Post Hearing Evidence in Workers’ Compensation

Bruce Burk

Tampa, FL ( – In workers’ compensation proceedings, most cases resolve through settlement. However, the ones that do not, go to hearing in front of a Judge of Compensation claims. Oftentimes, the Judge does not rule at the final hearing itself but will issue a final order at a later time. On occasion the parties seek to add post-hearing evidence into the decision process of the Judge.

Post hearing evidence is generally not favored. However, many states have provisions that do allow the judge to consider evidence after the parties have already tried the case. This includes not only documents but potentially depositions of witnesses that have not even taken place yet.

Sometimes, the Judge will allow post-hearing evidence if there was a genuine effort to get someone to be deposed or come to a trial but those efforts were not successful. Other times, the Judge may allow the parties to file an exhibit that was discussed at trial but not filed on the docket.

However, relying on the assumption that the Judge will allow you to have post-hearing evidence is extremely risky because it may be denied. This is because the Judge needs to be able to review the record and get an order out. Adding the fact that more evidence will be filed can significantly delay that process.

The Judge may ask for additional case law or legal memorandums on legal issues that come up at trial, which is less problematic because the other side will undoubtedly be allowed to respond.

Allowing post-hearing evidence can be challenging because it can impede the other side from responding to the new evidence. The parties are supposed to disclose the evidence that will be presented at trial in the pre-trial stipulation.

This disclosure allows the other side to have proper due process. The other side could then present evidence to counter it, set a deposition of someone who has knowledge about it, or show the evidence to their own expert witness. When evidence does not go through this process, problems may ensue.

For example, if new medical records or a new deposition is set after a final hearing, the new evidence will not have been reviewed by expert witnesses who have already been deposed. Moreover, any witnesses who were present at trial would not have had a chance to review or respond to the post-hearing evidence.

This is why situations which have depositions scheduled after a final hearing may result in a continuance of the final hearing to allow the parties to have a proper opportunity to be present and respond. However, continuances become less likely the more that they occur and eventually the Judge may deny the right to seek the post-hearing discovery.

Cases are supposed to be tried on their merits and not by unfair surprises or ambushes. Post hearing evidence can create problems for this principle if the evidence is presented untimely to the other side

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