Discovery and the Unrepresented Injured Worker

Saturday, January 3, 2004 | 0

One of the more confusing topics in advanced claims management is discovery, and in particular discovery rights when an injured worker is not represented by an attorney. This topic was recently addressed in the workcompcentral.com Professional Forums, Legal section. We have edited the exchange for clarity and readability.

Can a deposition be taken of an unrepresented injured worker?

Answer #1.

If there is an application filed, then there is no problem with deposing an unrepresented applicant. They are a party to the proceedings and may be compelled to testify under oath at a deposition.

If there is no application filed it is more complicated. The WCAB held in the Yee-Sanchez case that without an application the ability to take a deposition does not exist as there must be a legal proceeding to conduct a deposition.

The board intimated that an unrepresented applicant could still be required to allow a statement to be taken as part of the investigation of a claim. In our office we no longer notice the deposition of injured workers where there is no application pending but instead provide a "Notice of Taking Statement". In conducting such an interview we still have a court reporter to record the information but the applicant is not put under oath and the statement does not have to be signed by the applicant. It is still potentially admissible before the WCAB if the injured worker testifies inconsistently at a later date since the statement is then considered a "prior inconsistent statement"

I believe that an applicant is required to participate in such proceedings and that failure to do so may be used as a basis to deny injury or potentially terminate benefits (although I am very careful to not be capricious about this) since ADR 10108(e) provides some basis for not providing benefits where the injured employee unreasonably refuses to cooperate with the defendant's investigation. Such failure to cooperate may also be a defense to the potential attorney's fee issue if you are compelled to file an application to complete discovery (this interpretation is suggested also in the Yee-Sanchezsignificant panel decision).

If you want to take the deposition of an unrepresented applicant you will have to file an application which carries the additional expense of requiring payment of attorney fees for the applicant if they become represented.

Answer #2.

It is my understanding that you can take the deposition of a pro per claimant; however, beware of abuse of discovery sanctions which may be applicable should you seek a order compelling the applicant to attend. As you may or may not know, for post 1/1/94 injuries, the WCAB has no jurisdiction unless and until an Application is filed. For window period cases (1990 (?) to 12/31/93), the completion of a claim form granted jurisdiction to the WCAB. So, to make my long-winded story short, you can seek the deposition of an in pro per applicant by scheduling his deposition, but without filing an Application, you have no remedy if he does not show.

Answer #3.

You may take a deposition if an application has been filed.

If no application has been filed, I would notice an "examination under oath" pursuant to Rule 10108 which requires defense investigation.

If the injured worker fails to appear, you should be ready to file an application and a motion to compel attendance.

Answer #4.

We all have guidance now on the issue of deposing an in pro per applicant in pre and post window injury situations, where there is no Application on file. As pointed out in the first Answer, the Board decision in the consolidated cases Yee- Sanchez; Piatt (4/29/03) 68 CCC 637, makes it clear that absent an Application, there is no ability to depose anyone, and exactly what may be done in terms of investigation/discovery is spelled out. In Piatt, the Board upheld sanctions against the defendant for taking depositions without an Application being on file. Sadly, the Legislature has yet to correct the loophole in the law (Sect. 4064) that penalizes the defendant (by imposing liability on it for applicant's attorney fees) for filing an Application when the purpose of such is merely to have discovery powers.

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The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.