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Pezzano Mickey & Bornstein, LLP

Workers’ Compensation Trials

You will be disappointed if you expect to see the level of courtroom drama depicted on the big screen in the Division of Workers’ Compensation. While there are always a few moments during any trial which include a surprise question or unanticipated answer, explosive testimony is rare in the Division.

How Is the Value of My Claim Effected by The Judge of Compensation Who Is Assigned to Hear My Case?

Unlike a Superior Court case in New Jersey, which would be decided by a jury of 6-12 people, workers’ compensation cases involve a “bench trial,” in which the Judge of Compensation decides both questions of fact and law. All judges are appointed by the Governor, often based on political ties rather than expertise.

Judges are human beings, with their own set of biases, likes, and dislikes. You should ask your attorney of the inclinations of the Judge assigned to your case. Is the Judge naturally sympathetic to injured workers? Was the Judge a former insurance defense attorney or an attorney for a Union? Is the Judge more worried about providing a windfall to an undeserving petitioner, than he is about ensuring that an injured worker is adequately compensated? Some Judges see fraud around every corner, while others are more leary about the tactics of insurance carriers. There are a few Judges who are compassionate, and several who believe that most claimants are trying to milk the system. I wish that I could report that the value of a claim in one county in New Jersey was the same as a value of a claim in another county. Unfortunately, while the same chart of disabilities applies in every case, where your compensation award lands on that chart is disproportionately impacted by which Judge is assigned to hear your case. Accordingly, your attorney may recommend that you reject a settlement offer and hold out for a higher award at Trial if you are lucky enough to have your case assigned to a more generous jurist. On the other hand, if your case is listed with a Judge who is more concerned with protecting insurance carriers from overpayments, your attorney is more likely to recommend a settlement offer to avoid the risk of a dismissal or lower award at Trial.

How Should I Begin Preparing for a Trial?

In the weeks leading up to the Trial you should think about the ways in which the injury has affected your everyday activities, at work and at home. Hopefully you have learned methods of compensating for your injury, which enable you to live a normal life and forget about your injury. However, you must be prepared to explain the details of how your daily movements and activities have been changed due to the injury. For instance, you might explain that while you are still able to go up and down stairs, you must now take one step at a time and hold the railing due to your injury. Even if your injuries do not prevent you from performing an activity, you should note if the activity causes you pain or it takes you longer to perform. It would be helpful if you paid close attention to your daily activities while you are awaiting Trial, writing down the specific ways in which your life has changed due to the work injury.

Your attorney should obviously review the case with you prior to the Trial, and discuss all the issues which will be presented to the Court. Most attorneys prepare their clients for testifying immediately prior to the settlement hearing, while waiting in Court. Unfortunately, your time before the Judge of Compensation is often limited, so only relevant information should be presented to the Court. Do not be alarmed if your attorney cuts you off during preparation for your testimony, to keep you on track. She is not being rude. She is trying to focus your testimony on the issues which are important to the Court to win your case. If you have a tendency to ramble on, you must have the discipline to stay on topic when answering questions about your injury. On the other hand, if you are a quiet, reserved person, you may have difficulty talking about yourself. It is therefore critical that you practice explaining your injuries so that you do not freeze up in Court. Speak with a friend or family member to help you remember all of the ways in which your injury affects you, and practice your testimony by discussing your limitations with them and in front of a mirror.

What Is the Procedure on the Day My Case Is Scheduled for a Trial?

Several cases may be scheduled for Trial on the same day, at either 9am or 1:30pm. When you arrive at the Division of Compensation you should wait for your attorney in the area outside of the courtrooms. Do not be alarmed if your attorney does not appear to greet you immediately. Get comfortable and acquaint yourself with the building by locating the restroom and walking off your nerves. Your attorney will check in with you after she speaks with the Judge and the insurance carrier’s attorney. Court is in session between 9am – 12:30pm and 1:30pm – 4:30pm. Most Judges hold settlement conferences first and begin processing settlements mid-morning. Trials usually do not get reached until early afternoon.

Your attorney will review the issues with you again as you are waiting for the Judge to reach your case. Do not be afraid to bring up any facts you are unsure of now with your attorney. Please do not wait until you are on the stand to raise an issue for the first time! Discuss any issues of concern with your attorney prior to taking the witness stand. Although the Judge may have reviewed your medical records prior to the Trial, you should assume that the Judge is a blank slate on which you and your attorney will be writing your story.

Before testifying, you will be sworn in by the court reporter. You may use the religious book of your preference or merely affirm to tell the truth. Your testimony will begin with answering questions from your own lawyer – referred to as “direct testimony.” Thereafter, the insurance carrier’s attorney will have the opportunity to “cross examine” you.

Direct Examination: Answering Questions by Your Own Attorney in Court

The purpose of your testimony in Court is to lay out all the disputed aspects of your claim in the most favorable light. Your testimony should follow a logical pattern, so that the Judge can follow the relevant facts and make a decision. Your attorney will create an outline for you to tell your story with the questions she asks you on the record, in front of the Judge. Only you may tell your story though – your attorney cannot testify for you by asking “leading questions,” to which you answer yes or no.

Your attorney will not spend a lot of time eliciting facts which have been stipulated as true by the insurance carrier. For example, if your employer admits that an accident occurred, then it will not be necessary for you to testify about the fine details surrounding the accident. You will only need to provide a general description of how the accident happened, and the manner in which your body was impacted by the trauma. For instance, if you fell 12 feet from a roof, you need not provide the Court with details about why you were on the roof and what sort of material you were using that day. It is more important for you to explain the details of the trauma, i.e.: that you struck a fence on the way down, breaking it, and then landed on concrete, feeling immediate pain in your back, neck, and shoulder. On the other hand, if the accident was denied by your employer, then your attorney will ask you to elaborate on the details leading up to the accident, such as how it occurred, and who was present at the time you were hurt. You must indicate if you are unsure of a particular fact, or do not know the answer to a question. Otherwise, your credibility will be significantly undermined if your statement turns out to be untrue.

Your attorney’s job is to help you illustrate to the Court how your injuries are affecting your life. She will guide you through a set of questions designed to elicit the most relevant and compelling information to persuade the Judge regarding the facts at issue in your case. Listen to the questions asked by your attorney and try not to answer far beyond the scope of the question. That does not mean that you should provide short, yes or no responses when answering the questions of your own lawyer. Remember – only you can tell your story with guidance from your attorney.

What to Expect During Cross Examination?

You should approach the cross-examination questions of the insurance carrier attorney much differently than direct examination. The other attorney will attempt to poke holes in your testimony, to either catch you in a lie or an exaggeration. Every defense attorney has a different style. The most effective cross examiners often start off with friendly questions, so that you will let down your guard. You should be courteous and truthful when answering all questions. However, do not fall into the trap of answering yes to every question just to be agreeable to the friendly cross-examiner. The defense attorney is trying to paint his own picture for the Court, so you must vigilantly listen to his questions and deny any facts which you are unsure about, or indicate if your memory is failing you. On the other hand, you will appear to hiding something if you indicate that “you do not recall” in response to every single question. In short – pay attention closely to the questions and answer honestly. Do not forget that Judges are human beings, who hear stories like yours every day. If the Judge feels that you are being evasive or he does not like your attitude, he may rule against you or limit your award.

A fertile ground for cross-examination is the issue of prior accidents. Please do not make the mistake of denying a prior accident because you feel it is irrelevant. The insurance carrier will have a list of every single prior work injury, fender-bender, or insurance claim you ever made during your lifetime. A prior accident may very well be irrelevant to your workers’ compensation case. But you cannot make it disappear by denying it, or playing games on the stand. If a prior injury occurred but was minimal, just admit it, explain how quickly you recovered from it, and what limitations you suffered from it, if any. If you received a settlement from a prior accident you should keep in mind that the insurance carrier’s attorney may have the transcript from your testimony in that case. Your attorney should have reviewed this prior transcript with you in detail, to make sure that you do not contradict yourself.

Keep in mind that your attorney cannot come to your rescue during cross-examination by yelling “objection” every time you are asked a tough question on the stand. Courtroom dramas on television are rarely accurate. After the insurance carrier’s attorney finishes his questions, your own attorney will have an opportunity on “re-direct” to clarify any misrepresentations which arose during cross-examinations. If you misspoke during cross-examination, now is the time for you to correct the record.

What Happens in the Trial After I Testify?

Trials in the Division of Workers’ Compensation are not continuous in that multiple witnesses do not testify immediately after one another. Generally, only one witness testifies every day the case is listed for Trial, since the Court must address multiple cases on a daily basis. After each witness testifies, the case will be adjourned at least “one cycle,” which is three weeks. Accordingly, a Trial may take more than six months to be completed, depending upon the number of witnesses scheduled to testify.

After your testimony has been completed, your attorney will call any lay witnesses (non-experts) to the stand if necessary to establish a particular factual element of your case. For example, if the accident was denied by your employer, a co-worker who was present when the accident occurred may be subpoenaed to testify. If family members are able to articulate how the injuries impact your life it would be helpful if least one of them could testify on your behalf. Keep in mind however, that the Court frowns upon duplicative testimony and will not appreciate hearing from multiple witnesses who do not add any new facts to the record.

The workers’ compensation carrier’s attorney may also call lay witnesses to contradict or undermine your testimony. If your employer disputes your injury, do not be surprised to see your supervisor or one of your co-workers testify that they never witnessed any accident, or that your injuries are not as substantial as you claim. You should be present during such testimony, to look these witnesses in the eye and make it more uncomfortable for them to lie. It is also critical for you to listen to their testimony to assist your attorney in preparing cross-examination of such lay witnesses. You may also be called back to the stand to explain why their testimony was incorrect.

Once all fact witnesses are finished testifying, your attorney will schedule the medical experts to appear on your behalf. These are the experts who evaluated you for the purpose of estimating your permanent disability as a result of the accident. Treating physicians rarely appear in Court, both because of their busy schedules and the high cost of paying for their appearance at Trial. The medical experts who will be called to the stand are experienced in providing testimony before the Workers’ Compensation Court, and understand the New Jersey disability schedule. Your attorney will review the objective medical evidence of injury with each expert, and ask them to explain their estimate of disability to the Court, and why it is causally related to the work accident. The other attorney will go through the same process with the insurance carrier’s medical experts, trying to persuade the Court that the injuries had a minimal impact, if any, on your functional abilities and/or were unrelated to the work accident.

There are generally no closing statements made by attorneys in the Division of Workers’ Compensation. After all witnesses have testified, the Court will unceremoniously close the record, and then take some time to review the transcripts of the testimony before rendering a decision. Both parties should submit Trial briefs to summarize the testimony and try to persuade the Court to rule on behalf of their clients. Thereafter, it could take weeks or even months for the Judge to write an opinion on your case. Your attorney has little control over when the Court will issue a written opinion, although the Chief Judge of the Division may pressure the errant Judge who lags far behind in issuing rulings.

What is the Process After the Court Issues an Opinion on My Case?

The Judge of Compensation may summon both attorneys back to Court to read his decision into the record. A Judge may also prepare a written decision which will be provided to one of the attorneys, with a directive to prepare an Order for Judgment consistent with his ruling. If the Judge rules in your favor, the insurance carrier must begin payment of accrued benefits pursuant to the judgment within 60 days of the date of the Order, unless an appeal is filed and a stay is granted.

What If I Disagree With the Judge’s Decision Following a Trial?

Both parties have 45 days from the date the final Order is signed by the Judge to file an appeal. If the insurance carrier disagrees with the Court’s decision their attorney they may file an appeal to the Appellate Division of the Superior Court of New Jersey, and request that the Court enter a “stay” of the judgment, which allows the carrier to postpone payment of the award until the appeal is heard. You may also wish to file an appeal. However, your attorney is not required to file an appeal on your behalf, and may refuse to do so if she believes that there is little chance of success on the appeal. Of course, you may retain the services of another attorney to file the appeal.

The Appellate Division will only overturn a decision of the Division of Workers’ Compensation if the Judge applied the law incorrectly, or if a factual finding could not have reasonably been reached based upon the credible evidence produced at Trial. In other words, it is very difficult to overturn the decision of a Judge of Compensation, if the decision was based upon his interpretation of the facts, such as the degree of your disability. The Appellate Division gives great deference to the expertise of the Judge of Compensation. An appeal is unlikely to be successful if the Judge’s decision solely hinged on his evaluation of the credibility of the parties. This standard again illustrates the importance of which Judge of Compensation is assigned to hear your case.

Pezzano Mickey & Bornstein, LLP

Call Now For A Free Case Evaluation
(908) 923-0020