Getting Ready for the Hearing
This information is provided as a courtesy; it does not represent legal advice. If you are unsure about how to apply this information, you should use your own judgment or that of your attorney.
Do I need an attorney? It is up to you to decide whether to hire an attorney to represent you. An attorney can help you decide whether you need one. You may choose to represent yourself, but an attorney likely is more qualified to help you present your case to the judge. Remember, the judge is neutral and may not give legal advice to you or the other side. If you choose to represent yourself at the hearing, you must be familiar with the workers' compensation law governing your entitlement to benefits. You must also be familiar with rules governing hearing procedures (OAC Rules & DOWC Adjudication Rules) and with the rules of evidence.
Can you give me the name of an attorney who can take my case? OAC staff is not permitted to give you the name of one attorney. You may wish to consult the list of attorneys provided by the Colorado Bar Association. These attorneys usually will consult with you for no charge. Some attorneys will charge a fee only if you recover money in your case. It is up to you to understand the fee agreement with your attorney.
My attorney doesn't answer my telephone calls. May I get a new attorney? Yes, you may get a new attorney to represent you in your workers' compensation claim. It is up to you to contact another attorney. You may wish to consult the list of attorneys provided by the Colorado Bar Association. If you hire another attorney, that new attorney will need to appear for the scheduled hearing or be responsible for rescheduling the hearing. If you hire another attorney, you may be responsible for costs and attorney fees to your previous attorney.
What should I know about the law and procedural rules? You should obtain a copy of the Workers' Compensation Act (Articles 40 to 47 of Title 8, Colorado Revised Statutes), the Division of Workers' Compensation Rules of Procedure (7 CCR 1101-3), and the Office of Administrative Courts Rules of Procedure. You also must be familiar with the Colorado Rules of Evidence.
What kind of evidence will I need for the hearing? You need to think about how you will prove what you are required to prove. You may testify at the hearing and you may also bring witnesses to the hearing who know about the facts and issues involved in the case. You should list yourself and any other witnesses on the Application for Hearing or Response, as well as on the Case Information Sheet. If there are documents, such as letters, contracts, business records, or medical records that help prove your case, bring the original and at least two copies to the hearing. You may also bring photographs or other items that relate to your case if you want the judge to consider them. Documents, photographs, records, and reports can be considered by the judge if permitted by the Workers' Compensation Act or by the Colorado Rules of Evidence. You must provide reports, such as medical and hospital reports, records of your employer, vocational reports and doctors' reports to the other side in the case (or to their attorney if they have one) at least 20 days before the hearing. If you do not exchange the records, the judge may not consider those records or reports. Be sure to read the Procedural Rules for Workers' Compensation cases and follow all prehearing orders issued by a judge.
How do I get records? First, try to get the documents just by asking the other side for them. You also have the right to subpoena from individuals, businesses, and government agencies relevant records to be produced at the hearing. Contact OAC well before the hearing for the subpoena forms. You must arrange to pay required fees, including mileage, and have someone else serve the subpoena at least 48 hours before the hearing, not counting weekends and holidays. You can also obtain records through formal discovery.
What is "Discovery?" Discovery is a formal way of finding out information about the other side's case before the hearing. Discovery includes depositions and interrogatories. Depositions are sworn statements of witnesses taken before the hearing before a court reporter, without the judge being present. Interrogatories are written questions the other side must answer in writing under oath.
If you cannot find out the information you need by talking to the other side, you may send written interrogatories to the other side. You must send them only to the lawyer for the other side if a lawyer is representing them in the case. If they fail to answer within 20 days, you may file a motion with the judge requiring the other side to answer the questions or you may request a deposition of a witness to find out the information. If you want to take the deposition of a witness you will be responsible for any witness fees, court reporter fees, and other expenses of the deposition. All discovery must be finished at least 20 days before the hearing date.
Upon request from the insurance company or employer, you must complete and return any requests for release of medical, financial or other information as required by law. Unless a judge orders, you may, but are not required to, answer any written questions from the insurance company or employer. If a judge orders you to answer written questions or submit to a deposition, you must do so. Failure to do so after an order from a judge may result in the cancellation of the hearing or even dismissal of the claim. Be sure to read the documents you receive to verify the time that you have to respond to any discovery requests.
How do I get a witness to come to the hearing? A witness can come voluntarily to the hearing; however, a subpoena protects your right to have that person testify if their testimony is relevant to your case. Contact OAC well before the hearing to get a subpoena to require the witness to appear. You must arrange to pay required fees, including mileage to the hearing, and have someone else serve the subpoena at least 48 hours before the hearing, not counting weekends and holidays. If you subpoena doctors or other experts, you may have to pay for their time to testify at the hearing, as well as their time to travel to the hearing.
If I file a motion, when will it be granted? If the motion is labeled as "Stipulated" or "Unopposed", you can expect to receive an order granting or denying the motion within one week. If the motion is not stipulated, you can expect to receive an order granting or denying the motion within one week after the response is filed. A party has ten calendar days from the date of the motion to file a response, including by mail. OAC usually calendars the motions for about 14 days to allow the ten days for the response by mail. If no response is filed, you can expect to receive an order granting or denying the motion within one week after the response is due. You will likely receive the order sooner if you put your fax number on the motion and proposed order.
May I just talk privately to the judge about my case? No. The judge is not permitted to talk to one party unless the other party also has a chance to participate in the discussion. If you need to make a request of the judge, you should file a motion and provide a copy of any of your filings to the attorney for the other party.
What is a CIS? A Case Information Sheet is filed either jointly or separately by each party between 5 and 20 days before the date of the hearing. The CIS states whether the parties have tried to resolve the dispute, the status of discovery, the stipulations to be offered, the issues remaining for hearing, the names of the lay and expert witnesses, whether each witness will testify in person or by phone, whether the witness will travel more than 100 miles for the hearing, and the area of expertise of any expert witness. If a party fails to file a CIS, the judge may vacate the hearing, continue the hearing, dismiss issues or defenses, or go ahead and proceed with the hearing.