28 Feb 2025

California Workers’ Compensation Discovery: 10 Frequently Asked Questions

By Hon. Robert G. Rassp, Presiding Judge, Los Angeles WCAB

Disclaimer: The material and any opinions contained in this article are solely those of the authors and are not the opinions of the Department of Industrial Relations, Division of Workers’ Compensation, or the WCAB, or any other entity or individual. The materials are intended to be a reference tool only and are not meant to be relied upon as legal advice.

In the upcoming and updated 2025 Edition of California Workers’ Compensation Discovery, part of Rassp & Herlick, California Workers’ Compensation Law (LexisNexis), we have, among other new features, added a new section, “Frequently Asked Questions,” about discovery in workers’ compensation cases. We provide 27 questions and the answers that arise during the course of discovery in formal workers’ compensation litigation. Below you will find 10 of them as a sneak preview. If you don’t already subscribe to the Rassp & Herlick treatise or the Herlick Handbook, contact Robin.E.Kobayashi@lexisnexis.com to get on the list for early notification when the 2025 Edition of the discovery book is opened up for pre-sale.

1. When can parties begin the discovery process in a workers’ compensation case?

The filing of the Application for Adjudication of Claim initiates the discovery process. Once a Claim Form (DWC-1) has been sent to an employer, the employer level investigation should occur by the claims administrator with cooperation from the employer. California Code of Regulations, title 8, section 10109 mandates a duty to investigate a claim immediately upon receipt of a claim form or knowledge of a claim from any source either from the employee or their representative, regardless of whether the WCAB has jurisdiction over the claim. Formal discovery such as depositions cannot occur until the Application is filed with the WCAB [see Cal. Code Regs., tit. 8, § 10450(b)]. However, in unrepresented cases, the claims administrator may initiate the QME process on the unrepresented track pursuant to Labor Code section 4062.1 without first filing an Application for Adjudication of Claim at the WCAB.

2. What are the most common discovery tools used in California workers’ compensation cases?

Once an Application for Adjudication of Claim has been filed with the WCAB and an ADJ number assigned to the case, formal discovery can commence. The most common discovery includes initiation of the medical-legal process to determine compensability of a claim; or permanent disability and apportionment; or disputes over parts of body injured, temporary total disability benefits and disability status; pursuant to Labor Code Sections 4060, 4061, and 4062, respectively. Depositions of the injured worker, potential employer witnesses, and certainly of physicians commonly and regularly occur in workers’ compensation cases. In addition, subpoena duces tecum of employment (personnel and payroll records) and medical records are routine.

3. Who pays for discovery in California workers’ compensation cases?

The employer or its claims administrator pays for discovery based on Labor Code section 5811, which allows a “cost petition” or Petition for Costs that permit an injured worker’s attorney to have the cost of subpoenas reimbursed directly to the attorney or the agent hired by the attorney to obtain records via subpoena after written demands for specific records were not complied with by the employer or claims administrator within 30 days of the demand. Deposition costs of a physician or vocational expert that are advanced by the injured worker’s attorney are reimbursed via a Petition for Costs [see Lab. Code, § 5811].

4. Does an attorney get paid for their time spent preparing for and attending at the deposition of the injured worker?

The one thing about practicing workers’ compensation law compared to practicing personal injury law is that attorneys who represent injured workers before the WCAB get paid hourly for the preparation for and attendance at a deposition of the injured worker. This is one of the most unique aspects of practicing workers’ compensation law in California. Labor Code section 5710 specifically allows depositions of injured workers to be conducted in accordance with the procedures set forth in Code of Civil Procedure section 2025 et seq. as in civil actions. In addition, the injured worker’s attorney receives an hourly rate for the preparation for and attendance at the deposition. California Code of Regulations, title 8, section 10547 sets forth the requirements for the injured worker’s attorney to seek what are called “Labor Code section 5710 attorney’s fees” from the employer or claims administrator. The attorney’s fees that are awarded are discretionary by the judge who reviews a Petition for Labor Code Section 5710 Fees and do not come out of the injured worker’s share of a settlement or judicial decision on the case in chief. Hourly rates are not uniform throughout the State’s 23 WCAB District Offices and can vary from $250 an hour (for a hearing representative supervised by an attorney) to $650 an hour (for a certified specialist attorney) depending on the law firm, the experience of an attorney appearing at the deposition, the geographic location of the WCAB office, and the cost of doing business in a particular part of the State.

5. Are deposition transcripts admissible in a workers’ compensation case?

Generally speaking, yes. Counsel is reminded that the formal rules of evidence do not apply in workers’ compensation litigation [see Lab. Code, § 5708], and part of that philosophy indicates that deposition transcripts of physicians, vocational experts, and other experts are allowed in lieu of live testimony. Live testimony of experts are allowed only upon a showing of good cause. In 40 years of practicing workers’ compensation law, this author can think of only one time a workers’ compensation judge allowed a physician (an independent medical examiner) to testify live at a trial.

Excerpts of deposition testimony is allowed to be admitted into evidence for impeachment purposes of any witness who testifies at trial. Excerpts of deposition testimony that potentially may be used at the time of trial requires that the propounding party list the entire deposition transcript as an exhibit during the Mandatory Settlement Conference when the Pre-Trial Conference Statement and Exhibit list are prepared by the parties. Counsel should designate specific pages and lines within a deposition to be used for impeachment purposes.

6. What are the different methods to obtain records in connection with a workers’ compensation case?

First, by a signed Authorization for Release of Medical and Other Information that is obtained from the injured worker either through a claims administrator or provided by an injured worker’s attorney. Another common method to obtain records is by a subpoena duces tecum which is issued by the WCAB under the signature of each Presiding Judge at each district office. Counsel is reminded that records can be obtained (1) informally by a demand letter to opposing counsel, (2) by subpoena duces tecum (SDT), (3) by subpoena of records with personal appearance, or (4) by notice to appear and produce at a hearing. In order to have a valid subpoena, a written demand for records must be issued first, allowing the opposing party 30 days to produce records voluntarily if it is suspected that party already has the records.

For example, defense counsel may have the injured worker’s personnel file from the employer, and, upon demand from the injured worker’s attorney, defense counsel should send copies, otherwise a valid subpoena duces tecum could issue for the employer’s records at the employer or claims administrator’s expense. Similarly, if the injured worker’s attorney demands copies of notices sent by the claims administrator to the injured worker prior to the attorney being retained as the injured worker’s counsel, the claims administrator should serve those records without the need for a subpoena.

7. What types of documents are usually subpoenaed in a workers’ compensation case?

An injured worker’s attorney usually will subpoena payroll documents, personnel files, medical records, investigation reports (obtained by the employer and not by the defense attorney), and medical records. Sometimes Material Safety Data Sheets from an employer are obtained by an injured worker’s attorney if exposure to toxic materials on the job are alleged. In fact, in one case, this author ordered a hospital to produce all records of any patient who was treated at the hospital over a six-year period who tested positive for Hepatitis C infection (since the injured worker employed by the hospital was a phlebotomist who contracted Hepatitis C and claimed it was work-related). This author ordered the names of the patients to be redacted upon service of them on opposing counsel. It turned out there were 226 patients who tested positive during that period, and liability for the phlebotomist’s Hepatitis C infection was eventually accepted.

Defense counsel will obtain records of prior work-related and non-work-related injuries, medical reports, settlement documents, personnel records (past and present employers), and WCIRB records (which indicate insurance coverage for employers that do not have a certificate of permission to self-insure).

8. How do I object to a subpoena that I believe is subject to an objection, and what happens to it?

Code of Civil Procedure section 2020.410 indicates that if a party objects to a subpoena in the form of a Petition to Quash Subpoena, there is an automatic stay of enforcing the subpoena pending further action by a workers’ compensation judge. Many judges will issue an Order Quashing Subpoena and some judges will not because of the automatic stay of enforcing the subpoena due to the Petition to Quash. Once a Petition to Quash is filed and served, the requesting party has the burden of filing a Declaration of Readiness to Proceed for a hearing at the WCAB office having venue to have a judge determine whether disputed records are to be produced and under what circumstances or limitations.

Most objections to subpoenas include (1) there was no prior written demand for the records; (2) 30 days had not run from the time of a written demand for the records; (3) the records were already served by opposing counsel or their client; (4) the subpoena and request is overbroad, burdensome, or oppressive; (5) the records being subpoenaed will not lead to admissible evidence at trial.

In actuality, very little litigation over subpoenas occur in the day-to-day proceedings at the WCAB, since most parties and counsel know the scope of discovery allowed by the workers’ compensation judges when the scope of a subpoena is in issue.

9. What is the process to obtain one or more than one additional QME panels?

California Code of Regulations, title 8, section 37.1 provides that an additional QME panel can be obtained by agreement of the parties or upon a showing of good cause. The Appeals Board has indicated in noteworthy panel decisions that an existing QME can defer to other specialists if asked about the need for one or more additional QME panels that are outside the medical specialty of the original QME selected under Labor Code section 4062.2 [see Bautista v. Beauty Box, 2022 Cal. Wrk. Comp. P.D. LEXIS 268 (Appeals Board noteworthy panel decision)].

In Bautista, the Appeals Board panel stated:

Here, applicant seeks the issuance of additional panels in neurology and psychology to evaluate her claimed injury. Orthopedic QME Dr. Getelman has indicated that he would defer to specialists in these medical fields outside of his specialty.2 (Ex. Y, Deposition of Mark Getelman, M.D., dated January 27, 2022, at 16:13.)

…[T]he WCJ has broad discretion under the Labor Code and under our Rules relating to discovery, “to issue such interlocutory orders relating to discovery as he determines are necessary to insure the full and fair adjudication of the matter before him, to expedite litigation and to safeguard against unfair surprise.” (Hardesty v. McCord & Holdren (1976) 41 Cal. Comp. Cases 111 [1976 Cal. Wrk. Comp. LEXIS 2406].)

The Appeals Board panel went on to discuss that unnecessary requests for additional QME panels may be an abuse of discovery and subject to sanctions by a judge against a party who has no legitimate basis for requesting additional panels. The current Appeals Board is liberally construing the concept of “good cause” to amount simply to another physician, indicating that they are deferring the need for additional panels to the WCAB. Does this mean that counsel can just allege orthopedic, psyche, and internal medical conditions in a claim form and Application for Adjudication of Claim without any medical evidence of alleged medical conditions underlying the case? The Appeals Board is adopting liberal construction under Labor Code section 3202 by telling the legal community that a request for additional QME panels falls under a very broad definition of “good cause.”

See also Boyd v. Visser [2023 Cal. Wrk. Comp. P.D. LEXIS 117 (Appeals Board noteworthy panel decision)]. The similar issue arose in the Boyd case—what constitutes good cause for additional QME panels? The Appeals Board panel again, one year after Bautista was decided, stated:

Here, applicant seeks the issuance of additional panels in neurology, urology, internal medicine and psychiatry to evaluate her claimed injury. (Petition, at 4:12.) Orthopedic QME Dr. Aval has indicated that he would defer to specialists in these medical fields outside of his specialty. (Ex. A, report of Soheil Aval, M.D., dated August 12, 2021, at p. 10.)

Labor Code section 4062.2 governs the process to obtain a medical-legal evaluation from a panel QME in a represented case if the parties do not agree on an agreed medical evaluator (AME). (Lab. Code, § 4062.2.) Defendant has denied liability for applicant’s claimed injuries to the internal system, psyche, head, brain, and sexual dysfunction. (Minutes, at 2:3.) In the absence of additional panels in relevant specialties, applicant is effectively prevented from conducting the medical-legal discovery necessary to a determination the nature and extent of the admitted injury. We therefore agree with applicant that additional QME panels are appropriate. (See McClune v. Workers’ Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal. Comp. Cases 261]; Tyler v. Workers’ Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal. Comp. Cases 924]; Lab. Code, §§ 5701, 5906 [the Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues].) Following our review of the medical record, as well as applicant’s trial testimony, we are persuaded that QME evaluations in internal medicine and psychiatry are reasonable and necessary. The QMEs in those specialties may then address the need for additional panels in neurology, urology, or any other specialties that may be indicated. …

The Boyd case differs from the Bautista case because, here, the injured worker testified at trial about signs, symptoms, and complaints he had to parts of his body that did not involve just orthopedic related complaints. The Appeals Board had a clear record that justified the additional QME panels based on what the original QME said, as well as based on the injured worker’s trial testimony.

10. If an AME or QME becomes unavailable due to illness, death, retirement, or other legitimate reason, are their reports and/or deposition testimony sent to the new QME or AME who replaces them?

The answer is “yes,” assuming the reports and deposition transcript of the now unavailable medical-legal physician were previously admitted into evidence. In Montes v. Westside Children’s Center [(2024) 89 Cal. Comp. Cases 1092, 2024 Cal. Wrk. Comp. P.D. LEXIS 121 (Appeals Board noteworthy panel decision)], an Appeals Board panel was faced with the issue of whether the reports of AME Alan Sanders can or cannot be sent to a QME or AME in orthopedic surgery in light of his retirement and unavailability for further reporting or deposition.

In the Montes case, Dr. Sanders’ reports had previously been admitted into evidence at a prior trial proceeding. His unavailability occurred after the trial had begun, and further development of the record with his services became impossible. A party wanted to cross-examine Dr. Sanders via deposition but, as of May 2023, he was unavailable.

The Appeals Board panel expressed their opinion that the reports of a prior AME, who is now unavailable, may contain information that is helpful to a new QME or AME in orthopedic surgery in assessing the injured worker’s condition and that is relevant to the determination of medical issues necessary for the adjudication of the claim, including the record of the injured worker’s symptoms, medical history, clinical observations, and diagnostic testing that may be lost over time. The Appeals Board also indicated that even allowing procedurally or substantively deficient medical-legal reporting to remain in evidence and reviewed by new medical-legal evaluators, can be assigned appropriate evidentiary weight since workers’ compensation law allows a broad admissibility of evidence to ensure substantial justice. The Appeals Board panel further strongly suggested that if the parties cannot agree to a new AME, the trial judge should consider appointing a regular physician under Labor Code section 5701. Query: would Dr. Sanders’ reports be ordered sent to a new QME or AME if there was no prior trial where his reports were admitted into evidence? It appears the current Appeals Board would have ordered Dr. Sanders’ reports to be sent to a new medical-legal evaluator regardless of whether a trial had begun with his reports admitted into evidence.

© Copyright 2025 LexisNexis. All rights reserved. This article is excepted from the upcoming 2025 Edition of California Workers’ Compensation Discovery, part of Rassp & Herlick, California Workers’ Compensation Law (LexisNexis).