Doing Depositions In Workers’ Comp Cases
You knew your patient with a work injury was having difficulties with her compensation claim. Now you’ve been notified that the lawyers want you for a deposition. This article explains what it is, what is expected of you and how to prepare.
MEDICAL EXPERT UNDER OATH
Your expert testimony at a deposition is often the key to the outcome of your patient’s compensation claim. When a doctor is deposed in a workers’ compensation case, it is to obtain his or her opinion as a medical expert on a claimed work injury or occupational disease. You will be questioned under oath and the whole session will be recorded – just as if you were testifying in a trial – but rather than taking place in the court room, it will probably be in your office or may be done by phone.
Depositions are part of the “discovery” process. They usually concern medical causation of a claimed work injury or disease by a particular work incident or environment as compared to other potential causative factors such as “pre-existing conditions,” non-work contributions or even other work incidents.
As treating doctor, you are subject by state regulations to be subpoenaed for cross-examination by a workers’ comp insurer or self-insured employer. At the deposition, then, a lawyer for the workers’ comp insurance company will cross-examine you regarding your chart notes or report(s) you prepared for your injured patient’s attorney (the “claimant’s” lawyer), who will also be present to question you.
(By the way, it is harmful to your patient to refuse to make yourself available for cross-examination since that will result in your patient’s losing the right to use any of your reports as evidence, unless he/she can convince the judge they should be received.)
PREPARING FOR THE DEPOSITION
Before the deposition, you may prepare by talking to the claimant’s attorney. He/she can tell You what types of questions to expect and, possibly, about the other lawyer. He/she will also be able to tell you what the issues are and particularly the medical questions at issue. Causation is almost always a key issue. This way, you will know how to prepare, so you can come to the deposition ready to explain your opinion on medical cause and any other issue.
FIND OUT WHAT THE OTHER DOCTORS ARE SAYING
As part of your preparation, you may also wish to review all independent medical examination (“IMF”) reports and the records of all other treating doctors. Your patient’s lawyer can help You to he sure you have all these records and reports.
This will give you an opportunity to gain a good understanding of all these other medical documents before the deposition, so that you are prepared to discuss how this medical information relates to or differs from your observations and opinions. Then, if the other doctors differ with you, you will be prepared to defend your position. As explained below, you may bill for your time preparing for and participating in depositions.
KNOW THE MECHANICS OF THE INJURY AND THE WORK ACTIVITY
If the issue concerns the type of work activity (and whether it caused the injury, disease or condition), you may wish to question your patient on the mechanics of the work activity and the injury. You may, for example, wish to ask him/her to go through the motions engaged in at work, or even perhaps to draw diagrams for you or show you the work site. You may also want to ask about your patient’s non-work activities and other injuries which may affect the medical condition at issue, since this question often arises.
YOUR TIME IS NOT FREE
The Oregon Administrative Regulations provide for required fees for physicians giving depositions, including your preparation time. The first hour (including preparation time) is billed at a relative value of 39.95 units, using the conversion factor for “Medicine” (Oregon specific code D0001). Each subsequent hour or portion is billed at a relative value of 13-32, conversion factor for “Medicine” (Oregon specific code D0002). The Oregon Relative Value Schedule and Appendix A, which includes relevant CPT codes, are available from the Workers’ Compensation Division.
This article was prepared by Robert L. Chapman