As an adjuster in a workers’ compensation matter, giving a deposition
to claimant’s counsel is usually the last thing an adjuster looks
forward to doing or has time to do. The day to day rigors of claims adjusting
are enough, i.e. making sure medical care is proceeding, issuing indemnity
payments, attending mediations, and performing other necessary case handling.
However, if your deposition is requested by claimant’s counsel,
how should you prepare and what do you need to know for the deposition itself?
DO: Thoroughly review your file, especially regarding issues contained
in any pending petition for benefits. Your deposition will likely focus
on issues surrounding the benefits requested in that petition for benefits,
though that is no guarantee, and especially whether the medical benefit
was authorized and when, and whether the indemnity benefit requested has
been paid and when. You may be wondering, why are those questions asked?
Claimant’s counsel is likely trying to pin the carrier down on its
position on a benefit, compensable body parts, etc. such that the employer/carrier
may be estopped from taking an alternative position at a later time. It
could also mean claimant’s counsel is seeking an employer/carrier
paid fee if one of those requested benefits is denied or if the petition
for benefits is not answered within 30 days of its filing, and the benefit
is ultimately provided. Bottom line, it is always good to know your file
as thoroughly as possible prior to your deposition.
DO: Always have a pre-deposition conference with your attorney. This helps
to narrow the likely issues which will be addressed, anticipates potential
questions, and assists you in how to best answer the deposition questions
posed to you.
DON’T: Answer anything more than the question posed asks you. If
it is a question that can be answered with a “yes” or “no”
answer, answer “yes” or “no”. Don’t explain.
If claimant’s counsel wants more detailed information, he/she will
ask. If further explanation is necessary on the employer/carrier’s
part, your attorney can address such upon cross-examination.
DON’T: Speculate. If claimant’s counsel asks a “what
if” question, how do you respond? What if the treating doctor recommends
pain management, will you authorize it? What if the claimant has not returned
to work earning 80% of his/her average weekly wage, will you pay temporary
partial disability benefits? Best answer to these questions: I can’t
answer that question at this time, as I would be speculating without having
all the proper information. Bottom line: Never answer a question for which
you are not sure of the answer and never speculate as to an answer, as
your answer may be used as a sword against you later.
DON’T: Answer questions posed to you if your attorney has stated
an objection to the question. Once the objection is posed, if the objection
is based on a privilege such as attorney-client privilege or work product
privilege, you will likely be instructed not to answer. However, for other
objections, such as relevance, compound question, etc., you may be instructed
to go ahead and answer. Either way, your attorney should instruct you
whether answering the question, as posed, is appropriate.
These are just some of the basic dos and don’ts of an adjuster deposition.
Basically, you need to know the specific nuances that your case may have
by thoroughly reviewing your file, be prepared for the likely questions
as much as possible, and hold a pre-deposition conference with your attorney.