The Role of Pre-Trial Discovery in Workers Compensation
You Can Use the Discovery Process to Gather Facts that Will Help You Win Your Workers Comp Claim and Negotiate a Fair Settlement.
I bet if you are reading this article then one of two things has happened:
1. Your employer’s workers compensation insurance carrier or third party claims administrator (TPA) has sent you written questions, requested that you turn over medical records or other documents, or asked you to give a deposition, and you want to know your rights.
Or
2. You realize that you need more evidence to get the workers compensation benefits you deserve, and you want to know how to get it. This is common when your employer, its insurance carrier, or other third-party witnesses are uncooperative.
The purpose of this article is to provide an overview of the workers comp discovery process.
After reading this article and those it links to you will know how to use the workers compensation discovery rules and tools to get the facts and documents you need to win your case. And how to use the discovery rules to avoid being taken advantage of by claims adjusters and insurance defense attorneys that use discovery to ask you to produce information or answer questions you don’t have to.
If you have questions about Virginia workers compensation after reading this article, call me for a free consultation: (804) 251-1620 or (757) 810-5614. Come see why my colleagues and past clients have voted me one of the best workers comp attorneys in the state. And what I can do for you.
What is Discovery?
Facts win cases at trial and help you negotiate a top-dollar workers compensation settlement. Slick legal arguments don’t.
Discovery refers to the process of gathering and exchanging information during litigation so that you learn the facts and get evidence needed to try the case.
There are two types of discovery:
1. Informal Discovery: This term refers to the informal fact investigation that should happen in every type of case. It involves gathering and organizing the documents and photographs you already have and interviewing witnesses.
2. Formal Discovery: This term refers to the different discovery tools available under the Rules of the Workers Compensation Commission.
You must use the workers compensation discovery process effectively to get the facts you need to present a simple and compelling story at your workers compensation hearing or to get a fair settlement after direct negotiation or settlement mediation with the insurance company. And to prevent the insurance company from learning harmful facts they are not entitled to know.
What are the Purposes of Discovery in Workers Compensation Cases?
Discovery serves several purposes in workers comp claims:
- To prepare the parties for trial.
- To help the parties better understand the other party’s evidence and positions.
- To encourage the parties to communicate and to resolve issues that are not disputed so that the trial focuses only on disputed points.
- To shorten the length of the trial. In Virginia the Workers Compensation Commission hopes to try most cases in thirty to sixty minutes. This is difficult to do, especially in claims involving catastrophic injuries or a willful misconduct defense. But the discovery process can get everyone closer to this goal.
- To prevent a “trial by ambush” by either party.
- To encourage the parties to settle the claim, either through a full and final settlement that includes a lump sum buyout for future medical treatment, or an indemnity only settlement that allows the injured employee to keep the award of lifetime medical benefits.
When is Discovery Available in Workers Comp Claims?
Discovery under the Rules of the Workers Compensation Commission is available in all workers comp claims in Virginia, regardless of whether the claim is based on an injury by accident, a compensable consequence injury, or an occupational disease.
You may use formal discovery at any point in the workers comp claims process:
- After filing an initial claim for benefits;
- After filing a change in condition application seeking additional benefits or a change in treating physician;
- After the employer has filed an application to suspend benefits; or,
- When you continue to receive temporary total disability, temporary partial disability, permanent partial disability, or lifetime medical benefits but are trying to gather evidence to see if you have a third party claim based on negligence and tort law. This is common when an injured employee is hurt in an auto accident while working or by a defective product on the job site.
What is the Scope of Workers Comp Discovery?
Rule 1.8 is the basic discovery rule that controls the scope of discovery in workers comp claims.
Part A of Rule 1.8 states that the scope of discovery extends only to matters that are relevant to issues pending before the Workers Compensation Commission and which are not privileged.
The term “relevant” includes not only information and documents that are admissible as evidence at trial, but also any information that appears reasonably calculated to lead to the discovery of admissible evidence.
What Information is Privileged From Discovery?
Rule 1.8 excludes privileged matter from being discovered by the other party.
Both you and the employer may claim privilege when responding to a discovery request. But any party claiming privilege must include a privilege log that describes the documents or items withheld from production and the specific type of privilege claimed. That is done so the party seeking the withheld information can determine if it really is privileged information, or if the other party is withholding it because it is damaging to their case.
Common privileges against discovery include:
- Attorney-Client Privilege: Your communications with your attorney, both oral and written, are privileged from discovery.
- Attorney Work Product: The other party may not discover or obtain any document made in preparation for litigation. Nor may it discovery an attorney’s opinions or strategies related to the claim.
- Husband-Wife Privilege: Any communication between you and your spouse is privileged unless you consent to disclosure. It may make sense to waive this privilege, however, if you will rely on your spouse to help you win your claim at hearing. I often have my client’s spouse testify to show the effects of the injury (before and after testimony), especially in claims involving head injuries and post-concussion syndrome.
- Mediation Privilege: Some of you will participate in a settlement mediation conference to try to resolve your claim, Any memorandum, documents, or statements used or made during mediation are confidential and cannot be used at trial if the claim does not settle, though the underlying facts may be discovered. This privilege against discovery exists to encourage cooperation during mediation.
- Privilege Against Self-Incrimination: No person, whether a witness or a party to a workers comp claim, can be compelled to give information or to produce documents that incriminates them in a separate criminal trial. This privilege rarely applies in workers comp claims, but you may need to assert it if your claim involves workplace violence and the employer alleges that you attacked someone else, or if your negligence caused a work-related motor vehicle accident and you face criminal charges.
You may notice that I did not include the physician-patient privilege. That is because HIPAA and doctor-patient confidentiality do not apply to workers compensation claims and the other party is entitled to information about your past, present, and expected future medical condition. Do not be surprised if the claims adjuster or defense attorney tries to speak with your doctor about your health and work status.
Develop a Discovery Plan and Strategy: What Facts and Documents Do I Need to Get to Win My Workers Comp Claim?
The facts and documents you should gather through workers comp discovery depends on the types of benefits you are claiming.
As a general rule you should get the following from the other party in your workers compensation case:
- Information about your employer’s insurance coverage to make sure that it is has workers comp insurance and that you do not need to seek benefits from the Uninsured Employers’ Fund.
- The name, address, telephone number, and email address of any person likely to have information about your claim.
- The name, address, telephone number, and email address of any person with information that can be used to impeach your credibility or to defeat your claim.
- A summary of what the people identified above may know about your claim or may know that can impeach your credibility.
- A list of the fact witnesses your employer or its insurer will call to testify at trial, and what they are expected to testify about.
- A list of the expert witnesses, including physicians, surgeons, therapist, counselors, chiropractors, accident reconstruction specialists, and vocational rehabilitation counselors, the employer and insurer may call to testify at hearing.
- A written report from each expert witness hired by the employer and insurer that states: (a) the witness’s opinions; (b) the basis and reasons for the witness’s opinions; (c) the facts and data used by the witness in reaching the opinion; (d) any exhibits that support the witness’s opinions; (e) the witness’s qualifications, including a list of all publications authored in the past 15 years; (f) a list of all other cases in which the witness testified at trial or deposition in the past 10 years; and, (g) how much the witness was paid.
- A copy of all documents, including emails, photographs, medical records, letters, and work accident/injury reports, that your employer has related to your claim.
- A copy of your employment and personnel file, especially if the insurance company alleges that you should not get wage loss benefits because you were terminated for cause or lied on your employment application about pre-existing conditions and prior injuries. This should include both your pre- and post-injury wages with the employer.
- A copy of the insurance company’s claims file so that you can see all of the documents the insurer is using to make decisions in your case.
- A list of the workers compensation defenses your employer or its insurer may raise at trial.
- If the insurance carrier alleges that you violated a safety rule, all documents related to the safety rule, a list of all instances where other employees were hurt when allegedly violating the same safety rule, and any documentation showing that the employer disciplined employees that violated the safety rule.
You may need additional information to win your case, but these facts and documents are a good place to start.
What Discovery Methods Can I Use to Obtain Missing Facts and Documents in My Workers Comp Case?
There are several discovery tools you can use to build your workers comp case or to defeat an employer’s application to suspend benefits.
These discovery methods are listed below. I recommend using the methods in the order I list them.
Interrogatories
Your formal discovery plan should start with interrogatories.
An interrogatory is a written question served by one party on another party. The party receiving the interrogatory must answer under oath within 21 days of receipt of the interrogatory.
Use interrogatories to find out whose depositions you want to take, what defenses the employer may raise, when the employer received notice of your accident and injuries, and what pre-injury average weekly wage (AWW) the employer alleges.
Under the Workers Compensation Commission’s Rules each party may serve no more than 15 interrogatories on the other party. If you want to serve more you must ask the Commission for permission and explain why it is necessary.
You do not have to file answers to interrogatories with the Commission unless they are the subject of a motion to compel. In my experience most judges want to avoid discovery disputes and do not want to read discovery answers before trial.
For more information on the type of information you can get through these interrogatories, read my article providing Sample Interrogatories in Workers Compensation. You can also check out my article on Answering Interrogatories in Workers Compensation Claims for advice.
Request for Production of Documents
The second step in the workers comp discovery process is the request for documents.
In Virginia a party may discover documents and tangible things related to their claim. This means you can obtain documents, photographs, and any other recorded or copied item that the other party possess related to your employment, accident, medical treatment, and workers compensation claim.
Usually your attorney will send requests for production of documents and things to the defendants at the same time they send interrogatories. That is fine. Just make sure you get the documents you need before taking depositions.
You will want to obtain all medical records and reports, wage documents (pre- and post-injury), accident reports, and expert witness reports the employer possesses.
Here is an example of Claimant’s Request for Production of Documents and Things to Employer and Insurer for use in your workers comp claim..
Depositions
Va. Code Section 65.2-703(A) allows any party to a workers compensation case to take the depositions of witnesses residing within or without Virginia.
The Commission’s Rules provide more information, and state that after a claim for benefits or employer’s application for hearing has been filed, any party may depose any person, including a party. For example, you may even depose the insurance claims adjuster.
A deposition is simply the taking of out-of-court oral testimony of a witness. Depositions are often reduced to writing and are later used in court to impeach the witness’s credibility. Deposition by written questions is rare in Virginia workers compensation cases.
A party may compel a witness’s attendance at deposition through a subpoena. There is no need to obtain the Commission’s permission to depose a party or physician. If, however, a party wants to depose another person that is not a party to the case, it should seek the Commission’s permission.
Deposition transcripts must be filed with the Commission. Upon filing, the deposition will be made a part of the evidentiary record.
Read my article on workers compensation depositions to find out what to expect and how to prepare.
Requests for Admission
Though used rarely in workers comp claims, Requests for Admission are a powerful tool.
A Request for Admission is a suggested answer to an interrogatory that was not asked. You are asking the other party to confirm certain facts so that you can eliminate potential disputes at trial and any problems proving specific items.
A party may serve upon any other party a written request for the admission of the truth of any material issue.
The Commission does not limit the number of requests for admission that may be served. Each request must be numbered and set forth separately.
Any admission under this rule may be used as evidence in the specific proceeding for which the request was made. An admission in one claim does not serve as an admission in another claim.
A party is required to respond to a request for admission within 30 days. If he or she doesn’t, then the Commission may find that the statement is deemed admitted. This can damage your case tremendously.
Subpoenas
I use subpoenas to get relevant information from non-parties and to make sure that witnesses show up at trial.
A subpoena is a writ issued by the Commission to compel testimony by a witness or the production of evidence. Failure to comply with a subpoena will lead to a penalty or sanctions.
A party requesting a subpoena for witness or subpoena duces tecum (production of information) must prepare the subpoena and submit it to the Commission. The Commission will certify the subpoena and insert a return date so long as a check or money order for the service fee, payable to the appropriate sheriff’s office, accompanies the request. The Commission will forward the subpoena and service fee to the designated sheriff’s office.
Depending on the wording of the subpoena, the requested documents will be sent to either the requesting party or to the Commission.
There are time limits for filing requests for subpoenas with the Commission. A request for subpoena for a witness must be filed at least 10 days prior to the scheduled hearing. A request for subpoena duces tecum must be filed at least 15 days prior to the hearing and should describe with particularity the documents requested.
Your attorney may use subpoenas to get information from your medical providers and previous employers.
You can also read my article, How Can I Request a Subpoena in My Workers Comp Case, for step by step guidance on the process
When Should I Begin the Discovery Process in My Workers Comp Case?
Informal discovery should start immediately, even before you file a workers compensation claim.
I recommend issuing a set of interrogatories and requests for production of documents to the employer and insurer after you file a workers comp claim.
Do not wait until the Commission schedules a hearing to send your initial discovery requests to the employer and insurer. You may receive information that requires follow up, such as additional depositions or another set of interrogatories. It is important that you have enough time to follow up between the time you receive responses to your initial discovery requests and the date of the hearing.
Depending on the insurer’s responses to discovery and what witnesses are necessary to present your case effectively, you may want to issue requests for admissions and subpoenas after receiving responses to your first set of interrogatories and requests for production of documents.
I recommend obtaining favorable medical reports every 6 weeks from the date of the accident through the date of hearing.
Do I Have to Answer Discovery Requests from the Employer or Its Insurance Carrier?
Yes.
The employer and its insurance carrier have the right to use the same discovery methods as you.
Failing to respond to discovery issued by the employer and insurer can be a costly mistake for two reasons.
First, the Commission may dismiss your claim if you fail to respond to discovery completely.
Second, the Commission may exclude important evidence at trial, which means you cannot use it to win your case. In Lanning v. Va. DOT, Record Nos. 1795-02-1, 1812-02-1 (Va. Ct. of App. Feb. 19, 2003), the Virginia Court of Appeals held that the Workers Compensation Commission can choose to exclude evidence when a party fails to disclose that evidence in its discovery responses. Depending on the importance of that evidence, you may cost yourself wage loss benefits, medical care, and a lump sum settlement by not answering discovery accurately and completely.
How Do I Limit Discovery in Workers Compensation?
As an attorney for injured employees whom are already going through so much physically, mentally, and financially, I try to limit the discovery of facts that weaken my clients’ claims or reduce our leverage in settlement negotiations.
Depending on the discovery method used by the employer and insurer, you may have the following options to limit discovery:
1. Ignore the Insurer’s Request: I recommend that you ignore the insurance company’s request to give a recorded statement after the work accident. You do not have to give one and the Commission cannot compel you to give one.
2. Refuse to Sign a Document that is Overly Broad: The insurer may ask you to sign a Medical Records Release Form after your work injury. Though the insurer is entitled to some of your records, it may ask for permission to get records it is not entitled to or to talk to your treating physician. Don’t sign the document unless its scope is narrowed.
3. File a Motion for Protective Order: If you believe the insurance company’s discovery requests are excessive, you may file a motion with the Commission asking that discovery be limited. The Commission has the authority to limit the frequency or extent of discovery if it is unreasonably cumulative, duplicative, or expense. In making a decision on whether to limit discovery, the Commission will consider the nature and importance of the contested issues, the parties’ resources, and whether there is a more convenient or economical way to obtain the requested information. If good cause is shown, the Commission will enter a protective order to limit discovery. A protective order is entered to protect a party, a witness, or some other person or entity from embarrassment, oppression, or undue burden or expense.
Similarly, you may file a motion for protective order if the insurer asks for confidential information that you are not permitted to disclose. For example, you may have settled a prior workers comp case that includes a confidentiality agreement. If so, file a motion to prevent the insurer from disclosing the information you produce.
Do I Have to Change My Answers to Discovery if Something Changes?
Yes.
You must update your discovery responses if there is a change in circumstances that materially affects your initial response or if you acquire additional documents or reports. For example, you may have to tell the insurance company if your treating physician releases you back to work.
If you fail to supplement discovery, the judge may exclude, or keep out, the new evidence at trial. This may hurt your claim if the evidence is supportive.
The judge may also draw negative inferences from your failure to supplement discovery, which also hurts your case.
A Top-Rated Attorney to Help You Use Workers Compensation Discovery Methods to Increase Your Claim’s Value
You must prepare your case to win at trial or to negotiate a fair settlement.
And the best way to prepare your case is by using the workers comp discovery methods available so that you get the information and evidence you need while limiting the unfavorable facts the insurance company discovers. You can also use the information you gather in your workers comp claim to qualify for Social Security Disability benefits if your injury keeps you out of work for more than one year.
To get help with this part of the claims process, call me for a free consultation: (804) 251-1620 or (757) 810-5614. I represent injured workers in Richmond, Chesterfield, Newport News, Hampton, Norfolk, Virginia Beach, Suffolk, Fredericksburg, Roanoke, Williamsburg, Harrisonburg, Charlottesville, Manassas, Bristol, Abingdon, Fairfax, and elsewhere across the state. Let’s get started on the road to recovery.
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