Where’s Your Evidence? A Sixty-Second Seminar in Workers’ Compensation Claims Handling

Today we are going to tell you an incredible story about three newly-hired workers with physical and psych injuries, who each testified at the Board as to the nature of their industrial accident. The first injury resulted from a car crash. The second occurred from a fall off a ladder, while the third happened when struck on the foot by a heavy object. Incredibly, all three applicants testified they had no idea anyone could ever be injured as a result of these incidents. In addition, they described the accidents as extraordinary events of employment. All three had been well coached by their attorneys on what to say on the witness stand to circumvent LC 3208.3(d), which prohibits compensability of a psychiatric injury if employed less than 6 months, unless the injury was attributed to a sudden and extraordinary event. It became quite evident that all three were attempting to manufacture an extraordinary event where one did not exist. Consequently, they presented ridiculous testimony that they believed it was extraordinary for anyone to be injured in a car crash, or from falling off a ladder, or being struck by a heavy object. Unfortunately, this story gets worse. All three applicants won their case! Yes, they were all successful in obtaining a favorable ruling from the trial judge. How could this be? The answer is simple. The reason they each won their case was because the defendants dropped the ball!

After each applicant presented their incredulous testimony, the judge looked at the defendants and asked, “Where is your evidence?” They had none. The defendants called no witnesses nor introduced any documents to disprove the testimony presented by each applicant. Instead, they relied on judicial common sense to “empirically know” it is not extraordinary for people to get injured in vehicle accidents, as well as from falling off ladders, or being struck by heavy objects. Unfortunately, relying on common sense and empirical knowledge is not good enough to win at the appeals board. Evidence is needed. By failing to introduce rebuttal evidence the trial judges in all three cases were required to accept each applicant’s testimony as true, leaving no alternative but to rule in favor of all three employees. No other outcome was legally possible as a judge can only rule based on the evidence. Yet, the defendants introduced none.

The lesson to be learned here is an employer must present rebuttal evidence regardless of how ridiculous the applicant’s testimony may be. Deposing the applicant beforehand will enable the employer to identify the sudden and extraordinary events applicant intends to rely on. A deposition will also enable the employer to prepare an effective defense by retaining appropriate experts to address the situation. An industrial specialist, such as an accident reconstruction engineer, may testify and introduce substantial evidence as to the frequency of a particular accident occurring in the workplace, proving it to be a routine event rather than something extraordinary. In certain situations, the employer may take the witness stand to rebut an applicant’s testimony by introducing records from safety meetings, or from the employee’s safety educational records where accident and injury prevention were discussed beforehand. Again, we reiterate, an employer must introduce rebuttal evidence to counter even the most incredulous testimony, such as applicant being totally unaware that a person can be injured in a car accident. Without rebuttal evidence an employer will lose each and every time.