It is common practice in the initial letter to an employee (or their attorney) that has claimed an industrial injury to request or demand that they “disclose all previous permanent disabilities or physical impairments” per Labor Code Section 4663(d). This information is typically not provided unless the applicant is deposed and asked specifically about their medical history, as there is a long standing case history providing that written interrogatories are not allowed in workers’ compensation proceedings.

Case law represents that written interrogatories would contravene the California Constitution mandate that the workers’ compensation process accomplish substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any character, and are therefore not allowable (See, Hardesty v. McCord & Holdren, Inc. And Industrial Indem. Co. (1976) 41 Cal. Comp. Cases 111; Lubin v. Berkley East Convalescent Hospital and Mission Insurance Company (1976) 41 Cal Comp. Cases 283). The above case law essentially finds that extensive written discovery would create discovery disputes more frequently, which would possibly delay the administration of workers’ compensation benefits to injured workers.

However, the note worthy panel decision of Nadey v. Pleasant Valley State Prison and State Comp. Ins. Fund, (2017) found that a deposition should not be only avenue for disclosure of disabilities per Labor Code Section 4663(d). In the Nadey case the defense counsel requested that the Labor Code 4663(d) disclosure be made in writing, and it was ignored by applicant and later by applicant’s attorney as well. Upon a motion to compel said disclosures the WCJ found that the defendants had other means of discovery in which to acquire the requested information, and did not compel the applicant’s disclosure in writing. Upon appeal, the panel found that the WCJ was in error for not compelling applicant’s response to the defendant’s written demand pursuant to Labor Code Section 4663(d). While the panel did not specify a time frame in which the disclosure would be required, they did state that a deposition is not the only avenue to obtain the information, as a deposition is a costly and time consuming form of discovery for such a basic disclosure.

This discovery attempt at essentially a written interrogatory does seem to violate the case law indicating that written interrogatories are not allowed in the workers’ compensation process, however, the Nadey case seemed to allow it in this narrow circumstance. As such, this above defense attorney’s approach to obtaining Labor Code Section 4663(d) disclosures may be novel way of obtaining Labor Code Section 4663(d) disclosures. It could particularly be a helpful approach in situations where a deposition may not necessarily be desired, yet the disclosures per Labor Code Section 4463(d) are desired.