The parties to litigation are afforded the opportunity to gather information, which is called discovery. Depositions are often taken as they are one of the first components in the discovery process in workers’ compensation cases. Generally, depositions are taken when the claim is in dispute, meaning it is undecided whether the claim will be accepted or the claim has been denied by the employer/insurance carrier.
There are so many reasons as to why a defendant would want to take an injured worker’s deposition, but we will discuss some of the basic reasons. A defendant who represents an employer or insurance carrier will want to question the injured worker about their background information, which will include any identifying information. They will question the injured worker about the events of the incident, such as how the injury occurred, what injuries were sustained, was the injury reported immediately following the incident, were there any witnesses, was medical treatment sought immediately following the incident, and the list goes on.
Other reasons to take a deposition could be to secure the names of past medical providers who may have treated the individual for his/her workers’ compensation claim. Depositions also provide an opportunity to ask the injured worker about any prior workers’ compensation claims, motor vehicle accidents, personal injury claims, etc.
Depositions are also used to preserve the testimony of the injured worker. Let’s say this matter does not go to court for some time. If the injured worker is required to testify at the time of trial, sometimes a considerable length of time has lapsed prior to getting the case to Trial. If this is the case, the injured worker may not have as good of a recollection of the events at the time of Trial. If the deposition testimony of the applicant is taken closer to the time of the injury, it can be used along with and sometimes in place of the applicant’s testimony since it was taken under oath. When something is taken under oath, it has the same effect as if a person was testifying in court. In addition, if the injured worker is unable to testify at the time of trial due to health reasons, unforeseen unavailability, death, etc., the testimony from his/her deposition can be used at the time of trial.
After the deposition has taken place, the injured worker will be afforded the opportunity to review his/her deposition transcript to make any changes if needed.
It should be noted that the insurance company can take deposition of an injured worker, even if the injured worker has no attorney. An Application for Adjudication must first be filed with the WCAB, but the deposition can then go forward. For injured workers, if you do not have an attorney there is a Labor Code provision that provides that the insurance company must pay reasonable deposition fees to an injured workers' attorney related to a deposition. So if the insurance company has set your deposition, it will not cost you any money to get an attorney. If your deposition has been set and you want to talk to an attorney, please call 559-408-7436 or fill out the form to the right.
The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between the Law Offices of Jeremy K. Lusk, Inc. and the reader.