Kamin: What to Look for in Subpoenaed Records

Monday, December 18, 2023 | 0

A good batch of subpoenaed records is like a box of chocolates: You never know what you’re going to get.

John P. Kamin

Although Forrest Gump may not have been a workers’ compensation defense attorney, one can still take his insights to heart when practicing California workers’ compensation law.

Subpoenaed records are often one of the few objective sources of data that we defendants get. These records can disrupt the most common narrative we are told by biased physicians on post-termination claims, which is the narrative that the applicant "never felt any pain or injuries until after they lost their job.” Nothing disrupts that narrative better than 500 pages of medical reports showing that those injuries were nonindustrial in nature.

Of course, California work comp claims go far beyond orthopedic injuries, as applicants’ attorneys grasp for additional panels in fields like internal medicine. This can make those years of subpoenaed records even more interesting.

So with that in mind, what are some of the things I keep an eye out for in subpoenaed records? Here’s a list of things to keep in mind:

• EtOH. This is the medical abbreviation for alcohol abuse. It is often used in concert with drug abuse as well, even though the term EtOH technically refers to the presence of ethyl alcohol in an applicant. This could be relevant to everything from how injuries occurred to things like blood pressure and gastrointestinal upset.
• Troponin. Although I am not a doctor, I have had multiple neurologists confirm that troponin can be elevated when a person is using amphetamines. This helped prove that a stroke about three years after the alleged cumulative trauma claim was nonindustrial, as applicant had been taking diet pills she bought in Mexico. I don’t think she necessarily realized that they had illegal narcotics in them, but those diet pills she had taken for years were full of illegal substances. It’s also worth noting that troponin levels can be elevated for another reason: when a non-drug user is about to have a heart attack. Either way, it’s good to thing to keep an eye out for in blood panels and intake records from an emergency room.
• Auto accidents/MVAs/MVCs. The acronym may vary depending on which source you’ve subpoenaed, but auto accidents are relevant to orthopedic injuries, as well as psych. How is psych related to auto accidents? Well, ask anyone who was awake for a traumatic experience, such as rolling over on the 101 freeway. Post-traumatic stress disorder is often a component of nonindustrial auto accidents.
• Violence of any sort. Emergency room personnel and hospital records often have boxes to check for domestic violence, as health care workers don’t want to send patients home to violent households. This can be relevant to someone who is trying to pin his problems on the employer even though the source of the problems is coming from inside the home. To the other end of the extreme, a small percentage of applicants are the instigators of violent attacks, in which case you will want to check your local law enforcement and jail records to find out more about their past. This information may not always be relevant to all claims, but it can be relevant to a number of claims involving orthopedic or psych injuries. If there is any history of violence in a case, please show sympathy to the applicant if he is a victim. While employers should not be liable for nonindustrial violence, defense attorneys can pursue that argument without adding insult to injury.
• Police reports. Some subpoenaed records have police reports, especially the records that document traffic accidents. Regardless of the applicant’s role, the information that law enforcement puts in these reports can be of high value because many law enforcement officers have the sole incentive of “just the facts, please” when reporting on accidents. While some officers may have biases or agendas, most have zero incentive to put inaccurate details in standard reports. Barring extreme examples, it’s simply not worth it for most officers to intentionally get something wrong in an incident report.
• New diagnoses. Sometimes, applicants' attorneys will add an internal body part or diagnosis to a claim. Therefore, I try to keep an eye out for new internal diagnoses. This is not always relevant to every claim, but it could be. If it comes up, you’ll be happy you noted it.
• New medications. Often, the start of a new medication is a flag that denotes the start of a new diagnosis. If the doctor was unclear about the new diagnosis in that medical report from 2015 but started a new medication to treat that type of diagnosis, it is helpful in analyzing how that diagnosis started and how it has played out over time.
• Internal diagnostics. These are always worth a look, even if your claim doesn’t feature internal allegations. Why? Well, if your claim is starting as an orthopedic claim, it can be helpful to let the client know there are some "internal red flags" here. In those situations, it may be wiser to settle earlier than later.
• Height and weight. These can help put things in context and more accurately inform the narrative of what actually happened over time. Why? Obesity is linked to such a plethora of conditions, so it’s worth tracking that history and seeing if it applies to the defense of your claim.
• Diagnostic imaging. Diagnostic imaging such as MRIs, X-rays and CAT scans can be useful to show preexisting injuries or the lack thereof. For example, if a client suspects that applicant’s low back was injured at a prior job in 2017, I can help either confirm/deny that if I have a 2018 MRI for the lumbar spine.
• Medical work status reports/missed work. Time away due to injuries can be relevant in countless ways. One could use this to:
  • Identify a nonindustrial reason for the missed work.
  • Identify a preexisting injury.
  • If it’s an industrial reason for time off work, then a defendant could arguably use that to create a new date of injury based on the old formula of knowledge of disability = date of injury.
  • Remember, multiple injuries can reduce apportionment through the use of Benson apportionment or nonindustrial apportionment.

In conclusion, this is not meant to be an exhaustive list of everything relevant in subpoenaed records. It’s absolutely crucial to ignore and avoid spending time on irrelevant facts when that same time could be spent on relevant facts and issues impacting your claims.

That said, good subpoenaed records can make or break a case and should be treated with care. If you take these factors into account while reviewing your next batch of subpoenaed records, mark down the page number, date and notes. You’ll often be glad you did.

John P. Kamin is a workers’ compensation defense attorney and equity partner at Bradford & Barthel’s Woodland Hills location. He is WorkCompCentral's former legal editor. This entry from Bradford & Barthel's blog appears with permission.