Respondents Need to be Specific in Discovery Requests

02.16.16

Category: New Jersey

The issue in the matter of Todaro v. Gloucester Cty Corrections was the petitioner's (employee's) attorney's appeal of a denial of a request for additional counsel fees for successfully defending against a motion to compel medical records filed by the respondent's attorney that the attorney saw as necessary for the case. The Court, in an unreported decision on February 4, found the request was too broad for the injuries presented and also denied the request for additional fees.

Todaro involved an admitted injury with authorized treatment that was completed before the respondent's answer was filed. The authorizations were sent to the employee and he refused to sign them. A motion to compel was filed and opposed. The respondent's authorizations and request for medical records contained no limit as to the scope of the discovery. It appeared to be all inclusive and not just for the alleged injured body parts.

Testimony of the employee was taken and the respondent relied on the information that the employee was previously involved in up to 10 motor vehicle accidents. In order to protect its Abdullah credit right, the respondent demanded the discovery. The employee testified that after each accident he did not seek any treatment and the Court found him credible and denied the motion for prior records. The employee's counsel, at the resolution of the claim, requested $15,000 additional counsel fees for successful defense of the motion claiming the respondent violated New Jersey statute and caused unreasonable delay in the proceedings. The Court rejected the request.

The Appellate Court affirmed the Workers' Compensation Judge's (WCJ) decision that no additional fee was necessary. The WCJ was critical of the respondent's discovery conduct, but noted that each party has the right to zealous representation. The WCJ felt an additional fee above the 20 percent awarded would be "punitive." The Lower Court decision discussed the respondent's right to investigate previous injuries to protect credit rights if applicable and weighed it against the petitioner's right to privacy. The Appellate Court noted that "we agree with Judge Cox that the routine practice of respondent's attorney in attempting to obtain such wide ranging discovery...should not be tolerated. NJSA 34:15-12 (d)...does not warrant such an intrusion into a petitioner's privacy rights."

Comment: The key information to take away from this decision is that as respondents, we need to craft any discovery request to the specific body parts alleged in the claim petition and support same with a recognizable and reasonable basis for the request. The Court will not accept or allow blanket medical records requests. 

Media Contacts

Lexi Burchmore
267.295.3377
lburchmore@wglaw.com

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