The Discovery Channel . . . and a Merry Christmas to All!
I love Motion Day. I know y’all are tired of hearing me say “The best law comes out of those Motion Day decisions.” And I love it when esteemed practitioners share their outcomes with me for the betterment of the group. Today’s post is courtesy of Joe Andrews, a man whose face is synonymous with “Rule to Show Cause” and “Motion to Compel.” Let’s just say our friend Joe is no stranger to the IAB Legal Hearing.
One of these days, perhaps in my retirement (which is not coming any time soon), I am going to put together a book of IAB practice and procedure and it will be annotated with a veritable hit parade of Motion Day rulings. At least . . . that is my dream. And I am thinking my dear one, Chris Baum, might join me as co-author. You know Chris . . . the one whose decisions are mini-treatises and so precious that long ago, I nicknamed them the “Chris Baum Cherishables.” Yes, that one. The one person who might be worthy to undertake this case law adventure with me.
I digress (lost in the reverie of a case law undertaking with Chris Baum). So back to Joe Andrews. I was complaining about representing an employer and sending the DOL a blanket request for any and all IAB documents regarding any and all IAB proceedings, work injuries, etc. Darn if that DOL didn’t send me back a letter telling me I needed the claimant to sign a release. So Joe kindly sent me a copy of Thomas Speakman v. John E. Steele, Jr., IAB No. 1438211 (May 5, 2016) (ORDER) which stands for the proposition that
“[W]hen no petition is filed, only Board decisions and Board orders may be released as they are public documents; however once a petition is filed against an employer, then the employer becomes a defendant entitled to full discovery into prior accidents and as such, the defendant is entitled to reply upon the employee’s petition against it to access the rest of the IAB file materials.”
So bottom line — if no petition, all you get are IAB decisions and orders, and if a petition is pending, you can demand the entire file contents . I kind of love how there is a little admonishment in there by the IAB slapping the hands of the DOL as to the release of this information. In this age of the serial claimant, this kind of discovery is both urgent and relevant and in some extreme cases, quite necessary to prevent fraud (along with Facebook).
Okay, so this next decision is a keeper. If I ever write a second book, titled “The Best of Joe Andrews”, this one will definitely merit a prominent place in the discussion. Succinctly stated by Joe: “Employers can require claimants to complete Statements of Facts on Term Petitions or other Employer Petitions and the Board also adopts Superior Court Rule 33 to require Claimants to sign the Statement of Facts themselves instead of letting attorneys provide little to no information only to have the claimant at trial say he never saw that.”
I like this one . . . immensely. I have often been frustrated at the paucity of information and disclosure when dealing with any Petition other than an initial DCD. I am thinking that this ruling can also be used to compel a claimant to complete an updated Statement of Facts on a DACD as well as a Review Term. The case is K&S Iron Works v. Jorge Nevarez, IAB No. 1287991 (Sept. 1, 2016) (ORDER). There is so little pre-hearing discovery in workers comp . . . . we owe it to ourselves to preserve what few rights we have.
So as we head into the holiday weekend, let’s all reflect on the reason for the season . . . and let’s enter 2017 with renewed fervor to practice law with a spirit of candor, disclosure, and with all the civility that uniquely defines us as workers’ comp lawyers.
Merry Christmas! Happy Hanukkah! And God bless us, everyone!
Cassandra Roberts
