November 2015 Newsletter

The Discovery Process

By Samuel Frankel, Esq.


As many of our clients know, once a claim is referred to the Office of Administrative Law Judges, it is assigned to a Judge, a Notice of Hearing is issued with a trial date, and the Parties are permitted to begin formal discovery.  The discovery process is something that is part of every lawsuit, even claims under the Longshore Act and Defense Base Act.  Since the Longshore and Defense Base Acts are federal laws governing benefits for injured workers, the rule and regulations controlling the discovery process are the Federal Rules of Civil Procedure and the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges (which essentially mirror the Federal Rules of Civil Procedure).

These rules allow Parties to exchange written discovery requests, subpoena records, and to depose Parties and witnesses to a lawsuit.  You will normally see three types of written discovery:  interrogatories, requests for production, and requests for admissions.  Interrogatories are written questions that are answered by you under oath.  Requests for Production are requests for you to produce copies of certain documents, like medical records, wages or taxes, and other documents.  Requests for Admissions are requests for you to admit or deny the truthfulness of certain factual statements about your claim (i.e., “Admit or deny you worked for ABC Corporation on the date you were injured”).  Although answers to discovery requests are due within 30 days of receiving the requests, failure to answer a Request for Admissions within 30 days may allow the Court to deem the requests admitted – something that can seriously harm your case, especially if your Employer wants you to admit you were not hurt at all!

Each Party sends these written discovery requests to the other Parties in a case.  Our office sends written discovery to your Employer and its insurance company to answer.  Our questions and requests concern your employment, any benefits that may have been paid, and any defenses your Employer or its Carrier may have to your claim.  The Employer and Carrier also sends written discovery to our office for you to answer.  We prepare the paperwork with what we have in your file, and send the request to you to complete to the best of your ability.  Keep in mind that you MUST answer all the questions, and provide the requested documents.  Once you send us your answers and documents, we prepare everything for submission to the requesting Party.

Some of our clients feel the questions asked are intrusive or irrelevant.  Regardless of how you feel about the questions or document requested, you must answer them to the best of your ability, and provide whatever documents needed to respond to the requests.  Our office will review everything, and if we believe a particular question or request is objectionable, we will make that objection and provide a legal basis for the objection.  If necessary, the Judge will decide whether a question must be answered.

There is a difference between what is discoverable during litigation, and what is admissible into evidence at trial.  The Longshore and Defense Base Acts are federal workers’ compensation laws that provide medical care and lost wages for injured workers.  Once you make a claim for benefits under these laws, you place your health and employment status at issue.  That means the Employer and its Carrier is entitled to ask ALMOST ANYTHING about your personal health – all of your current or past medical conditions, doctors, and medications become the subject of discovery.  That does not mean everything will be admitted into evidence at trial for consideration by the Judge, but it does mean everything has to be disclosed during the discovery process.  The same rule applies to your employment status – if you are claiming lost wages because of a work-related injury, the Employer and its Carrier can ask you about ALL of your past or current jobs, your salaries, raises, supervisors, responsibilities, certifications, education, reasons why you took a job, left a job, or were fired from a job.  By placing your health and earning capacity at issue, the law permits the Employer and its Carrier to investigate everything about your health and employment.  It will be up to your lawyers to decide whether certain information should be admitted into evidence.

Like everything in the law, there are a few exceptions.  However, those exceptions are based on legal arguments, and they are handled by your attorneys.  We cannot give you good advice about your claim, or raise necessary objections during discovery, unless we have all the information possible.

We you receive requests from our office asking you to sign releases, send records, or answer questions, please cooperate fully.  If you have any specific concerns, call us so we can discuss your concerns and how to handle them.

Success Stories

H.S. v. Service Employees International, Inc. and AIG, 2014-LDA-00780 (November 5, 2015).


The Claimant sustained physical injuries while working in Iraq for the Employer.  The Employer/Carrier provided medical benefits for the Claimant’s physical injuries, and paid compensation benefits until 2014.  In 2014, the Employer/Carrier reduced the Claimant’s compensation benefits nearly in half, and denied further medical care, alleging the Claimant had reached maximum medical improvement for his injuries.  The Claimant also began to suffer from some emotional symptoms, which some doctors related to the ongoing pain from his physical injuries.  An Informal Conference was held, and the District Director recommended the Employer/Carrier reinstate compensation benefits, continue providing treatment for the physical injuries, and accept the emotional injuries as compensable.  The Employer/Carrier refused to comply with the recommendations, and David C. Barnett, Esq. pursued this matter to trial before Judge Lee J. Romero.  After extensive litigation and discovery, Judge Romero prepared a 91 page opinion awarding the requested benefits to the Claimant, finding the emotional injuries secondary to his physical injuries, and compensable.  The Judge also discredited multiple attempts by the Employer/Carrier to show the Claimant was capable of returning to work.  As a result, the Judge ordered the Employer/Carrier to reinstate the Claimant’s medical and compensation benefits, and determined the Claimant was permanently and totally disabled.

Lesson Learned:  Secondary injuries, such as emotional injuries, may develop years after an accident.  If you believe you may have a secondary injury from your accident (such as back pain from walking differently after a knee injury, or depression from ongoing physical pain), be sure you report it to your doctor as soon as possible, and notify our office.  Secondary injuries may be covered under the law as well, but we need as much information as soon as possible to amend your claim or file a new claim.


With the Holidays quickly approaching, the best gift of thanks you can give the firm is a referral!  If any of your friends, family, or co-workers were injured working overseas, no matter how long ago, please refer them to our office!  We will provide a free consultation and any assistance we can!


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