Written by Franice B. Georges, Esq.
Edited by Bob McAdam, Esq.
The recorded statement can be an extremely important tool in defending a workers’ compensation claim. It is an opportunity for the claims handler to speak with the injured worker close in time to the work accident, when memories are the freshest and before outside influences can affect the worker’s version of the accident. You should think of this as an opportunity to thoroughly investigate compensability and to lock in the injured worker’s version of the accident and claims of injury. But, it can also be used to gather important collateral information including the injured worker’s health history, claims history, employment history, identification of witnesses, and subrogation possibilities.
Taking an effective recorded statement involves preparation, strategy and listening skills. Based on the information you gather from the employer during your initial investigation about the type of accident and injury, take a moment and think about the types of questions you will want to ask. In addition to the standard questions including contact information for the injured worker and the facts of the accident and injury, consider other things that are a little outside the box that could lead to some helpful information. For example, are there other plausible explanations for the injury outside of the work environment, like hobbies, sports activities, motor vehicle accidents, or pre-existing medical conditions? If the injured worker identifies other potential explanations for the injury, you now have additional avenues to investigate. If the injured worker does not identify potential explanations for the injury and it turns out later that in fact, there are other potential explanations, defense counsel can use the recorded statement to impeach the credibility of the worker. So, sometimes what the injured worker fails to reveal when asked a direct question can be just as useful as what they do reveal.
Get a detailed explanation of the injured body parts and when the worker first felt pain or symptoms in that body part. Some injuries will cause immediate pain. If the worker does not report immediate pain in that body part, then there may be an argument that the injury was not caused by the work accident. If the injured worker does not identify an injury by the point in time of the recorded statement, there may be an argument that the injury is unrelated to the work accident. Ask the injured worker to identify all medical providers they have seen in the last 15 years. This will give your defense counsel a head start in issuing subpoenas without having to wait until discovery is answered. Ask the injured worker to identify witnesses to the accident, but also ask them to identify other people that they work with regularly. This information can lead you to people who can potentially identify discrepancies in the injured worker’s injury claims. Ask the injured worker about pre-existing conditions, when they last treated for those conditions, and who they treated with for the pre-existing condition. This information can then be further investigated through issuance of subpoenas or the formal discovery process. The issue of medical causation is something that will require expert testimony; however, if the injured worker fails to identify relevant pre-existing conditions, treatment or medical providers when asked in the recorded statement, this can be used by defense counsel to challenge the worker’s credibility.
When taking the recorded statement, listen carefully to the response by the injured worker and use some strategy in deciding whether to ask follow up questions. Sometimes, you will need to ask follow up questions to clarify the worker’s answer, but even more importantly, the worker’s answer may signal to you that you should not ask additional follow up questions. For example, if you ask an injured worked about an injury from a fall and the worker clearly states they do not know why or how they fell, then do not ask additional questions about the cause of the fall. It is the worker’s burden to prove that they suffered a compensable work accident. By inquiring more about the cause of the fall under these circumstances, you may unknowingly suggest to the injured worker that they need to come up with a reason for the fall. On the other hand, for example, if the injured worker reports that they fell while walking down an incline, then this should prompt additional questions about the incline. How steep was the incline? Where was the worker’s attention directed? Did the worker have anything in their hands? Was there anything about their employment that led to the fall? Did the incline cause the fall? How did the incline cause the fall? If you can get very specific details about why and how the fall occurred in this circumstance, it will assist you in making a determination about whether to accept or deny the claim.
Do not limit yourself to just taking the statement of the injured worker. Consider taking the statement of fact and eyewitnesses also. This is important to do because statements from more than one individual can be compared to identify discrepancies in the description of the accident, of body parts allegedly injured, or the injured worker’s past medical history. You may also consider the order in which recorded statements are taken. It might be wise to take a statement from the injured worker last, especially if an affirmative defense is available (horseplay, course and scope, personal animus, willful misconduct, etc.). After questioning the employer and any witnesses, you can then frame your questions to the injured worker to elicit information germane to these defenses.
It is advisable to not only prepare a transcript of the statement, but keep the actual recording. This will negate the potential argument by the injured worker that the transcript is not accurate.
Cases can be won or lost with the recorded statement, so they are an extremely important part of the investigation. If you want guidance and tips on how to help tailor your questions to the legal issues/red flags in your cases before you take a recorded statement, feel free to reach out to your defense counsel at KPM Law and we would be happy to assist you!