The Process of Preparing for a Hearing, Mediation, and Other Litigation Matters for a Workers Compensation Case
 
 

The Process of Preparing for a Hearing, Mediation, and Other Litigation Matters for a Workers Compensation Case

There is an enormous amount of material that must be reviewed during a Workers' Compensation case, and having an attorney to help you through the process of preparing for a hearing, mediation, and other matters concerning the law might prove to be essential depending on your circumstances.

In the Workers' Compensation system, there are different types of hearings. A hearing is when you go before an authority to present information.

Pre-trial Hearings

A pre-trial hearing is a meeting with a judge or a hearing officer that happens before a trial, if the parties have not been able to reach an agreement on their own.

In most circumstances, a judge will attempt to forge an agreement between the parties in order to avoid a costly hearing, and to save time. Trials consume money and resources, and there is usually a backlog of cases. Your attorney will fill out a pre-trial form which is presented to a judge, and the judge will set a date for the final hearing. If you have hired the services of an attorney, you normally do not attend a pre-trial hearing. Your attorney will represent you at the proceeding.

Motion Hearings

A motion hearing usually deals with one particular question or issue. A matter will be brought to the attention of a judge, and each side will have a chance to make their argument. For example, many motion hearings deal with whether a particular exhibit may be entered into evidence. The judge will decide after hearing the arguments from both parties, but if you have the services of an attorney, you will most likely not need to attend a motion hearing.

Mediation

If both parties did not come to an agreement during the pre-trial hearing, there are other opportunities for both sides to come together to try to reach an agreement. This process is called mediation. It is an opportunity for each side to offer information and alternatives to help avoid the costliness and time consuming elements of a trial. In the Workers' Compensation system, mediation has been very effective. There are many instances when both parties can reach an agreement. A judge is not involved in the mediation process. An employer, or the employer's insurance adjustor, will meet with a worker and his or her attorney to attempt to reach an agreement. All parties must be present at mediation, although it is not necessary to reach an agreement. If both sides cannot compromise, you may agree to meet again later or simply agree to proceed to trial.

In cases when mediation is successful, an employer will agree to settle the case out of court. It will be very beneficial for you to have an attorney present so that he or she may advise you on whether the offer from the employer if a fair and equitable amount.

During a mediation session, a mediator will be present. This person is not a judge, but a trained individual that assists people to have an open discussion and reach an agreement. The judge in a Workers' Compensation case is never informed of any discussions that occur during a mediation session.

Deposition

A deposition is a statement or testimony that is given under oath and recorded so that it may be used in a court proceeding. It is a part of the discovery process by which both sides in a case attempt to gather information. If your testimony is required, then sufficient notice must be given to your attorney. A subpoena, which is an order to appear, may be served on you if you are reluctant to appear. The purpose of a deposition is to give all parties a preview of the evidence that will be presented at trial. Surprises in a trial are purely reserved for fictional representations of a trial, in reality, surprises are regarded as an unprofessional tactic and not used.

A deposition will usually last about one or two hours. In a Workers' Compensation case, you will be asked a variety of questions in a deposition, such as your personal history and background, your training, your skills, medical history, and it may even include questions about other lawsuits in which you have been involved.

Your deposition is crucial to the outcome of your case. Your behavior, your answers, your appearance, and the validity of your answers will play a significant role in the outcome of your case. During your deposition, it will usually be the first time that you meet the attorney for the opposing side. It is important to start off with a good impression.
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The Trial

Being in a legal battle is a stressful experience, and the most stressful element for many people is the day that you must appear in court. One side is going to win, and one side is going to lose. Unlike mediation, in which there is compromise and negotiation, a court proceeding is where you argue to win your case.

If you have reached the point where you are in a courtroom, you should feel fairly certain that you have a strong case. If you do not feel that your evidence is sufficient, you may be better off reaching a compromise with the other party. You should also be prepared for potentially embarrassing and difficult moments in a trial. The opposing attorney will present all evidence that attempts to portray you as being untruthful or wrong in your assessment.

Before going to trial, your attorney will meet with you to discuss his or her strategy. During the discovery process, your attorney has gathered a great deal of information about the case, and he or she will best know how to present the evidence.

Your attorney, of course, will appear with you in court. You will be seated in front of a judge or hearing officer. Each side will open with a statement. This is your attorney's opportunity to give a brief overview of the case and to briefly state the merits of your case.

A judge's obligation in a courtroom is to ensure that everyone's rights are protected. As lawyers object to evidence, for example, he or she will make the final determination if the evidence is admissible or if it is being presented in a fair manner. If an attorney asks an unfair, or even an illegal question, the opposing attorney can object to it and the judge will, most likely, "sustain" the objection, which means that he or she agrees that the question is not allowed.

Your behavior in court will be important. You should be courteous at all times, and look presentable. You should dress appropriately and project an image of confidence, but you should not appear arrogant. Most importantly, you should be truthful. There are severe penalties for lying under oath, and a lie will, in many instances, cause you to lose your case.

When answering a question in court, carefully consider the question before giving a response. If you do not understand a question, you may ask for it to be clarified. If you do not know the answer to a question do not guess; simply say that you do not know the answer.

If you portray an image of honesty and fairness, you will positively affect the outcome of your case, and you will ensure that justice is done and that you are fairly compensated for your work related injuries.

Financial Considerations

Going through the Workers' Compensation process can be particularly stressful for people with limited means. While Workers' Compensation provides income benefits for most people, there is still some financial hardship that many people endure due to a variety of factors. These factors include having slightly less income, the burden of some legal fees, some medical expenses, and other expenses related to your claim. This articles will address answers to some commonly asked financial questions dealing with Workers' Compensation.

One of the most commonly asked questions is, "Are my Workers' Compensation benefits taxable?" The good news is that the answer is no. The amounts of income you receive in Workers' Compensation benefits are fully exempt from both state and federal taxes. This tax exempt status also applies to survivors, for example, a spouse who will continue to receive benefits after a worker's death.

It is important to keep in mind however, that some retirement benefits are not tax free, even if one was forced to retire due to a Workers' Compensation injury. The tax exemption applies only to the specific Workers' Compensation benefits. It should also be noted that both weekly income checks and lump sum settlement amounts are exempt from both state and federal tax. If a worker returns to work on light duty or modified work, the income earned while working is taxed at your normal tax rate.

Special tax rules apply to Social Security benefits. Generally speaking, if Social Security benefits are your only source of income, they are not taxable. But, there are different types of Social Security benefits and they are treated differently for tax purposes.

Supplemental Security Income (SSI) is always exempt from both state and federal taxes. Other benefits, such as survivor benefits and Social Security Disability Income (SSDI) may be taxed if you have other sources of income. In general, some income you earn from the government may be taxable if you have other sources of earned income. This does not apply to Workers' Compensation income, which is always tax exempt.

Disability payments from insurance companies do not affect your Social Security disability benefits. However, Workers' Compensation and other public disability benefits may reduce your Social Security benefits. They may be paid by federal or state agencies, employers, or by insurance companies on behalf of employers. Other public disability payments that may affect your Social Security benefits are those paid by a federal, state, or local government, for example: civil service disability benefits, state temporary disability benefits, and state or local government retirement benefits that are based on disability. If you receive Workers' Compensation or other public disability benefits and Social Security disability benefits, the total amount of these benefits cannot exceed 80 percent of your ­average current earnings before you became disabled.

Lump Sum Settlement

If you are receiving Worker's Compensation benefits, you may be entitled to a lump sum settlement. This is a very important decision that can have a good deal of financial considerations. You should consult with your attorney, and keep in mind that most attorneys will collect 20% of all lump sum payments as their fee.

Before agreeing to a settlement, there are some important questions that you will want to address with your attorney:

  • Will you require continued medical care, and will the lump sum cover all of these expenses?
  • If you are permanently disabled, either partially or totally, does the settlement cover all of your lost wages and your future earnings?
  • Will the settlement provide financial security for you and your family?

Bankruptcy and Workers' Compensation

Unfortunately, even people who successfully file a Worker's Compensation claim and collect benefits find themselves in a situation where their obligations far exceed their income or net worth. Bankruptcy is an option for many of these people, and there are important considerations to think about.

There are two different types of bankruptcies. In Chapter 7 bankruptcy, all of your assets are liquidated and paid to creditors, and many of your remaining debts are forgiven. Some of your assets may remain protected and not liquidated, and these assets vary from state to state.

In Chapter 13 bankruptcy, you are put on a five-year payment plan. Some of your debts will be canceled, and any debt not covered under the payment plan is forgiven.

In recent years, laws have been passed that make it more difficult to file under Chapter 7 bankruptcy, and more people are being forced to file under Chapter 13. Also, new laws require that a person who is considering bankruptcy meet with a credit advisor within the six months prior to filing a bankruptcy petition. People who file for bankruptcy must also take money management courses at their own expense.

Your income will determine whether you qualify for Chapter 7 bankruptcy. The formula to determine if you are eligible exempts certain necessary expenses like food and rent. In general, you will not be able to file Chapter 7 if you are able to pay off 25% of your "non-priority unsecured debt," such as credit cards, or if your income is higher than your state's median income level. If you are not permitted to file Chapter 7, you may file for Chapter 13 bankruptcy. If your income is below your state's median level, but you are able to pay at least 25% of your unsecured debt, some courts will still prevent you from filing Chapter 7 bankruptcy.
 
 
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