judge, and the Court Reporter.
HOW LONG DOES THE HEARING TAKE?
The Office of Worker’s Compensation Hearings schedules Hearings in 4-hour time slots, starting at 8am and finishing at Noon. Or, starting at 1pm and finishing at 4pm. If the parties run out of time, then a continued hearing will be scheduled, usually within a few months, as the Scheduler needs to coordinate to ensure that all parties, including the judge, are available.
WHAT DOES THE JUDGE DO AT A HEARING, WILL SHE QUESTION ME?
At Hearing, the Administrative Law Judge is actively involved and in charge of handling all the preliminaries. The Judge is responsible for making sure that all the necessary parties are present, that the issues of the claim are mutually understood. The Judge is responsible for protecting the record of the claim by allowing testimony and evidence to be pursued by all the parties. Any objections to such are resolved by the Judge with a ruling on the record. The Judge swears in all witnesses who promise to give truthful testimony. The Judge is also protective of the Court Reporter, who transcribes/stenographs testimony and marks exhibits, by making sure that she can properly hear and see the live testimony.
Hearings are intended to be somewhat informal, and the Judge will often interrupt when the injured worker (Applicant) is giving testimony for clarification or to ask her own questions of the Applicant. Keep in mind, the Judge wants to make a well-informed and thorough decision so anything that the Judge feels is confusing or not explored, then she will follow-up on.
WHAT DOES IT MEAN TO GIVE TESTIMONY AND THE BURDEN OF PROOF?
At Hearing, the injured worker (Applicant) has the burden to prove that he is entitled to monetary benefits because a work injury caused lost time/wages, medical expense, and permanent disability. Such issues are proven by the Applicant testifying as to the details of the injury such as who, what, where, when, and why details of their injury. As to the medical questions, a physician generally does not come to the hearing to testify but instead answers a series of questions on a 2-page form approved by the State of Wisconsin Division of Hearings and Appeals.
Applicants should be prepared to testify and know what questions are going to be asked of them on direction examination. Simple rules should be followed by the Applicant such as always speak with audible words. Nodding or shaking of the head to respond Yes or No is not allowed because the Court Reporter only transcribes verbal words. Also, “Uh uh” or “Uh huh” means nothing to the Court Reporter and should never be uttered by any witness when testifying. Other Do’s and Don’ts when testifying, tantamount to winning and losing at Hearing, are taught at Mays Law Office. Attorney Lisa Pierobon Mays always prepares her client’s a few days before the Hearing so that they are ready and confident to give testimony at the Hearing.
WILL OPPOSING COUNSEL BE MEAN TO ME ON CROSS EXAMINATION?
Workers’ Compensation Hearings are generally amicable. Contentious behavior at a Hearing is deemed unproductive and Judges will be protective of a witness being treated with disrespect. However, Cross-Examination questions feel different than those on direct. For instance, a witness who is asked, “What is the weather like outside today?” is given broad freedom to answer the question. On Cross-Examination, the questions will not be so open-ended, instead the same question will be asked “Isn’t is true that the weather is cloudy and cold today?” A simple is suggested in the question, that answer being a “Yes” or “No”. Applicants often feel cornered by questions on Cross-Examination because they are unable to break free and speak their own words. Attorney Lisa Pierobon Mays always prepares her clients for this type of questioning. She reminds them that she always gets the last word with her client on Redirect Examination where she can circle back to any questions asked on Cross-Examination that need further detail or explanation.
CAN I BRING A FRIEND OR SPOUSE TO THE HEARING?
Absolutely Yes you can bring someone to support you at the Hearing. Attorney Lisa Pierobon Mays encourages a supporting person come to the Hearing. A Workers Compensation Hearing can be intimidating with the presence of a Judge, Court Reporter and Opposing Counsel. Nervous feelings are expected so Lisa tells her clients that if they are feeling nervous when giving testimony then their support person will be seated in a visible spot where they can see a friendly face supporting them.
If your support person is also going to be a witness, then the Opposing Counsel will likely make a Motion to Sequester your witness which means that the witness needs to remain out of the Hearing room until it is time for him to give testimony. Once the testimony is done then they can stay and watch the rest of the Hearing.
DOES THE JUDGE DECIDE WHETHER I GET BENEFITS AT THE CONCLUSION OF THE HEARING?
No, the Administrative Law Judge has a lot to consider after the Hearing. They like to thoroughly review all the Exhibits, read portions of the testimony transcript, and allow the parties a few weeks to follow-up on anything that was discussed but not resolved at the hearing, such as updated medical records or billing itemizations. Once the record is closed then the Judge should have a written decision in 90 days, however this is not mandatory, just suggested.
CAN MY CLAIM SETTLE AFTER A HEARING?
Workers Compensation claims often do settle after the Hearing. A Hearing gives both sides the opportunity to see the strengths and weaknesses of their case. An Applicant who testifies well at Hearing and if very little damaging evidence is presented by Opposing Counsel, then it is a good sign that the claim will likely go in favor of the Applicant. In those cases, Opposing Counsel will go back to their client, the Worker Compensation Insurance Carrier, to update and advise them of such and encourage them to reinitiate settlement discussions. Attorney Lisa Pierobon Mays always keeps her clients updated on all settlement discussions, patiently answering all questions, and addressing all concerns that her client’s may have.
A Wisconsin injured worker should never feel forced to settle their workers compensation claim. It is their right to have a Hearing decided by an Administrative Law Judge. When hiring a Wisconsin workers compensation attorney, the injured worker needs to choose carefully who they want as their advocate. Too many attorneys want to just settle claims and move on to the next client. Attorney Lisa Pierobon Mays never stops advocating for her client. She always keeps the client’s best interest as a priority.
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