By Cindy Boyce, Senior Claims Adjustor

In the majority of Workers’ Compensation cases employees who are injured at work recover and return to work. In some cases employees do not return to work claiming that they are still disabled from the work injury. A small percentage will end up in court and enter into litigation by filing an Application for Hearing. Shortly after the Application is filed, it is processed by the Workers’ Compensation Agency and the employer will be served with an Acknowledgement and Notice of Hearing. Below are a few recommendations that will assist you in understanding the litigation procedure.

1. Once a claim is disputed, the employee may resort to filing an Application for Hearing.

When you are served with the Acknowledgement and Notice of Hearing, you will note the Magistrate assigned to hear the case, the hearing site and the date of the initial pretrial hearing. In most cases, the adjuster will also be served. However, it is recommended that you contact MTMIC upon receipt of the Application to confirm that we have been served.

Once we receive the Application for Hearing, we will retain an attorney to represent your company’s legal interests.

In most cases you will not be required to attend the pretrial or subsequent hearings unless we have notified you otherwise.

2. During the course of this litigation, you may receive a subpoena for personnel records from the employee’s attorney. Please do not respond directly to the subpoena by sending the records. It is requested in all cases that you send all personnel and medical records to MTMIC and we will forward them onto our counsel who will forward them to plaintiff’s attorney. Other information we are required to provide to plaintiff’s attorney are wage records and the value of discontinued fringe benefits. You will be asked to provide to us a summary of 52 weeks of gross wages preceding the alleged date of injury(s) and the value of discontinued fringe benefits if they were terminated.

3. It is important to document any conversations with the employee on or after the date of the injury. Understand, that once the employee becomes legally represented any conversations you have had will be relayed to his/her attorney. You would be surprised to see that some employees will embellish the events leading up to and following the injury. We can use these statements to contradict them if they vary from what was originally reported.

4. Also obtain witness statements from co-employees who may have knowledge of the alleged injury, or knowledge of the employee’s activities outside of work that might be contrary to the alleged disability(s). Make sure the statements are signed by the witnesses and dated.

5. The majority of cases, prior to trial, are now being sent to a neutral Magistrate, who will conduct a Facilitation Hearing. The purpose of this hearing is to give both sides a realistic view of the merits of the case as well as settlement value. At the hearing the attorneys representing the parities will provide the magistrate a snapshot of their case. After hearing the summaries presented by both attorneys, the magistrate will make a recommendation. The magistrate’s recommendation is not binding and either side can accept or decline. We are finding that the facilitation process has been very beneficial.

6. Later in the litigation, as we get close to a trial date, the adjuster and attorney representing you will meet with you at your company. The purpose is to identify potential witnesses and to view/video the alleged job or injury site. You should have the employee’s direct supervisor and co-employees available. This is also a time when we will want to discuss the merits of the case and develop a strategy to bring the case to a conclusion in the most cost effective manner.

Please understand that litigation is a lengthy process and can take up to two years to resolve. You are a crucial part of this process and the more information you are able to provide, the better we will be able to defend.