Burk: A Guide to Interrogatories and Their Importance in the Workers' Compensation Practice
Wednesday, August 31, 2022 | 0
Under NJAC 12:235-3.8, interrogatories are allowed in the following types of cases without motion (meaning, neither party is required to file a motion for leave to serve interrogatories with the court): dependency cases (see NJAC 12:235-3.8(a)), re-opener cases (see NJAC 12:235-3.8(d)), and occupational exposure cases (see NJAC 12:235-3.8(f).
For sample occupational interrogatories, click here.
Pursuant to NJAC 12:235-3.8(g), interrogatories may be allowed in other cases, upon motion, for good cause shown. Examples of where a motion for interrogatories may be filed are COVID-19 cases, medical provider cases or certain types of denied cases where further information is being sought by the respondent due to a disputed issue in the claim.
Situations in which respondents may consider filing a motion for special interrogatories are cases where there is a specific issue or dispute requiring further clarification and investigation. Special Interrogatories may be used to obtain critical information of a discovery or factual nature that either party needs to prove its case.
While interrogatories are allowed only without a motion in dependency, re-opener and occupational exposure cases, respondents can also file motion for leave for special interrogatories in other cases, and special interrogatories are underutilized in New Jersey workers’ compensation.
For a client and practitioner, one never wants to start trial without pinning down key facts that could make or break one’s case. Trial by surprise remains a risky endeavor. Practitioners should consider filing motions for leave to serve special interrogatories in those cases where there is a factual dispute or issue worth investigating.
While most cases in New Jersey workers’ compensation involve traumatic accidents where interrogatories are not allowed without motion (and granting of the motion), consider a situation where the authorized treating physician notes that the injured worker had a skiing accident three years ago in Vermont. In this instance, respondent should consider filing a motion for special interrogatories seeking further and specific information from the injured worker about the prior out-of-state accident, including names and addresses of all treating physicians, the nature of the injury, etc.
Respondent may wish to investigate petitioner’s subsequent/additional employment, and in that instance, a set of interrogatories could be served seeking information regarding a claimant’s second job, including job duties, earnings and employment information.
Another example of where special interrogatories would be useful is a situation where there is a dispute over ownership and control of an area. In this instance, interrogatories could be served seeking to obtain deeds and/or tax records and other documents to demonstrate ownership and control, or lack of ownership or control.
In those cases with disputed coverage or policy issues, interrogatories could be served seeking policy documents, cancellation notices and other documents regarding proper cancellation of coverage.
The ultimate goal with filing a motion for leave to serve special interrogatories is to obtain a court order granting the motion, and more importantly, having the order provide that the requested answers to interrogatories be provided within a certain time frame, such as 30, 45 or 60 days. Then, if the answers are not provided within that designated time frame, respondent can file an appropriate motion. Parties and practitioners on both sides should be aware of how important interrogatories can be to centralize the issues.
Turning to those situations where answers to interrogatories are allowed without motion, we first look at inquiries posed in dependency cases. These inquiries ask the alleged dependent to supply proof of dependency to the decedent, including the manner of relationship between the alleged dependent and decedent, as well as evidence that the decedent’s death was work-related.
These interrogatories also inquire as to the nature of any financial dependency the alleged dependent had with the decedent prior to the decedent’s passing. Dependency claim petitions and filing requirements are subject to NJSA 34:15-51, which requires that a dependency claim petition must be filed within two years of the decedent’s death.
In re-opener cases, inquiries are posed to petitioner regarding any treatment since the entry of the prior award, including details regarding physicians and the nature of any treatment since the entry of the prior award. Petitioners are asked to identify any subsequent employment held since the entry of the prior award, including job duties at any new /subsequent positions. An inquiry is made regarding any new relevant accidents/injuries or claims and any new awards or settlements.
Essentially, these interrogatories are seeking information regarding any new injuries, incidents or treatment since the entry of the prior award. It is worth noting that any re-opener application must be filed within two years of the last date of payment made to petitioner, pursuant to NJSA 34:15-27. If the re-opener application is filed more than two years after the last date of payment or treatment date, respondent should seek a dismissal of the matter, pursuant to Section 27.
In occupational exposure cases, a standard set of respondent occupational interrogatories can be found on the Department of Labor’s website, as noted above. In my opinion, the most important inquiry is number 10: “Set forth the date and circumstances under which the petitioner became aware that the claimed injuries resulted from his employment.”
Under NJSA 34:15-34, a petitioner in an occupational disease claim must file the petition within two years after the date on which the petitioner first knew the nature of the disability and its relation to the employment. For example, if petitioner files an occupational claim petition on Jan. 1, 2022, and his response to inquiry number 10 states that he became aware of his claimed injuries and their alleged relationship to employment at any time prior to Jan. 1, 2020, respondent should utilize petitioner’s answers to seek a dismissal of the claim, pursuant to NJSA 34:15-34.
Often, the answer to inquiry 10 is something along the lines of, “I became aware of my issues and their relationship to work upon consultation with my attorney,” but if a specific date is noted, respondent should compare the date listed in inquiry 10 to the date of the filing of the claim petition.
With the increase of COVID-19 cases, I have seen interrogatories being posed both on petitioners and respondents. Often, the interrogatories served by petitioner ask respondent to identify whether petitioner was an essential worker. There is very little guidance on who is an essential employee, so this is actually a complex legal question, as proximity to the public is not defined in the law.
Practitioners should not limit interrogatories to cases where interrogatories are allowed without motion and should consider filing motions for leave for special interrogatories in cases where further information is needed to flesh out disputed issues.
Maura Burk is an attorney with Capehart Scatchard, a defense law firm in New Jersey. This post appears with permission from the New Jersey Workers' Comp Blog.