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Young: Effective Post-Termination Deposition Strategies

  • State: California
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After taking more than 2,000 depositions over 25 years, I have realized that the essential questions and strategy are normally not employed until it is too late. Many applicants' attorneys refuse to allow a second deposition, excluding those who are just in it for the LC 5710 fees.

Glen E. Young

Glen E. Young

My first several years taking depositions, and as an astute student of the importance of thoroughness, I would make sure to get all of the applicant’s prior addresses, employment, spouses, kids, grandchildren and hobbies. Between that and the admonition, I would have very little time to get into the essentials. Although these questions may be helpful for sub rosa and apportionment, it is merely using a screwdriver when a hammer should be employed.

The purpose of the deposition is much more than a fact-finding mission. It is really a “clue” to your applicants' attorney and to the panel qualified medical examiner who will read the transcript, of the defenses of the claim and the embarrassing history that may be present in the personnel files.

In many cases, the claim resolves at deposition, without expensive litigation when an initial settlement offer is received, and a carefully reviewed personnel file.

My best leverage has always been a full review of the write-ups and disciplinary actions. This is an excellent opportunity for impeachment of credibility. I have had many applicants deny write-ups and discipline, only to later miraculously remember.

Just as with the ISO and prior injuries, the question arises as to whether I would rather “trap” the applicant into lying for trial, or use the information for settlement. These are two completely different ideologies and you have to choose the best strategy for your particular situation.

If you know the case will go to trial, I obviously would not correct the applicant’s testimony and let the lie “linger.” However, due to the Workers' Compensation Appeals Board’s disinclination to enforce a post-termination defense on cumulative trauma claims, most of these cases either settle at deposition or will go to a PQME instead of trial.

Consequently, I want the PQME to be well aware of inappropriate incentives to bring an action and to appreciate all of the inconsistencies and prior injuries.

The first PQME reports I am receiving on post-term cases inevitably indicate that the applicant is temporary partially disabled or temporarily totally disabled. In addition, they employ “chart lore” and often merely rubber-stamp the PTP findings on disability status.

Success in resolving these claims at deposition or influencing the PQME who reads the deposition transcript will require a focused approach. Here are some obvious and essential questions:

  • Always ask if the applicant treated with anyone prior to her layoff or termination. Normally the answer is no.
  • Always ask if the applicant missed any time from work as the result of these claims prior to termination.
  • Always ask if the applicant was able to work his/her usual and customary duties prior to the layoff or termination.
  • Always ask if the applicant reported any pain or injuries in writing. I always respond to the one who claims he told a supervisor that this is disputed, and then confirm that he never put this in writing. These questions are extremely important when dealing with a COVID-19 layoff or closure of a facility, as testimony from employer witnesses may not be available to rebut the applicant’s claims.
  • Always ask if there are any subsequent employers. I have successfully joined co-defendants for subsequent and concurrent employment. In fact, I have several cases in which I have argued the CT is continuing due to a lack of missed time and continuance of usual and customary duties. I do have applicants who claim that their new employment is less arduous. I would then ask for their current supervisor’s name and contact information. When I then ask what the supervisor will testify to under oath as a witness, they usually become straightforward with their explanation of work duties. I just had a terminated warehouse worker, now with Amazon, claim she did “very little lifting.” After learning her supervisor’s name and employing this practice, she readily admitted that her new job was “exactly the same” as her work with our insured.
  • Whose decision was that? On psychiatric claims, whether post-termination or not, remember to break down the applicant’s complaints to a decision that was made. After every complaint, I ask the applicant, “Whose decision was that?” After asking that question at least 25 times during a deposition, you will clue a PQME and the applicant’s attorney into the fact that there will be an eventual Rolda analysis and trial required. Applicants' attorneys do not make an hourly rate for trials and extensive litigation, and this will assist with an early resolution.

Take breaks in your deposition after discussing embarrassing write-ups, terminations, prior injuries and false testimony, and insist that the applicant’s attorney speak with the client and engage in good-faith settlement negotiations with you. If she refuses, keep the prior claims and personnel file issues coming, take another break and attempt settlement negotiations again. Sometimes, it may take three breaks to convince your opposition, yet you will get it done.

I’ve been using these tactics for decades to keep claims handling very cost-effective, and clients have rewarded me for early resolutions by referring additional files. Using these tactics will help get you more early resolutions to settle cases that otherwise could have the potential to drag on for years.

Glen Young is a partner at Bradford and Barthel’s Woodland Hills office. This entry from Bradford & Barthel's blog appears with permission.

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