HR Fly on the Wall: Workers’ Compensation Preliminary Hearing, Part 3

In Part One of this series, the HR Fly listened in on the beginning of a workers’ compensation preliminary hearing, as the Administrative Law Judge (ALJ) started the hearing, set the parameters and questioned the employment attorney as to the employer’s self-insurance against workers’ compensation claims.

In Part Two of this series, the HR Fly observed as the ALJ issued a ruling on the question of the plaintiff’s classification, either as an employee or as an independent contractor, the result of which was crucial for his workers’ compensation claim.

In Part Three of this series, the HR Fly remains on the wall as the ALJ rules on the controversial question of the employee’s intoxication at the time of his accident, all while battling its desire for sugar. 

HR Fly: I know, I know.  I’m pretty fly for a…fly.  Won’t you join me? 

ALJ: On the question of Mr. Smith’s intoxication, Ihave evidence from Acme in the form of eyewitness testimony from other Acmeemployees, photographic evidence of beer bottles at the work site and a recordfrom St. Mary’s Hospital, where Mr. Smith appeared after his accident. Thatrecord indicates that Mr. Smith refused a breathalyzer test. From Mr. Smith, Ihave his deposition testimony and his personnel record.  Mr. Smith, why did you refuse the breathalyzer test? 

Mr. Smith: Frankly, I was insulted at the suggestion that I was drunk.  I’m a professional and I would never do something like that.  All the Acme guys were always drinking on the job and I didn’t feel comfortable with that.  Acme alienated me because I always refused beer and because I complained about it once.  The guys called me names like “tattletale” and “straight edge.”  That’s part of why I joined the union.  I wanted some job protection working there.  So yeah, after I got hurt and they suggested it was because I was drunk, I was pretty angry so I refused the breathalyzer.  They’re not cops, after all. 

Ms. Jones: Your Honor, we submitted testimony from three different individuals, all of whom witnessed Mr. Smith drinking directly and all of whom swore in their testimony that he was drunk at the time of the incident.  Those statements and the credibility of those witnesses is not up for debate-

ALJ: I beg to differ, counselor.  I am the sole fact-finder here.  If I determine those witnesses are not credible or that their testimony is biased, that’s my prerogative as a judge in this hearing.

Pzzt: This is the case in many preliminary hearings when it comes to workers’ compensation disputes.  Considering the claim has not yet reached the jury trial level, the sole fact finder in the preliminary hearing is likely to be one individual – the ALJ – or a panel of individuals appointed by the state.  Thus, the arguments made by the employer have to be crafted to persuade the ALJ, as opposed to a jury of laypersons who aren’t well-versed in the intricacies of workers’ compensation law. 

Also take note of the employee’s claim that he was retaliated against for refusing to drink on the job.  If the employee can prove that, it severely undermines the employer’s position.

Ms. Jones: Your Honor, the evidentiary record taken as a whole suggests that Mr. Smith was, in fact, drunk.  In addition to the eye witness testimony, we also provided you with photographs of beer bottles at the scene of the accident.  That, the refused breathalyzer and the testimony of our witnesses should weigh more heavily than Mr. Smith’s testimony. 

ALJ: And Mr. Smith alleges that each of those individuals had a reason to fabricate his testimony.  Counselor, do you have any written disciplinary records indicating that Mr. Smith had been warned previously about drinking on the job? 

Ms. Jones: Not to my knowledge. 

Pzzt: Really important point for employers, here.  Documentary evidence, generated in the regular course of business, is always going to weigh more heavily in a fact-finder’s mind than oral testimony, particularly where the two parties had or have a difficult relationship.  Better yet, if Acme had records to match the testimony elicited from its witnesses, its case against Mr. Smith is much stronger.  Come to think of it, I’ve got to get my wings on my Arthropodal Record.  You never know what kind of information is stored in those things. 

ALJIn that case, I find forMr. Smith on the question of intoxication. I note direct evidence on bothsides, eyewitness testimony from Acme and Mr. Smith’s deposition testimony,together with circumstantial evidence in the form of photographs, none of whichdepict Mr. Smith holding a beer bottle, and a refused breathalyzer which, to myknowledge, is not proof of anything other than a man who refused abreathalyzer.

Ms. Jones: Acme would like to reserve its right to appeal that ruling as well, Your Honor.

ALJ: Yes, I figured you would.  As you know, you’ll have to perfect the appeal to the Workers’ Compensation Appeals Board. 

Pzzt: By “perfect” the ALJ means that Acme has to follow the procedure for the appeals process, which is different in every state, and formally submit the appeal, in writing, to the workers’ compensation appeals board.  If the appeal is properly submitted, it is considered “perfected.”  Then, the appeals board will review the ALJ’s finding, determine if the ALJ exceeded his authority in any way or otherwise made a blatant error, and will issue its own opinion.

Alternatively, Acme may decide not to pursue the appeal, having tested the persuasiveness of its arguments with the ALJ.  In that regard, the preliminary hearing may actually save Acme the cost and time of full-scale litigation, even though both rulings were in favor of the employee.  

ALJ: If that is all, this preliminary hearing is over and Mr. Smith’s claim for benefits related to his accident on November 1, 2012 may proceed.

Pzzt: Well, I guess that’s it.  I hope you learned something about workers’ compensation preliminary hearings.  Catch you later at the dumpster? 



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