A couple of recent decisions around the country have provided reminders of the confines of the adversarial process and how much process is due.

A worker alleges an injury. The employer denied compensability. The employer alleged that during the litigation, the worker sought and received medical care using an alias. The employer sought discovery regarding the records of care under the alias. The trial court denied access to those records, found the accident compensable and awarded benefits. The New York Workers' Compensation Board denied rehearing, concluding that the "records would not be probative of the relevant issues." The employer appealed, and on Dec. 24, 2014, the court reversed.

The court noted that the worker did produce some records and admitted that he had received care using an alias (different name and date of birth) following the injury. However, he successfully resisted employer access to those records. The court noted that "the other medical records that claimant did produce contain conflicting evidence as to the cause of claimant's alleged injuries." The court concluded that without access to the records of treatment under the alias, "the employer did not have the opportunity to fully litigate this issue."

Can there be due process without discovery? The trial judge and Workers' Compensation Board certainly concluded so. At the appellate stage, three judges concluded no and reversed. A fourth judge dissented with a written opinion. Some might characterize it as the "Paul Harvey" or the "rest of the story."

The dissent explains that due process was not denied as much as it was perhaps waived. The argument seems essentially to be that the employer had opportunities to both present evidence and to access these alias medical records from the board file. As important, the dissent stresses that "the issue that the employer asserts relative to the medical records was not brought up for board review, and this matter" was before the appellate court on a limited basis for review. (Emphasis added). The dissent explains that to protect rights, they should be asserted at each level of the appellate process.

The case is Matter of Mejia v. Drake Group LLC. The result may appeal to you. Full disclosure of relevant information is critical to the adversarial system. The dissent may appeal to you, parties have to protect their rights; any right can be waived. In the end, it pays to protect/assert your rights. It is never comfortable for some adjudicator or court to conclude your client has waived their rights.

Illinois also had a recent appellate decision on due process. On Dec. 31, 2014, the First District Appellate Court rendered RG Construction Services v. The Illinois Workers' Compensation Commission (Alfredo Martinez). There, an arbitrator concluded that the injured worker had suffered a right knee injury and awarded benefits.

In so concluding, "the arbitrator rejected the employer's contention that its 14th amendment (U.S. Const. amend. XIV) due process rights were violated by the admission of medical records that contained the medical opinions of two of claimant's treating physicians." Illinois has a statute, similar to Florida's, that allows the admission of the records of treating physicians. When the records are submitted as evidence, where is the right of confrontation, the cross-examination?

An appeal to the Illinois Workers' Compensation Commission resulted in an expansion of the arbitrator's compensability findings, and the commission concluded on appeal that the worker had a compensable injury to each knee.

Essentially, the employer sought an opportunity to cross-examine the physicians whose opinions were stated in their respective medical records, which were placed into evidence. To do so, the employer also sought a continuance of the arbitrator hearing. The arbitrator offered the employer the opportunity to take the deposition, but at its expense rather than the expense of the worker. The arbitrator concluded that the employer's 14th amendment rights were protected by its ability "to provide rebuttal evidence in the form of  reports from its examining physicians."

Of interest, both physicians' records included the regular office notes, but also correspondence. The Florida courts have addressed the admissibility of correspondence, and whether they are "medical records." In Florida, our statute allows the introduction of the medical records of treating physicians. Fla. Stat. 440.29(4) says:

(4) All medical reports of authorized treating health care providers relating to the claimant and subject accident shall be received into evidence by the judge of compensation claims upon proper motion. However, such records must be served on the opposing party at least 30 days before the final hearing. This section does not limit any right of further discovery, including, but not limited to, depositions.

Under a similar provision, the claimant in Illinois sought to introduce the medical records, correspondence, etc., of those treating physicians. The employer wanted to cross-examine those doctors and argued that its due process was violated because the claimant did not depose the doctors. The employer declined its right to depose those doctors itself.

On appeal, the employer essentially argued that due process includes the right to make others (the claimant) take steps to protect your rights. The commission concluded that the employer's due process had been afforded by the opportunity to depose the physicians, which the employer declined. As the employer declined, the commission essentially concluded that the due process argument was waived.

From the commission, the matter proceeded through the court process, ending at the 1st District Court of Appeal. The District Court concluded "due process includes the right to present evidence and argument in one's own behalf, a right to cross-examine adverse witnesses, and impartiality in rulings upon the evidence that is offered." The right, it noted, includes both the right to cross-examine and to offer evidence in rebuttal.

The court concluded that the commission correctly held that the Illinois statute permitted the admission into evidence of treating provider records, including the provider's opinions and conclusions. The admission of the records without the moving party taking a deposition is not a denial of due process for the other party. The employer here could have protected its due process by proceeding with the deposition at its own expense.  

The lesson perhaps from both of these rulings is that due process is a protection that has to be claimed, but which also can be waived. Each party has to take steps to protect its own interests or may waive its right to the protections of the Constitution. Not necessarily authoritative in Florida, but good illustrations both.

David Langham is deputy chief judge of the Florida Office of Workers' Compensation Claims. This column was reprinted with his permission from his Florida Workers' Compensation Adjudication blog.