California: A “New” Discovery Tool Available to the Defense Bar?

The California Constitution mandates that the workers’ compensation process, including those provisions applicable to discovery, shall be established so as to accomplish substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any character. Indeed, in Hardesty v. McCord & Holdren, Inc. and Industrial Indem. Co. (1976) 41 Cal. Comp. Cases 111 (Appeals Board panel opinion), a panel with the Workers’ Compensation Appeals Board (WCAB) indicated, “a set of rules relating to discovery which would permit a paper war of interrogatories and require frequent pre-trial appearances by counsel to argue discovery motions would be inconsistent with that constitutional mandate”.

In other panel decisions, based on these very same constitutional concerns, except in very rare cases, it has been found that written interrogatories are not enforceable in the workers’ compensation system (See, Lubin v. Berkley East Convalescent Hospital and Mission Insurance Company (1976) 41 Cal. Comp. Cases 283 (Appeals Board panel opinion)). The general thinking was that the Labor Code’s specific provisions and rules allowing depositions (Labor Code Section 5710), mandatory service of medical reports (Title 8, Cal. Code. of Regulations, section 10608), along with the ability to subpoena witnesses and documents (Labor Code Section 130), was adequate for purposes of discovery in a workers’ compensation case.

However, in 2004, when Senate Bill 899 was passed into law, the Labor Code was potentially changed from disallowing interrogatories to encouraging their use when conducting discovery in connection with apportionment under Labor Code Section 4663. Indeed, in 2004, section 4663(d) was added to state that upon request, an employee must disclose “all previous permanent disabilities or physical impairments”.

This was specifically the code section at issue in Nadey v. Pleasant Valley State Prison and State Comp. Ins. Fund, 2017 Cal. Wrk. Comp. P.D. LEXIS --. There, in direct conflict with the older cases cited above, the Workers’ Compensation Judge (WCALJ) was told by a panel of the WCAB that it was error to not compel applicant’s response to defendant’s written inquiry pursuant to section 4663(d). The WCALJ’s observation that there were other, less cumbersome, discovery methods available to defendant for obtaining the information did not persuade the panel of commissioners.

Not only does this section, and the panel’s willingness to compel applicant’s compliance with it, appear to violate the long running tradition of disallowing written interrogatories in the workers’ compensation process, but perhaps the more serious issue here is the overly broad language of the statute mandating the disclosure of “all previous permanent disabilities or physical impairments”. Indeed, the well-established law, starting with the California Supreme Court decision in Britt v. Superior Court (1978) 20 Cal.3d 844, 15 Cal. Rptr. 90 and the subsequent Court of Appeal decision in Allison v. Workers’ Comp. Appeals Bd. (1999) 72 Cal. App. 4th 654, 64 Cal. Comp. Cases 624 concluded that appropriate discovery was limited to the body parts placed at issue by the employee when filing the claim. Indeed, the extraordinarily broad language of this section could potentially mandate the disclosure of information well beyond the medical conditions placed at issue by the employee.

In conclusion, despite the fact that Labor Code section 4663(d) has been in existence for over 13 years, it has not thus far been aggressively used by the defense bar as a discovery tool. It continues to be unknown whether Nadey reflects a single case of creative lawyering or whether this is something that will be pursued with more frequency going forward. Should this section be invoked more often in the future, it could come into direct conflict with the WCAB’s long tradition of disallowing written interrogatories, but, more importantly, also the well-established law concerning an employee’s right to medical privacy.

Read the Nadey noteworthy panel decision.

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