The recently-enacted presumption of compensability for COVID-19 industrial claims raises a number of discovery issues that are seldom encountered in most workers’ compensation cases. Due to the nebulous nature of infectious diseases, particularly one as widespread as COVID-19, insurers face challenges in rebutting these claims.
There are a number of possible sources of exposure, from supermarkets to outdoor activities, as well as exposure from family members. The discovery process is critical in evaluating alternative sources of infection. One possible approach is disputing that applicant became infected at work. This article addresses some of the limitations on discovery in areas of the applicant’s home and family relationships.
If an applicant may have been infected by a family member, defendant may seek to inquire into the possible infections of immediate family members. If an applicant’s spouse is a possible source of the infection, may that spouse be compelled to offer evidence on their medical status, including COVID?
Like many states, California recognizes a privilege that prevents a spouse from being compelled to testify against their spouse. There are two marital privileges that restrict the ability to obtain discovery from an applicant’s spouse. First, a spouse may refuse to testify against the other spouse (spousal testimony privilege) (Evid. Code, § 970.) Second, a spouse may refuse to be called as a witness by an adverse party (Evid. Code, § 971).
Therefore, a spouse may refuse to disclose confidential communications between them during their marriage (marital communications privilege). (Evid. Code, § 980.) In a workers’ compensation case, it is unlikely that a spouse may be compelled, either in a deposition or at trial, to testify regarding their communications with their spouse, including issues concerning COVID infection.
Very few workers’ compensation cases deal with the scope of spousal immunity. In Villacis v. County of L.A. Sheriff’s Dep’t, 2017 Cal. Wrk. Comp. P.D. LEXIS 150, the WCAB held that a defendant could call a deceased worker’s spouse as a witness at trial because she had already testified at her deposition. However, the WCAB instructed the trial judge to review the questions posed at trial to determine if a valid marital confidentiality claim could be asserted.
In Juarez v. Westside Bldg. Materials, 2019 Cal. Wrk. Comp. P.D. LEXIS 571, the WCAB upheld the exclusion of a worker’s spouse at trial on the basis of marital privilege. Defendant sought to compel her testimony as to whether applicant, who claimed permanent and total disability, had been working. The WCAB held that the testimony was privileged spousal communications and was properly excluded.
In COVID-19 cases it is unlikely that defendant will be allowed to compel an applicant’s spouse to testify about applicant’s statements regarding infection and exposure. However, there is no similar privilege for other family members, such as children and in-laws. Therefore, testimony from those parties regarding possible sources of infection may be compelled.
If spousal testimony is generally excluded, may a defendant obtain medical records of a spouse? Generally, medical records obtained from a non-party are subject to privacy claims, including HIPPA. Under HIPPA, protected health materials may be disclosed only so long as the disclosure is subject to a qualified protective order.
Therefore, provided that a protective order is secured, such medical records, if shown to be potentially relevant to applicant’s claim, may be sought. A protective order is a court order that limits the disclosure of sensitive or privileged documents beyond the parties to the litigation. A protective order is frequently stipulated to by the parties when the records are clearly sensitive or would cause unnecessary embarrassment if released beyond the scope of the current litigation.
Interestingly, the WCAB has not provided much guidance regarding non-party medical privacy claims. However, in De Silva v. Mission Hosp., 2016 Cal. Wrk. Comp. P.D. LEXIS 550, the WCAB held that a subpoena requesting infection control reports, policy and procedure manual pertaining to infection prevention and control for operating rooms, and all records pertaining to monthly infectious control department reports for operating rooms ran afoul of HIPPA. The WCAB noted that the subpoenas were potentially overbroad and should be limited once the case was remanded to the trial level.
There appears to be a valid basis for requesting a spouse’s medical records, particularly if the argument is that the spouse was the source of the infection. However, the WCAB may require a protective order to prevent disclosure of the spouse’s medical records beyond the WCAB. Also, the subpoena will need to be narrowly worded to include only medical records that have a relation to possible infection. Unnecessary and non-relevant medical records should be excluded from a spousal medical-record subpoena.
A final consideration is the extreme limitation on COVID-19 cases under the Executive Order. Rather than having 90 days to accept or deny a claim, defendants have only 30 days to do so for COVID claims. Realistically, completing discovery in 30 days, particularly in complex infectious disease cases like COVID claims, is generally not feasible. However, even if a claim is denied, discovery still remains open until the case is heard before the WCAB. Defendants should therefore move quickly to schedule depositions and begin discovery, which may include the depositions of family members and requesting family members’ medical records as soon as possible. Defendants should get their “foot in the door” immediately by commencing discovery and scheduling depositions, even if discovery cannot be completed in 30 days.
In discovery during COVID-19 cases, testimony from an injured worker’s spouse regarding possible sources of infection, applicant’s hygiene, and claims made regarding infection are generally privileged and therefore excluded from evidence. However, defendant can compel testimony from non-spousal sources, including children and other family members.
Finally, provided that a protective order is obtained, medical records from non-parties, including applicant’s spouse, may be obtained. These records may reveal alternative sources of infection may rebut an applicant’s COVID-19 claim.
Michael P. Burns is a Partner at Bradford & Barthel’s San Jose location. Before joining B&B, Michael practiced civil litigation and employment law. If you have questions about COVID-19 claims or any other workers’ compensation defense issues, feel free to contact Michael at mburns@bradfordbarthel.com or (408) 392-8202.
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