This article will discuss Depositions and how they are used in California Workers’ Compensation cases. This article includes discussion of the nature of depositions, why depositions are taken, how they are used to assist in the resolution of workers’ compensation cases, and how they are used at workers’ compensation trials. This article will also discuss some important caselaw which relates to what and what cannot be asked in depositions.
What Is Discovery?
“Discovery” is a legal “term of art” which relates to how parties to a legal action seek information from the opposing party and other parties relating to the lawsuit. This information can include facts or opinions which are either important or relevant to the legal action.
In California, Workers’ Compensation cases are legal actions for which discovery is conducted. They, however, are not considered as Civil Lawsuits. Workers’ Compensation cases have different procedure than Civil Lawsuits which employ the Code of Civil Procedure. In California Workers’ Compensation Cases, the Labor Code dictates the means upon which discovery is conducted.
Why Is Discovery Important In Worker’ Compensation Claims?
Discovery is important in California Workers’ Compensation Law. Insurance Companies have an obligation to investigate claims with the first 90 days of their knowledge of a claim to determine whether the claim is either accepted or denied. This mandate is provided for within Labor Code Section 5402. Depositions are one of the common discovery tools in used in workers’ compensation cases.
What is Discovery like in Workers’ Compensation Claims?
Discovery, in workers’ compensation cases, mainly focuses on the Injured Worker’s claim of injury.
There are many questions that Insurance Companies have concerning an Injured Worker’s claim. The following is an example of the types of questions that would be asked of an Injured Worker who is claiming back injury: “How were Injured?”; “What Are Your Back Complaints?”; “Where Does It Hurt?”; “Who Have You Treated With?”; ”Have You Ever Hurt Your Back Before?”; “Since Your Injury, Have You Hurt Your Back?” “Have You Had Any Other Work Injuries?” and “Have You Been in Any Car Accidents?
Discovery of an Injured Worker’s claim will include additional methodology. These other discovery methods will include medical examinations, employer level investigations, and the use of a private investigator to investigate the Injured Worker’s background. This investigation could also include the video surveillance of the individual as well as searching out the worker’s social media. Also, insurance companies can subpoena an Injured Worker’s employment, treatment and claims records.
What Are Depositions?
Depositions are a tool discovery. A deposition is essentially the questioning and answering of questions under oath and under penalty of perjury. In Workers’ Compensation, Depositions can be taken of the Injured Worker, Percipient Witnesses, and Expert Witnesses.
California Workers’ Compensation Law, pursuant to Labor Code Section 5710, provides for depositions. The Labor Code employs the California Code of Civil Procedure to provide for some of the provisions for how depositions are to be conducted.
Depositions, in workers’ compensation law, are unique. Depositions of various parties is encouraged in lieu of Trial Testimony. Expert Witness testimony in workers’ compensation trials is generally received in the form of a deposition taken by the parties. These expert witnesses are medical professionals and vocational rehabilitation counselors.
Who are the People that are Usually Deposed in Workers’ Compensation Cases?
There are many people who can be deposed in a workers’ compensation case. People who are likely to be deposed can include the Injured Worker, Adjusters, Percipient Witnesses, Medical Providers, and Vocational Experts. Doctors who are deposed are usually treating doctors, Qualified Medical Evaluators and Agreed Medical Examiners.
Why Are Depositions Taken?
Depositions are taken for many reasons. Some depositions are taken to discover information about the Injured Worker. The questions can be about the Injured Worker’s prior injuries or accidents, their prior medical treatment or hospitalization, and their physical abilities before and after the industrial injury. Also, questions can be asked of the Injured Worker as to how the injury occurred.
Who Are the Individuals Who Take The Injured Worker’s Deposition?
Generally, Insurance Companies or Carriers employ Attorneys or Hearing Representatives to take the deposition.
Prior to the deposition, they have prepared to take the deposition. In doing so, they have reviewed the Injured Worker’s claims file, medical reports and medical records. Also, they may have received information from the Employer. This may be in the form of a private investigator report or an employer level investigation. These investigations can include interviews with the injured Worker’s manager and/or co-workers. Prior to the deposition, the Insurance Company may have even conducted subrosa observation of the Injured Worker. This subrosa observation can include videotaping of the individual. Also, they may go on the Injured Worker’s Social Media sites to obtain information which can include videos and photos.
In an Injured Worker’s Deposition, Who May be Present?
In an Injured Worker’s Deposition, there are a number of individuals who can be present.
For the Employer, there will be the Individual’s deposing representative. This can be either an Attorney or Hearing Representative. Second, sometimes, there will be an Employer’s Representative will be present. Employer Representatives can be anyone from someone in the Human Resources Department, the Business Owner or the Employee’s Direct Supervisor.
For the Employee, the Injured Worker will be present. If they are represented by a law firm, there will be a law firm representative present. Law firms can send either an attorney or hearing representative. If the Injured Worker is not represented, then they will have no one else present on their behalf.
If the Employee is not proficient in English, an interpreter may be present. They will be available for the Injured Worker and Their Representative to interact as well as interpret during the deposition.
Finally, and most importantly, there is the Court Reporter that will be present at a deposition. They are considered to be respected members of the Court. Besides generating the transcript, they have the role as guardian of the transcript and have the custodial responsibility of maintaining the transcript.
Their task is to administer the oath on the witness and produce an accurate and timely judicial record. They will transcribe the testimony using a stenographic machine. As a result, a transcript will be generated. This is in a booklet form. The Court Reporter, who are respected members of the Court, have the role as guardian of the record and may maintain possession of the original transcript.
How Are Depositions Used at Trial? Are There Any Other Uses?
Depositions are used at trial for essentially two purposes. They are evidence for evidence or for impeachment. As evidence, they can be used to present facts or present expert witness opinion. With respect to the depositions, they will be treated on the same level and given the same weight as if the individual presented live testimony at trial.
As fact or opinion testimony, again, they are to be given the same weight as live testimony. Further, the expert opinion testimony will be treated the same as any medical report or vocational rehabilitation report.
As impeachment, depositions can be used to question the credibility of the person testifying at trial. This is generally done by after the witness has testified concerning a fact. The pertinent section of the deposition transcript will then be introduced at trial to show that conflicting statements had been made by the witness in the past.
Beyond Trial, Deposition transcripts are frequently transmitted to Expert Witnesses such as Medical Evaluators to use them in their assessment of the Injured Worker’s claim.
Are There Any Important Caselaw Decisions With Respect To Depositions?
Yes. Although an Injured Worker waives doctor-patient privilege because they have placed their medical conditions at issue, the Court has placed some limitations with respect to the nature and extent of that waiver.
In one of the most famous workers’ compensation case on depositions, the Court of Appeal in Allison found applicant did not waive entire doctor/patient privilege by filing workers’ compensation claim for cumulative wrist injury through 6/97 (carpal tunnel syndrome) and WCJ’s discovery order allowing questioning about applicant’s hospitalization history before 1965 was overbroad. The court noted that “[t]he Supreme Court ruled that although the plaintiffs waived their physician-patient confidential communication privilege (Evid. Code, § 990[Deering’s] et seq.) and their psychotherapist-patient confidential communication privilege (Evid. Code, § 1010[Deering’s] et seq.) as to the medical, emotional, and mental conditions placed by them in issue in the case, and information regarding such conditions was therefore discoverable, all medical privacy was not waived. 6 Allison v. Workers Compensation Appeals Bd., 1999 Cal. Wrk. Comp. LEXIS 5393, 64 Cal. Comp. Cases 624, 72 Cal. App. 4th 654, 84 Cal. Rptr. 2d 915
What if I Need Advice?
If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 27 years. Contact us today for more information.