The basis of our civil justice system is the ability to depose witnesses and subpoena relevant documents in order to prove a citizen's claim. In fact, cross examination of a party is one of the foundations of our democracy. It is vital that a civil plaintiff have access to all avenues in the discovery process to uncover the facts surrounding his lawsuit. However, too often in the Pennsylvania workers' compensation system, injured workers are denied access to full discovery and the fundamental right of cross examination of a party opponent.

Insurer v. Worker

When a worker is injured on the job, the adversary frequently becomes the insurer, not the employer. After all, it is the insurer that will ultimately have to pay the claim if the employer loses. Once an insurer is notified of a work injury, it has 21 days under the law to determine if a claim is compensable. Insurance adjusters make the initial decision to approve or deny a claim. The initial investigation usually involves interviewing the worker, obtaining witness statements and incident reports, and reviewing the worker's medical records.

The investigation is frequently cursory at best, and often nonexistent, relying only on second-hand reports from the employer's personnel. In addition, all of this is usually done before either side has legal representation. Given the adversarial relationship of the insurer with the injured worker, it is natural to question whether the investigation was reasonably performed or just a means to issue a rubber-stamp denial. Policymakers anticipated this and provided a section of the Workers' Compensation Act requiring that an employer shall conduct a reasonable investigation.

Far too often, a denial is issued arbitrarily, if not as a matter of policy. When a claim is denied, the worker may give up altogether. If they do seek legal representation and litigate the claim, resolution can easily take more than a year. Meanwhile, the injured worker is losing wages and benefits such as medical coverage and retirement contributions. They are also racking up costly medical bills or forgoing much-needed treatment, frequently allowing the injuries and conditions to worsen.

When injured workers are denied the benefits they deserve, they often have lost their earning capacity, their livelihoods, their employment benefits and their health insurance. This strains their credit and their relationships. Some have even lost their homes. An uncompensated work injury tears a life apart.

Despite those stakes, injured workers are frequently denied access to discovering the facts and reasoning forming the basis of those denials. That pertinent information is contained in the insurance adjusters' log notes and files, which are rarely turned over to claimants during the discovery process.

Blocking the deposition of the true adversary in the case—the adjuster—and discovery of the contents of the log notes deprives an injured worker of some of the most relevant information to the claim, severely prejudicing the ability to pursue and support his claim. The claimant's goal in seeking the adjuster's deposition and view the log notes is to gain access to a fair and complete record.

Public Policy of Broad Access to Discovery

While the Pennsylvania Rules of Evidence and Civil Procedure do not govern workers' compensation proceedings, they do provide guidance and should not be disregarded when issues of fairness and justice are at stake.

Pennsylvania Rule of Evidence 611(b) states that "a party witness in a civil case may be cross-examined by an adverse party on any matter relevant to any issue in the case, including credibility, unless the court, in the interests of justice, limits the cross-examination with respect to matters not testified to on direct examination."

Pennsylvania Rule of Civil Procedure 4003.1 says that "a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter."

Both these rules provide rather broad policies of access to discovery regarding matters relevant to the litigation. In the administrative context, a party's due process rights have been defined to include an opportunity to confront, question and cross-examine adverse witnesses. This is a constitutionally protected right, 2 Pa. Cons. Stat. Sections 504-505; Henderson v. Unemployment Compensation Board of Review, 77 A.3d 699, 705 (Pa. Commw. 2013).

Pennsylvania courts have held repeatedly that the questioning and cross-examination of adverse witnesses is not just a mere privilege, it is a right! Furthermore, a party is entitled to bring out every circumstance relating to a fact that an adverse witness is called to prove. See Rich Hill Coal v. Bashore, 7 A.2d 302 (Pa. 1939).

The adjuster's deposition is necessary—and often the only way—to determine whether the insurer's handling of the claim has been diligent, reasonable and in good faith. Conversely, it would be like a claimant's attorney objecting to the examination of a claimant in a termination, suspension or other petition by the employer.

The truth is at stake and the fact finder can give whatever weight is appropriate. However, the facts must be revealed.

No Privilege

On most occasions, however, insurers try vigorously to block claimants' attorneys from deposing claims adjusters and subpoenaing their files. The question becomes why.

Some insurance companies may claim the attorney-client privilege, which protects communications between attorneys and their clients. To be protected, the purpose of the communication must be for "securing either an opinion of law, legal services or assistance in a legal matter," as in Commonwealth v. Mrozek, 441 Pa. Super. 425, 657 A.2d 997 (1995).

Adjusters' log notes are not protected by attorney-client privilege; they are business records kept in the regular course of business of the insurer. They are not communications between an attorney and client. The purpose of the notes is not to "secure an opinion of law, legal services, or assistance in a legal matter," but is simply a part of the regular practice of the insurance company to log and investigate the claims filed.

Meanwhile, insurers may also raise the work-product privilege. That privilege has been defined by the Pennsylvania Supreme Court to protect "materials prepared by an attorney acting for his client in anticipation of litigation," as in Commonwealth v. Williams, 86 A.3d 771, 782 n.6 (Pa. 2014). Work product has been defined to include "mental impressions respecting the value or merit of a claim or defense, or respecting strategy or tactics."

While the scope of the work-product privilege is certainly broader, adjusters' files and log notes do not fall within its purview. An adjuster is an agent of the company hired to investigate and evaluate claims being made against the company. An adjuster's work on a file is not protected, see Dauphin County Bar Association v. Mazzacaro, 351 A.2d 229, 2356 (Pa. 1976) Their files are quintessential business records. Adjuster log notes are documents generated for ordinary business purposes that are not prepared for foreseeable litigation, as they are prepared and kept in every single workers' compensation file.

Right to a Fair Shake

Those injured on the job are owed the same discovery rights as other civil litigants. Employers are supposed to bear the burden to produce sufficient facts to invoke privilege. However, they are often given the benefit of the doubt in the workers' compensation system with overly broad interpretations of privilege. This allows insurers to shield relevant evidence from discovery, harming an injured worker's ability to prove his or her case.

Given that work injuries often put workers in the direst of circumstances, justice and fairness require they must have access to adjusters' depositions and log notes to serve their clients properly. Pennsylvania courts have often liberally construed the Workers' Compensation Act to recognize the humanitarian purpose of the law. Even in borderline cases, public policy in favor of broad discovery should control. Injured workers deserve a fair fight and the law mandates the same.

Samuel H. Pond is the managing partner at Pond Lehocky Stern Giordano, a workers' compensation firm. For more than 30 years, he has been representing workers injured on the job. He is also the host of the Legal Eagles radio show, which aims to educate the public on the law. He can be reached at [email protected].