Younger: Efficient Publish-Termination Deposition Methods| Staff Compensation Information
By Glen E. Young
Monday, July 19, 2021 | 0
After more than 2,000 filings in 25 years, I have found that the essential questions and strategies are usually used too late. Many of the applicants’ attorneys refuse to allow a second deposit, except for those who are only included for LC 5710 fees.
In the early years of giving testimony, and as an astute student of the importance of thoroughness, I would ensure that I received all of the applicant’s previous addresses, employment relationships, spouses, children, grandchildren, and hobbies. In between and the admonition, I would have very little time to get into the essentials. Although these questions can be helpful for Sub Rosa and Splitting, it’s only a screwdriver if a hammer should be used.
The purpose of the deposit is far more than a fact-finding mission. It really is a “clue” for your applicants’ attorney and for the coroner who will read the transcript, defense of the lawsuit, and the embarrassing story that may be in the personnel files.
In many cases, the claim is resolved upon filing, without expensive legal disputes, if an initial settlement offer and a carefully checked personnel file are received.
My best leverage has always been a full write-up review and disciplinary action. This is an excellent opportunity to indict credibility. I have had many applicants who refused letters and refused discipline, only to be miraculously remembered later.
Just like with the ISO and the previous violations, the question arises whether I would rather “lock up” the applicant in a story of lies or use the information to settle it. These are two completely different ideologies and you must choose the best strategy for your particular situation.
Of course, if you know the case is going to go to court, I would not correct the complainant’s testimony and let the lie “linger”. However, due to the reluctance of the Workers’ Compensation Appeals Board to enforce a post-termination defense on cumulative trauma claims, most of these cases are either settled with the filing or referred to a PQME rather than a judicial process.
Therefore, I want the PQME to be aware of the inadequate incentives to bring a lawsuit and to acknowledge any inconsistencies and previous violations.
The first PQME reports I receive on post-detention cases invariably indicate that the applicant is temporarily partially disabled or temporarily fully disabled. In addition, they use “Chart Lore” and often only stamp the PTP results on the disability status.
Success in resolving these filing claims or influencing the PQME reading the filing log requires a focused approach. Here are some obvious and essential questions:
- Always ask if the applicant worked with anyone prior to being fired or given notice. Usually the answer is no.
- Always inquire whether the applicant missed any work time due to these claims prior to termination.
- Always ask if the applicant was able to go about their usual and customary duties before being fired or given notice.
- Always ask if the applicant has reported pain or injury in writing. I always respond to whoever claims they told a manager that this is controversial and then confirm that they never put it in writing. These questions are extremely important when it comes to a COVID-19 layoff or facility closure as employer testimony may not be available to refute the applicant’s claims.
- Always ask whether there are subsequent employers. I have successfully joined co-defendants for follow-up and secondary employment. In fact, I have several cases where I have argued that the CT continues due to a lack of time and the continuation of the usual and usual tasks. I have applicants who claim their new job will be less stressful. I would then ask for the name and contact details of the current manager. When I then ask what the supervisor wants to testify under oath as a witness, they are usually straightforward with their declaration of duty to work. I just had a laid-off warehouse worker, now at Amazon, who claimed she had “lifted very little”. After learning the name of her manager and following the practice, she willingly admitted that her new job was “exactly the same” as her job with our policyholders.
- Whose decision was that? For psychiatric claims, whether post-termination or not, remember to break down the complainant’s complaint into a decision made. After each complaint, I ask the complainant, “Whose decision was that?” After asking this question at least 25 times during a testimony, you will advise a PQME and the applicant’s attorney that Rolda analysis and litigation may be required are. Applicants’ attorneys do not charge an hourly rate for litigation and large litigation, and this helps with an early resolution.
Take pauses in your testimony after discussing embarrassing attributions, terminations, previous injuries, and false statements, and insist that the applicant’s attorney speak to the client and negotiate in good faith with you. If she refuses to maintain previous claims and personnel file issues, take another break and try again to negotiate settlement. Sometimes it takes three breaks to convince your opponents, but you will do it.
I’ve been using these tactics for decades to keep claims handling very cost effective, and clients have rewarded me with referencing additional files for early solutions. Using these tactics will help you find earlier solutions to resolving cases that could otherwise potentially drag on for years.
Glen Young is a partner in Bradford and Barthel’s Woodland Hills office. This entry from the Bradford & Barthel blog is published with permission.