Are you seeing more cases where applicants' attorneys start fighting subpoenas for prior records?

Gregory Grinberg

I am seeing them now and again, and besides being annoying they appear completely unfounded. If you want privacy, the last place you go is before the Workers' Compensation Appeals Board to claim an industrial injury. But that’s what applicant’s ultimate goal appeared to be in the case of Collins v. City of Vacaville, a recent case in which the WCAB rejected applicant’s challenge to defendant’s subpoena.

Defendant engaged in discovery by subpoenaing applicant’s employment records from his prior jobs. In the instant case, applicant worked as a law enforcement officer for various cities, and his current employer sought records from his prior employers. 

Applicant objected, filing a petition to quash the subpoena on the basis that Evidence Code Sections 1043-1046 and Penal Code Sections 832.7-832.8 provide special procedures for obtaining police officer records. The workers' compensation judge granted the petition.

Penal Code Sections 832.7-832.8 require compliance with the Evidence Code to produce personnel records of peace officers, and sections 1043-1046 require additional affidavits and supporting documentation to obtain copies of the personnel records.

The WCAB granted removal, reasoning that the Legislature did not intend to apply Evidence Code Sections 1043-1046 to “routine personnel records of an applicant who has filed a workers’ compensation claim.” 

Examining the legislative history, the WCAB notes that the Supreme Court’s decision in the case of Pitchess v. Superior Court, holding that criminal defendants have a right to know if the officers involved in their cases have a history of misconduct complaints, prompted the Legislature to enact PC 832.7-832.8 to protect officers from harassment.

Prior case law involves rejecting similar arguments to a police officer seeking to protect his earnings history during divorce proceedings.

The WCAB ruled that “compliance with Evidence Code Sections 1043 through 1046 is not required in circumstances such as these.” However, the panel tempered this ruling by advising that the WCJ may still determine whether the subpoena is overbroad, unclear, burdensome or otherwise inappropriate.

Understandably, we all get mired down in the trees of our beloved workers’ compensation swamp, but let’s take a brief moment to look at the trees. What possible reason would an applicant have for interfering with an employer’s discovery of prior personnel records? What is applicant afraid will be found?

Well, if it’s a bunch of routine health exams showing he was in perfect health prior to working for defendant, wouldn’t he be eager to disclose those? Just a thought.

In any case, what rationale is offered for this so-called right to privacy in a workers’ comp proceeding? One does not get leniency in being sentenced for the murder of one’s parents on account of being an orphan. The best way to maintain one’s privacy is to refrain from making workers’ compensation claims that turn directly on medical and employment history.

The Collins case dealt with yet another argument applicants are making to avoid disclosing their history. Hopefully, the makings of this trend in obstructing the basic discovery to which defendants are entitled will die on the vine.

Gregory Grinberg is a workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.