En Banc WCAB Clarifies Defendants' Discovery Disclosure Obligations

Wednesday, October 15, 2025 | 0

The Workers’ Compensation Appeals Board on Monday issued an en banc decision, holding that a defendant must disclose any entities liable for payment, and any insurance policies that impact liability.

The decision from DiFusco v. Hands On Spa is binding precedent on all Workers' Compensation Appeals Board panels and all workers’ compensation administrative judges.

Jillian DiFusco worked for Hands On Spa as a massage therapist. She filed a workers’ compensation claim for various injuries she sustained in July 2008.

In December 2012, a workers’ compensation judge awarded DiFusco home health care services of four hours, twice per week. HOS was also ordered to employ a nurse case manager to administer home health care services.

In September 2018, DiFusco alleged that her home health care services had been discontinued, and she requested an expedited hearing.

At the hearing, the parties agreed to have DiFusco examined by Dr. Alexander Angerman to determine the appropriate level of home health care services required and to issue a medical report. HOS agreed that it would arrange for home health care services of at least eight hours per week while the assessment process was pending.

After Angerman issued a report recommending 10 hours of home care, seven days per week, DiFusco requested another expedited hearing.

At this hearing, the parties agreed to have additional medical records provided to Angerman and to have him sit for a deposition. HOS agreed to provide DiFusco with home health care services for four hours per day, seven days per week, until Angerman could be deposed.

In February 2020, the parties appeared for a continued mandatory settlement conference. They agreed for HOS to provide 50 hours per week of home health care services for three years, absent any change in circumstances.

In December 2020, DiFusco requested a hearing, alleging that her home health care provider had not been paid and was going to stop rendering service.

At a hearing in February 2021, the parties entered into an agreement that HOS would pay the outstanding invoices from the provider. The caption for the agreement stated that HOS was insured by Employers Compensation Insurance Co., and the claims administrator was Employers Insurance Group.

DiFusco’s attorney contacted the attorney for HOS, requesting information on the limits of the coverage provided by Employers Compensation Insurance Co.; any primary or secondary excess carriers on the claim, and the limits on their policies; and any other actual or potential payer.

The attorney for HOS declined to provide the information, and DiFusco requested another hearing.

The matter went to trial before Workers’ Compensation Judge James Finete.

Finete reasoned that WCAB Rule 10390, which took effect Jan. 1, 2020, superseded the now-repealed Rule 10550, which had codified the WCAB’s prior en banc decision in Coldiron v. Compuware Corp.

Rule 10390 states that the “proper identification of parties” is the identification of “the insurer and/or employer.”

Coldiron held that when an employer’s liability for workers’ compensation benefits is adjusted by a third-party administrator, the administrator must disclose the identity of its client, whether a self-insured employer or insurance carrier. If the client is an insurance carrier, Coldiron said, the administrator must disclose whether the policy includes a “high self-insured retention,” a large deductible or any other provision that affects the identity of the entity actually liable for the payment of compensation.

Finete posited that the purpose of Rule 10390 was “to simplify and clarify the obligations of defendant to identify the legally responsible entity,” not to “cause a conflict in the law” and not to “create this current litigation or obfuscate a party’s disclosure obligations.”

Thus, he concluded that the only disclosure that had to be made was the name of the Employers Compensation Insurance Co. as the carrier.

The en banc WCAB disagreed, emphasizing that all en banc decisions are binding on it and the WCJs.

The Coldiron case actually yielded two en banc WCAB decisions. In the first, the WCAB ruled that a third-party administrator had to disclose the identity of its client to the WCAB and the other parties in the proceeding. In the second, the WCAB declined to order sanctions but said its holding from the first en banc decision remained binding on third-party administrators or their counsel and/or representatives.

The WCAB said the collective decisions from Coldiron require disclosure of any entities liable for payment, and any insurance policies that impact liability. The WCAB said the Coldiron decisions have not been rescinded, overturned by a higher court or subsumed by a subsequent legislative enactment, nor have they been superseded by Rule 10390. They therefore continue to be binding precedent on panels and all WCJs.

Though the Coldiron case involved a third-party administrator, the WCAB said the holdings address the “disclosure of the entity responsible for payment in all cases and not just those with a third-party administrator,” so the Coldiron decisions “require disclosure of a high self-insured retention, a large deductible or any other provision that affects the identity of the entity actually liable for the payment of compensation by a third-party administrator.”

The WCAB explicitly stated that there is "no basis to limit the disclosure requirements to third-party administrators.”

The facts “provide a clear example of why the Coldiron disclosure requirements are essential to accomplish our constitutional mandate to achieve substantial justice in all cases,” the WCAB continued. “Although the reason for the payment problems is not altogether clear, there can be no doubt that applicant is entitled to the information about which entity or entities are liable for payment, as well as the liability details in the underlying insurance policy.”

The WCAB said the burden to ascertain the identity of the entity liable for payment cannot be placed on the injured worker, as the information "is more readily available to a defendant, and the disclosure responsibility must lie with defendant.”

The WCAB also said its rules “are not concerned with which entity could be liable for payment,” and Rule 10390, which “renumbered and simplified former WCAB Rule 10550,” simply serves “to ensure that all parties are accurately identified.”

Though Rule 10390’s requirements “may appear to be narrower than those established in the Coldiron decisions,” the WCAB said, “there is no conflict between the rule and the holdings of Coldiron I or II.”

The board said it intended that the rule and the Coldiron decisions be read together to “expand defendant’s obligation to properly identify third-party administrators, rather than to address the issue of disclosure of insurance carrier and policy information or to otherwise limit defendant’s responsibilities.”

The WCAB said HOS did not comply with the requirements of Coldiron, so it rescinded the judge's findings and directed HOS to disclose the information requested by DiFusco’s attorney “forthwith.” If HOS fails to do so, DiFusco can seek sanctions.

The board also suggested that she may wish to seek sanctions for HOS’ previous failure to disclose, as well.

To read the decision, click here.