Technical Court Rules Limit What You Can Place in Evidence
The rules of civil procedure at the Board are the same technical rules as exist in Superior Court. This favors defense interests such as the Washington State Department of Labor & Industries and Self-Insured Employers who have the financial ability to hire L&I attorneys to navigate the technicalities.
Procedures at the Board differ from the way evidence is presented to the Washington State Department of Labor & Industries. For the most important example at the Department, hearsay is allowed and will be considered. At the Board, hearsay will almost always be rejected and excluded from the record without consideration. Knowing how to navigate around this and other technical rules may make the difference between winning your case or losing.
What is Hearsay and Why is My Doctor’s Written Opinion Excluded?
Hearsay is “an out-of-court statement offered to prove the truth of the matter asserted therein.” For example, when your doctor writes a medical report or narrative describing your need for medical treatment related to an industrial accident or occupational disease, that document will almost certainly be considered hearsay and excluded from the evidence the Board is willing to hear.
Why? Because the doctor was not in court when (s)he authored the opinion. The doctor was not subject to the rigors of cross-examination, so their medical opinion is not deemed sufficiently reliable. If you offer your doctor’s report to the Board of Industrial Insurance Appeals Judge presiding in your Board matter, the IAJ will likely reject it under Court Rule 802, unless an exception applies. Seldom do exceptions apply, and even when they do, the judge cannot consider the doctor’s opinion for the “truth of the matter asserted” within that opinion. If you attempt to offer your doctor’s medical report as support for your case, the judge will not allow this because Court Rule 802 prohibits it.
What’s the Solution to the Hearsay Problem?
The only effective way to have your doctor’s opinion considered is to arrange for it to be subject to cross-examination. In other words, your doctor must testify and be subject to vigorous questioning by defense counsel. Of course, this raises a further procedural problem because the Board does not allow unrepresented injured workers to call their doctors in for a deposition. Therefore, the doctor must literally come to court on the date the judge sets for trial. Often times a doctor is not willing to give the time and effort necessary to testify in court for your medical condition.
Meanwhile, the injured worker cannot force a doctor (even with a subpoena) to testify to an opinion without being fairly compensated. Most doctors will not take a day off from their busy medical practices to trudge into court to testify for their injured worker patient. The solution is to hire an L&I attorney. The judge will allow the labor and industries attorney to set up a deposition at a time and place that is convenient and agreeable to both sides. Often times these depositions happen early in the morning or later in the evening, outside the doctor’s normal business hours for treating patients. The L&I attorney will arrange for a court reporter and proper filing of the deposition transcript.
Do I Need An L&I Attorney at The Board of Industrial Insurance Appeals?
Yes. Your L&I attorney will prepare your testimony so that you hit all of the legal requirements in your burdens of proof. Your labor and industries attorney will tell you how to dress and behave, as well as when to speak up versus be quiet. The questions designed by your L&I attorney will allow your story to be told in an organized manner that the judge and/or jury can follow. An experienced labor and industries attorney will protect you from overbearing while protecting you from improper questions that can otherwise be asked by defense counsel (because they are not precluded unless there is a proper objection). If you are appearing at the Board, even for mediation, you should have an L&I attorney.
What Does An Excellent Testimony Sound Like?
Click here to open the following document to see the excellent testimony of an operating engineer (heavy equipment) represented by Washington Law Center in a successful trial before the Board of Industrial Insurance Appeals. This testimony is presented by prior written authorization of our client. Note that our client’s testimony is clear and compelling. All objections by opposing counsel are swiftly pushed to the side by the presiding judge. This was a rejection case (the Department denied this injured worker’s claim) until Washington Law Center arranged the capable testimony of an Occupational Medicine Physician and an Orthopedic Surgeon to testify on our client’s behalf. Our client did a commendable job of sticking to what needed to be proved based on our pre-trial preparations. This is what a win looks like at the Board of Industrial Insurance Appeals!
Preparing for Your Board of Industrial Insurance Appeals Appearance
If you need help with your Board of Industrial Insurance Appeals, it is in your best interest to contact one of the experienced attorneys of Washington Law Center for a free consultation immediately. Get in contact with us!
ABOUT THE AUTHOR:
Partner Labor & Industries / Personal Injury Attorney