MICHAEL SULLIVAN & ASSOCIATES BLOG

The procedural rules governing discovery in workers' compensation cases serve critical purposes in ensuring fair and efficient adjudication. In particular, Labor Code 5502(d)(3) establishes that discovery closes on the date of the mandatory settlement conference (MSC), with strict limitations on the admission of evidence not disclosed in pretrial conference statements. Those rules are fundamental to the workers' compensation system's goal of expeditious resolution while maintaining due process protections.

On May 16, 2025, the 3rd District Court of Appeal in DPR Construction v. WCAB (McClanahan) (2025) 111 Cal. App. 5th 1136 issued a decision clarifying the discovery rules and addressing the standards for credibility findings under LC 5313. The decision was certified for publication June 11, 2025, ensuring its precedential value across California's workers' compensation system.

California Code of Regulations 31.3 establishes the rules for scheduling appointments with a qualified medical evaluator (QME) selected from a panel. CCR 31.3(e) establishes when a QME must be available for an appointment and states, "If a party with the legal right to schedule an appointment with a QME is unable to obtain an appointment with a selected QME within ninety (90) days of the date of the appointment request, that party may waive the right to a replacement in order to accept an appointment no more than one-hundred-twenty (120) days after the date of the party's initial request for an appointment." CCR 31.3(e) also allows either party to report the QME's unavailability and requires a replacement panel to issue "when the selected QME is unable to schedule the evaluation within one-hundred-twenty (120) days of the date of that party's initial request for an appointment" unless the parties waive the time limit for scheduling an initial or subsequent evaluation. CCR 31.3(f) applies the provisions in CCR 31.3(e) to both comprehensive medical-legal evaluation by a QME and follow-up comprehensive medical-legal evaluations by a QME.

Labor Code § 4062.2 establishes the procedure for selecting a qualified medical evaluator (QME) when an employee is represented by an attorney. Pursuant to LC 4062.2(c), each party has 10 days from assignment to strike a doctor from a panel, a period extended by the mailbox rule. (Messele v. Pitco Foods, Inc. (2011) 76 CCC 956 (appeals board en banc).) It adds that if a party fails to timely exercise a strike, "[T]he other party may select any physician who remains on the panel to serve as the medical evaluator."

When an employee is injured during the course of employment due to the negligence of a third party, the worker may file a workers' compensation claim against the employer and a civil claim for damages against the responsible third party. An employee is entitled to workers' compensation benefits regardless of whether he or she or the employer was negligent in causing the injury. In the civil courts, however, comparative negligence applies, "the fundamental purpose of which shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties." (Li v. Yellow Cab Co. of California (1975) 13 Cal. 3d 804, 829.)

Video evidence is admissible in workers' compensation proceedings. Generally, it's obtained by a defendant after an applicant reports an injury and the defendant questions the applicant's credibility. This type of evidence can be called surveillance evidence or sub rosa evidence, and the parties often dispute when it must be produced.

The issue was addressed long ago in Downing v. City of Hayward (1988) 16 CWCR 76 (panel decision). In that case, the applicant's attorney objected to allowing his client's deposition because the defendant had failed to disclose whether or not it possessed surveillance films of him, and if it did, because it had failed to provide them to the attorney. Downing held that a defendant not only is not obligated to show any surveillance films prior to an applicant's deposition, but that it's also not obligated to disclose whether or not such films in fact exist. The WCAB explained:

Pursuant to Labor Code § 5500.5(a), liability for a cumulative trauma (CT) injury is limited to the employer(s) that employed the worker during the one-year period immediately preceding the date of injury (LC 5412, or the last date of injurious exposure, whichever occurs first. That means multiple employers or insurers can be liable for a CT injury.

For cases in which multiple defendants have liability for a CT claim, LC 5500.5(c) allows the applicant to elect against any one or more of them. If the applicant makes an election against a defendant, he or she is required only to prove the claim against the named defendant. Liability for the nonelected defendant isn't determined until supplemental proceedings are instituted. Only the elected defendant has complete discovery rights, and the rights of nonelected defendants are deferred to contribution proceedings.

As stated in Labor Code § 4610(a), utilization review is the process a defendant uses to "prospectively, retrospectively, or concurrently review and approve, modify, or deny, based in whole or in part on medical necessity to cure and relieve, treatment recommendations by physicians, ..." (emphasis added). UR is the process to determine only whether a request for treatment is medically necessary. It does not determine other issues.

LC 4610(l) states, "Utilization review of a treatment recommendation shall not be required while the employer is disputing liability for injury or treatment of the condition for which treatment is recommended pursuant to Section 4062." Accordingly, California Code of Regulations 9792.9.1(b) states that UR "may be deferred if the claims administrator disputes liability for either the occupational injury for which the treatment is recommended or the recommended treatment itself on grounds other than medical necessity." So a defendant is not required to submit a treatment recommendation to utilization review when a claim is denied or when it is disputing liability for reasons other than the reasonableness of the proposed care.

It has long been recognized that an applicant's ability to participate in vocational retraining is a significant factor in assessing the worker's permanent disability. (LeBoeuf v. WCAB (1983) 48 CCC 587, 597.) In 2004, the Legislature enacted Senate Bill (SB) 899, and among the provisions was a requirement that permanent disability give consideration to an applicant's "diminished future earnings capacity," rather than the "ability to compete in the open labor market" (Labor Code § 4660(a).) The Labor Code was amended to require permanent disability to incorporate the "impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition)" (LC 4660(b)). Prior to SB 899, permanent disability generally was rated based on work restrictions reported by doctors, but now, it is generally rated using impairments assigned by doctors under the AMA guides.