Moving the Goal Post in Workers’ Compensation Litigation

Bruce Burk

Sarasota, FL ( – If you have found yourself dealing with a workers’ compensation claim and asking yourself what the claim is actually for, you are not alone. The pleading standards in many states for workers’ compensation claims is not the high fact pleading or even notice pleading standards that one would normally see in civil litigation. Instead, Petitions often seek benefits in a vague matter which can cause issues for the parties in litigation.

Take, for example, a Petition for Benefits which seeks compensability of a claimant’s back. Here, the Petition does not state the legal theory for which compensability is being sought. Is it based on a specific accident, repetitive trauma, aggravation/exacerbation of a pre-existing condition, a sequela of another compensable injury, occupational disease, or a cocktail of all these theories?

If it was a claim in circuit court, you would have to state the specific theories listed above that the claim is being sought. However, the standards in workers’ compensation do not often require this specificity.

Pleading standards exist to put the parties on notice of what is in litigation. This is a fundamental requirement of due process. To not require the parties to state what the issues are in litigation creates an atmosphere of unfair surprise, shock, and trial by ambush. A trial with these characteristics is not a trial which respects traditional notions of fair play and substantial justice.

You would hope that any confusion or vagueness about what issues are in litigation would be resolved when the parties complete a pre-trial stipulation. However, this does not necessarily happen. Many pre-trial procedure rules only have the requirement that the parties state claims and defenses. In other words, the pre-trial rules do not necessarily remedy the issue because they often do not require the parties to state the specific theory they are proceeding under.

Having vague claims for compensability are most problematic when claimants have prior workers’ compensation accidents that have been accepted as compensable. When this issue exists, there is the possibility for the claimant to assert that a new injury or medical condition is a sequela of a prior accident. The reason this should be more clear in the pre-trial procedures is that the standard of proof can be different for a sequela claim then proving compensability of a new accident or medical condition.

So what do you do if you get a Petition or a pre-trial that is vague? You could file a motion to dismiss a vague Petition, but these motions may not be successful. Often, these Petitions are seen as a gateway filing that allows the Claimant to bring a new claim before the court even if they do not necessarily have the proper medical evidence. You could try and file a motion to strike a pre-trial, but this may not be successful. The best option is arguably to file a motion to compel a more specific claim. These are often seen as a less drastic matter to the court and the court is likely to grant it because it is only a request to clarify something already pled. However, these motions may have mixed success as well.

The practical effect of all of this is claims can change in the middle of litigation. For example, you could be trying a case for compensability of a shoulder and you find out in the deposition of the claimant’s expert that they are trying to link a prior compensable neck accident to the shoulder. However, no such claim has ever been made in a Petition or a pre-trial stipulation. This phenomenon does not represent the type of due process that litigants are owed in the United States. Cases are supposed to be tried on their merits, not on the party’s ability to catch the other side by surprise.

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