Discovery on Behalf of Injured Workers in Iowa Work Accident Cases

Back on July 31, 2013 I wrote about the discovery requests that defendants ask injured workers in Iowa workers’ compensation cases. You can see that post here.

Today I am going to talk about the discovery that I conduct on behalf of my injured clients in Iowa work comp cases.

The two types of written discovery are Interrogatories and Requests for Production of Documents. In Interrogatories I get to ask the defendants specific questions that they have to answer. With my Requests for Production of Documents I get to require the defendants to give me copies of records and reports that are relevant to the case.

Over the years I have developed Interrogatory forms and Requests for Production of Document forms that I continually change and expand as the law changes, and new issues develop in Iowa workers’ compensation law. In conducting discovery on behalf of injured employees I have a couple goals. First, I am looking for information that will help prove the elements that my clients need in order to win the case and recover money. Second, I am making sure that I understand what the defense arguments are against my clients so I can be ready with the best possible counterarguments.

The Interrogatories and Requests for Production of Documents that I use are very extensive. They are designed to try to get all of the valuable information that the defendants possess. Not every one of my discovery requests actually applies in every case, but it is always better to ask too many questions, rather than not enough questions.

For the rest of this blog post I am going to talk about some of the areas where I conduct discovery, and examples of how the discovery fits into my work comp cases. This list is just to give you a flavor of how discovery works, and is not anywhere near a complete list of all of the issues that I conduct discovery on.

SURVEILLANCE. Back on July 17, 2013 I wrote a blog post about some changes in the surveillance rules that are favorable to an injured worker. You can see that entire blog post about surveillance here. The short version of the changes in the surveillance rules is that traditionally the defendants did not have to tell the injured worker about surveillance or reveal the surveillance tapes until after the defendants had had a chance to take a formal interview of the injured worker.

On October 23, 2012 the Iowa Workers’ Compensation Commissioner issued a Declaratory Order that required Defendants to reveal the surveillance if the lawyers for the injured worker made the proper discovery request. Additionally, the Declaratory Order from the Iowa Workers’ Compensation Commissioner required the defendants to disclose and produce surveillance that was favorable to the injured workers, such as video showing them having physical problems walking, or taking out their garbage, or trying to cut their grass.

The defendants have appealed the Commissioner’s Declaratory Order on surveillance, and the appeal process could take a few years. However, a new positive development is that in the first stage of the appeal to the Iowa District Court, the Court has denied the request of the insurance companies and employers to stay or suspend the Commissioner’s Order on surveillance until the appeal process is completed. Therefore, the Commissioner’s Order expanding the discovery of surveillance materials is currently in full force and effect.

EXPERTS THAT THE DEFENDANTS ARE NOT PLANNING TO USE AT TRIAL. Sometimes when defendants investigate a case they will ask doctors or other experts to review records and give opinions on issues such as whether or not the expert believes that a worker’s injury was caused by work. Sometimes these “background” experts give opinions that are actually in favor of the injured worker. Some insurance companies and employers have taken the position that if they do not plan to use the opinion of the background expert at trial, then they do not have to reveal the existence of the background expert in discovery. In recent cases the Iowa Workers’ Compensation Commissioner has ruled that this is incorrect, and the identity of the background experts needs to be revealed whether or not the opinions help or hurt the defendants. Obviously, it is very positive to the injured worker if he can show that experts chosen by the insurance company and employer agree with the injured worker.

NURSE CASE MANAGERS. Over the years there has been quite a bit of uncertainty and controversy over whether the records of nurse case managers are subject to discovery. However, the Iowa Workers’ Compensation Commissioner has recently ruled that the records of the nurse case managers are subject to discovery. Sometimes these records do not actually help the injured worker. However, in other cases the records of the nurse case manager do contain assessments and opinions that are very favorable to the injured worker’s case.

WAGE RECORDS. Figuring out the correct weekly rate that an injured worker should be paid is very important in every case. My blog post of December 7, 2012 gives an overview on how to correctly calculate the weekly rate. That blog post calculating the weekly rate can be found here. Sometimes when an injured worker comes to see me they will have good records about their earnings, and I can calculate the weekly rate without having to rely on any information from the employer.

However, frequently my clients do not have all the necessary records to allow me to calculate the weekly rate. Discovery allows me to get all of the necessary records from the employer and insurance company.

It can be surprisingly difficult to correctly calculate the weekly rate. In a recent case my client was being paid $330 per week in benefits, and he was actually entitled to $540 per week. That is by far the largest underpayment I have ever seen, but frequently, it turns out my clients had been receiving underpayments of their benefits.

INSPECTING INJURY SCENES. As part of discovery I can also require the employer to let me go into a worksite and take measurements, photos, and videos of the scene. In a case where a worker has suffered cumulative trauma from years of doing the same job a videotape of the worksite can be very valuable in persuading the work comp judge that the injury was caused by the job. A video showing the difficulty of a job is even better than having the worker describe it, and a video is a great counterargument to the defense position that the job really wasn’t that bad.

DEPOSING DEFENSE WITNESSES. If there are important defense witnesses the Iowa discovery rules allow me to go and take a formal interview of the witnesses that is called a deposition. In a deposition the defense witness is sworn to tell the truth, and a court reporter takes down all of my questions and all of the answers of the witness, and types the interview up into a book form that can be used at trial. Depositions can be very helpful to help build up the case on behalf of my client, and help me get ready to point out the flaws of the defense arguments at trial.

DISCOVERING THE DEFENSE THEORY OF THE CASE. In a wide variety of different Interrogatories and production requests I also make sure that I understand what the defense arguments are in the case, and what is the evidence the defendants are relying upon to prove their arguments. The better I understand the details of the defense theories, the better I can show why the injured worker is entitled to recover.