.png)
(See the article here: Trial News Article)
Taking on a tough case that is already at Superior Court, as a workers’ compensation attorney, is a difficult decision. Especially with the possibility of putting in a significant amount of time with no monetary return in the end. You have to weigh the risk with the reward. And I would be lying if there is not a little bit of morality tangled into that decision, as well when hearing an injured worker’s story. I have had to make this decision multiple times, but the most recent and hardest was with a client who had already been found to have committed willful misrepresentation of his abilities, by a Superior Court jury. The employer was ruthless and had appealed three years of paid time loss benefits on my client’s claim. Throughout this case, I learned that paying very close attention to details is important and can potentially make or break your case. All names in this retelling have been changed.
Mr. Jones was originally injured when his foot was run over by a forklift, while at work.
This injury led to several surgeries, skin grafts and his foot basically exploding out the arch. When I took on Mr. Jones’ case, he had already been found to have willfully misrepresented his abilities and was not entitled to time loss compensation from May 27, 2016 through August 23, 2016, based upon an investigator’s video. After being found to have willfully misrepresented his abilities in Superior Court, there was a new appeal in Superior Court, wherein the employer was appealing Mr. Jones’ entitlement to time loss from August 24, 2016 through June 26, 2019. I took on the task of trying to prove that Mr. Jones was entitled to time loss from the day after he was found to have willfully misrepresented his abilities and for the next three years.
When I first received the case, I realized the employer’s attorney was very well known in the workers’ compensation community, tactical, and had much more than the seven years of experience practicing law than I did. In the end, I think this actually played to my advantage. I think the more we practice, the more we tend to not look at every little detail in our forms, because they have worked in the past. Well, when I took over this case, I looked at the employer’s Petition for Review very closely and found there was a large mistake on his part – he did not dispute the Findings of Facts correctly.
The reason this was so important was because at the Board of Industrial Insurance Appeals, the employer was already disputing the fact that Mr. Jones’ Complex Regional Pain Syndrome (CRPS) was not related to the industrial injury. Well, Finding of Fact No. 2 stated the CRPS was related, as found by the Board, and the employer did not dispute this correctly to Superior Court. Therefore, this led to my res judicata argument later. Within twenty days from the Proposed Decision and Order being communicated from the Board of Industrial Insurance Appeals to the parties, any aggrieved party may file with the Board a written petition for review. WAC 263-12-145(1). I argued that WAC 263-12-145(4) and RCW 51/52/070 required that the Petition for Review shall set forth in detail the grounds for review and the party waives all objections or irregularities not specifically set forth therein. A general objection to findings of fact shall not be considered sufficient compliance, unless the objection shall refer to the evidence relied upon in support thereof.
With Mr. Jones’ case, the Superior Court judge found in favor of the injured worker with regard to Finding of Fact No. 2, because the Petition for Review did not refer to any evidence of any sort that the general objection was relying upon. The employer tried to focus the evidence on all of the witnesses, their viewing of the video, and how that equated to my client not being entitled to time loss. I made sure that it was not only in my argument, but also in the Order as well, that the judge is to instruct the jury which Findings of Fact are not in dispute by either party. This was important because when it came to the trial, the employer’s counsel argued it was unfair to instruct the jury in the jury instructions, because it allegedly made it complicated. The judge shut this argument down and stated it was already in the Order previously entered and, therefore, she would instruct the jury. I believe this to be an important aspect because it helps make it clear to the jury that they must take those facts as true and I believe helped make a favorable decision for my client. This may not have been a huge win in the current case, but I knew having the CRPS in the Superior Court order would matter, when looking at the end of the claim.
The employer brought a Motion to admit the investigator’s video. It was crucial for the employer to get the video admitted and for me to keep it out. The first issue was that the Board had lost the copy of the video in the transfer from the Board to Superior Court. Because of this, I argued that there was a chain of custody issue. The employer then argued that the copy they were submitting, with the testimony from the prior willful misrepresentation case, was enough to get it admitted. I argued, in addition to the large chain of custody issue, there was unfairness considering in this new Board hearing, we did not have the opportunity to cross-examine that witnesses since it was in the prior case. The judge mainly relied on the chain of custody argument in her ruling and denied the admission of the video into this hearing. This was very important in the trial, considering the outcome at the first one. Although we do not believe the video showed anything damaging, it clearly swayed the prior jury and I did not want to give this new jury the opportunity to view it.
Another detail I caught was that the employer did not properly lay the foundation under 403 and 703 for some of the witnesses that testified. In workers’ compensation cases, they are unique in that there are no live witnesses at Superior Court. Instead, the witnesses’ prior testimony is cleaned up by the attorneys, agreed upon, and then read to the jury as if it were a play. I brought another Motion in Limine to strike several witnesses’ testimony due to it being prejudicial for the testimony to be read to the jury, due to it being a recitation of what the video showed and that under 703, the employer did not lay the foundation for the witnesses to testify about others’ opinions. I did not win on all witnesses, but I did win on the only vocational counselor the employer had testify, which struck a significant amount of opinions. A vocational counselor is significant in a case like this because their opinion holds weight on the injured worker’s ability to work, which would stop their time loss. In striking the amount of testimony of their vocational witness, I was able to essentially make this testimony useless, as the jury had no foundation for the opinion of this witness.
Later in the trial, I renewed several objections in the record being read to the jury, including several where the employer had the witness looking up an article on the internet and testify about what they were seeing, without any foundation. I argued there was a lack of foundation laid by the employer and there was nothing in the record showing that the article, via Google, fell within the exception to hearsay. The judge agreed and we struck several pages of testimony out of the record. This was another win by paying attention to the details of the prior testimony and noticing that the employer did not lay the proper foundation while in the midst of getting the doctor to go along with his questioning about the article on Google.
My goal going into the trial was to take the focus off of the unseen investigators video, and instead concentrate on my client’s inability to work, the extent of his injuries, and to humanize my client to the jury. So often in these types of trials, the humanity of the injured worker can get lost due to no actual witnesses testifying. They did not get to see my client talk about his injuries and the effect on him. When the verdict was read at the end of the trial, it was a unanimous decision in favor of my client.
So what did I learn from this trial? Well, I learned that the details matter and can make or break your case. I learned that sometimes those details may not fully benefit you in the moment, but when playing the long game, they can help. I learned to file the motions, despite how tedious they can be. I learned to not back down, nor feel intimidated, when there is a far more experienced attorney on the other side because I am just as capable. And finally, I learned to never give up when you believe you are right, because the reward is worth the risk.