Biggest Discovery Case Of The Century Decided

It has been standard practice for workers’ compensation defense attorneys to ask general past medical history questions in depositions of the applicant. That practice of asking those types of questions in a deposition may now be a thing of the past.

The applicant in this case filed a claim for carpal tunnel injury. The carrier sent the applicant to a physician for an evaluation. The applicant told the doctor her condition was caused by her employment activities. The applicant claimed to do a prolonged amount of writing, more than 50% of her work day. The doctor indicated that her past medical history was unremarkable, although she did have a history of thyroid disease. The doctor indicated more tests were needed because if the test indicated any evidence of a peripheral neuropathy that would rule out industrial causation. If the testing shows carpal tunnel there would need to be additional thyroid testing to see if there was hypothyroidism. The record is not clear whether this testing was accomplished.

The defendant took the applicant’s deposition. The defendant asked a question related to the applicant’s past medical history. The applicant’s attorney objected on the basis the question invaded the applicant’s medical privacy and patient-physician privilege. The applicant’s attorney instructed the defense attorney to ask questions related to the current claim but that he would instruct the applicant not to answer past general questions.  The defense attorney ended the deposition and indicated the remainder of the deposition would be set before the workers’ compensation judge (WCJ).

The defense noticed the deposition before the WCJ. The WCJ issued an interim order and allowed the questions to be asked. Applicant’s attorney then filed a petition for removal. The WCJ filed a report and recommendation on petition for removal which the Workers’ Compensation Appeals Board adopted. The applicant then filed a petition for appellate review.

The appellate court reviewed Britt v.  Superior Court. Relying on Britt this court intimated that discovery procedures must be used that identify and remove irrelevant and immaterial issues. Questions must be tailored to avoid disclosure of protected records.  In this case the appellate court indicated the defense doctor narrowed the scope of the discovery to something far less broad than the defense attorney sought in the deposition.

This case has significant impact. An applicant’s attorney can stop general past medical questions even though this may go to the issue of apportionment. The key to the defense is to have the defense doctor indicate the need for all medical evidence that the applicant may have had a prior work preclusion which the doctor might be able to apportion to even if it is related to a different part of the body.

Case: Allison V. W.C.A.B.

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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