Articles Posted in Procedural issues

Back on July 31, 2013 I wrote about the discovery requests that defendants ask injured workers in Iowa workers’ compensation cases. You can see that post here.

Today I am going to talk about the discovery that I conduct on behalf of my injured clients in Iowa work comp cases.

The two types of written discovery are Interrogatories and Requests for Production of Documents. In Interrogatories I get to ask the defendants specific questions that they have to answer. With my Requests for Production of Documents I get to require the defendants to give me copies of records and reports that are relevant to the case.

I am giving a presentation at the Iowa Association for Justice Fall Work Comp Seminar that is coming up on September 6, 2013. Here is a modified version of that presentation in which I set out my thoughts on how to best represent injured workers in Iowa workers’ compensation cases.

I. General Philosophy

1. I have developed a lot of check lists and forms, and I keep expanding them every time I run across something good.

In this post I am going to talk about the discovery process in Iowa work injury cases. Discovery is just the legal term for the process of investigating the case and asking the other side questions in a formal process. Both the injured worker and the defendants get to conduct discovery.

Under the discovery rules neither side gets to keep very many things secret. One policy idea behind not allowing secrets is that if each side has a clear and complete view of the case they can probably work out a fair settlement. A second policy idea behind the discovery process is to have the cases tried and decided on the merits, and avoid what used to be called “trial by ambush.”

Today I am going to start by talking about the usual discovery that the defendants conduct. In a later post I will talk about the discovery I conduct on behalf of injured workers.

In Iowa work injury cases the insurance companies and employers will sometimes conduct surveillance of the injured worker. The surveillance is usually done by companies that specialize in this type of work. The parties conducting the surveillance will secretly follow a worker for one to three days and videotape and/or photograph the worker to the extent possible. If a worker has claimed that they are severely disabled, and the defendants can obtain video and photographs showing the worker being involved in strenuous activities that is helpful evidence for the defense that the worker has exaggerated the extent of his injuries.

The Iowa case law is full of examples of videos and photos of injured workers performing activities that they claimed they could not do. Surveillance teams have been able to show injured workers doing things like helping to roof their own home, carrying large appliances out of stores, digging fence posts, laying sod, and planting fairly large trees by hand.

Under Iowa law the defendants traditionally have not had to reveal their surveillance evidence until after they have had an opportunity to take the deposition of an injured worker. A deposition is part of the discovery process in Iowa workers’ compensation cases in which the defense lawyers get to interview the injured worker in person. The injured worker is sworn under oath to tell the truth, and a court reporter takes down all of the questions and answers, and types them up in a written form that is called a transcript. The deposition transcripts can be used as evidence at the workers’ compensation trial. As part of the deposition the defense lawyers will ask the injured worker about his activities in such a way to try to hide from the worker that surveillance had taken place. The best possible results from a defense point of view is if a worker will deny doing the type of activities that he is actually shown performing in the surveillance video. The defense then has the double prong attack of being able to say that the worker not only exaggerated the extent of their disability, but lied about it under oath.

Today I am going to write about some of the situations that I have seen come up recently in work comp cases in which injured workers ran into trouble, or almost ran into trouble because they did not talk to a workers’ compensation lawyer about their claim. These examples are only the tip of the iceberg. There are an almost infinite number of things that can go wrong, and every case has its own wrinkles and variations.

MISCALCULATING YOUR DEADLINE FOR FILING A WORKERS’ COMPENSATION PETITION. The general rule in Iowa is that if you are injured on the job, but are never paid workers’ compensation benefits, you have to file your workers’ compensation petition within two years of the date of injury. Alternately, if you are injured on the job and are paid workers’ compensation benefits, then your time deadline for filing your workers’ compensation petition is within three years of the last payment of monetary workers’ compensation benefits to you. See here for my March 27, 2013 blog entry which discusses Iowa work comp time limits in greater detail.

Lane v. Spencer Municipal Hospital, Case No. 3-226/12-1358 (June 26, 2013) is a recent decision from the Iowa Court of Appeals that talks about one of the ways that the time deadline can be miscalculated. In the Lane case the plaintiff was injured on February 28, 2010 and filed their petition on February 29, 2012. The plaintiff’s argument that the petition was timely was based in part on Iowa Code Section 4.1 that provides that in computing time limits the first day is excluded, and the last day is included. Therefore, the plaintiffs in Lane argued that they were entitled to exclude February 28, 2010 when they were injured, and the clock started ticking on March 1, 2010. They then reasoned that moving forward 24 months from March 1, 2010 took them to March 1, 2012. Therefore, the plaintiffs believed that they should have up until the last second of February 29, 2012 for filing their petition. The plaintiff’s position is reasonable, and one member of the Court of Appeals agreed with the plaintiff. However, the majority of the Court of Appeals found that the plaintiffs filed their petition one day too late, and therefore their claim was completely barred. The leap year angle in the Lane case is unusual, but there are literally hundreds of Iowa cases dealing with different disputes that arise in calculating the time limits for filing lawsuits.

There is an old saying that you should never say or do anything that you would not want to show up on the front page of the New York Times. I have always thought that was good advice, and with a few unfortunate exceptions I have generally been able to follow that rule.

However, in the modern world of social media such as Facebook, Twitter, Google Plus, etc., etc. many people actually create a record in electronic words and photos that they might have not wanted to share with the world if they had given it a little more thought. In the last several years the issue of whether claimants in all kinds of injury cases can be required to share their social media accounts in the discovery phase of their cases have become a big issue all across the country. The states have varied quite a bit in their decisions of how much of an injured worker’s social media history can be discovered and accessed by the Defendants. However, it is a strong possibility that such access will be required in Iowa workers’ compensation cases. It has already become fairly common in Iowa for the defense lawyers to request access to the accounts of injured workers.

An injured worker social media account could hurt his workers’ compensation claim in any number of ways. In cases across the country either civil courts or workers’ compensation tribunals have barred or lowered damages for claimants based on evidence from social media accounts.

At an Iowa workers’ compensation trial I need to prove that my client’s injuries arose out of and in the course of their employment, and I have to prove the extent of their damages, and how much money they are entitled to receive. (See here for more detail on what happens at a workers’ compensation trial, and see here for more details on the factors that go into proving how much money an injured worker is entitled to receive). In order to be able to prove the amount of damages it is usually necessary to use one or more expert witnesses. (See here for more details on the use of medical experts, and see here for more details on the use of vocational rehabilitation experts).

In the Iowa workers’ compensation system there are a lot of time deadlines relating to evidence. For example, you simply can’t bring an expert to trial, or submit an expert report at trial without telling the other side. There are very specific time requirements about giving the other side notice of your intent to use experts, and providing the expert reports to opposing counsel a certain amount of time before trial.

In the rest of this blog post I will talk about how an injured worker’s medical status and the expert disclosure rules impact how quickly a case can be brought to trial.

In Iowa workers’ compensation cases there are two different sets of time limits that you have to comply with. First, if you are injured you need to give your employer notice of your injury within 90 days of the injury. Second, if you are an injured worker you also need to file a Workers’ Compensation petition within either two years of the date of injury, or three years of the last payment of weekly benefits.

These time limits are somewhat like a shot clock in basketball. A shot after the clock has run out does not count. If an injured worker gives their notice of injury after the 90 day time limit, or files a petition after the time limit, the worker’s claim may be denied, and the injured worker will not be entitled to receive any workers’ compensation benefits.

NOTICE REQUIREMENTS. Iowa Code Section 85.23 sets out the requirements concerning notice. Basically the statute requires that an injured worker needs to give formal written notice of the injury within 90 days that complies with the statutory requirements unless the employer has “actual knowledge of notice of an injury within ninety days” from the date of injury. The requirements of the written notice are set out in Iowa Code Section 85.24.

Under Iowa law an employer must provide workers’ compensation insurance for all of its employees. However, an employer is not required to provide workers’ compensation insurance for an independent contractor.

The line between who is an employee who is entitled to work comp benefits, and who is an independent contractor who will not receive workers’ compensation benefits can be very hard to determine.

In the 1931 case of Mallinger v. Webster City Oil Co. the Iowa Supreme Court came up with the test for determining who is an employee and who is an independent contractor that is still followed today. The test requires looking at eight factors, and no single factor is necessarily controlling.

Today I am going to write about some of the more common situations where an injured worker may not qualify to receive Iowa work comp benefits. In all of these areas the specific facts of the case are extremely important, and if you fall into any of these situations you should talk to a lawyer to help figure out whether you may qualify for Iowa Workers’ Compensation benefits, or another remedy.

OWNER-OPERATORS OF TRUCKS. Truck drivers who are regular employees of a trucking company are covered by workers’ compensation law. (There are some very complicated issues concerning the correct state where a truck driver work comp case should be filed, and I will talk about that issue down the road).

However, a truck driver who functions as an owner-operator for a trucking company may not be covered with Iowa workers’ compensation benefits. The controlling statute on this issue is Iowa Code Section 85.61(.11)(c)(3) The statute provides that if all of the following conditions are substantially present then the owner-operator will not be considered to be an employee who is entitled to workers’ compensation benefits: