DISCOVERY
Applicability of civil rules -- medical experts
Attorney for self-insured employer engaged in ex parte contact with a forensic medical witness identified by the claimant. The witness had no contact with the claimant during the course of claim administration. The Board held that such ex parte contact violates CR 26(b)(4) and is objectionable. ....Jesse Gish, Jr., 89 0914 (1990) [See also, legislative restriction on contact with medical providers, RCW 51.52.063.]
There is no physician/patient privilege in workers' compensation claims. RCW 51.04.050. RCW 51.36.060 only applies during claims administration; it is not a discovery tool to be used during an appeal before the Board. During the pendency of such an appeal, the civil rules of discovery apply. However, a party is not required to use the discovery rules in order to confer with a witness identified, in good faith, as that party's own witness. In addition, because of the absence of the physician/patient privilege pursuant to RCW 51.04.050, doctors are not precluded from having ex parte contact with the Department or the employer. At the same time, however, RCW 51.36.060 cannot be used to require a doctor to engage in such ex parte contact. If a doctor decides not to engage in ex parte contact, the discovery rules must be used. CR 26 and relevancy considerations may impose further restrictions with respect to physicians who are not named as witnesses. ....Adelbert Farr, 88 0699 (1989) [Affirmed on other grounds, sub nom, Weyerhaeuser v. Farr, 70 Wn.App. 759 (1993) See also, legislative restriction on contact with medical providers, RCW 51.52.063.]]
Motion to compel
A motion to dismiss or compel discovery should not be considered unless there is compliance with the notice requirements of CR 37(a). In light of the discovery deadline, even if proper notice had been provided, the discovery request served the day before discovery was to be completed should not result in sanctions. In addition, the employer must be allowed the opportunity to be heard on the issue of the attorney fees. ....Jason McClure, 94 0569 (1995)
Physician-patient privilege
There is no physician-patient privilege with respect to workers' compensation claims. RCW 51.04.050. ....Adelbert Farr, 88 0699 (1989) [Affirmed on other grounds, sub nom, Weyerhaeuser v. Farr, 70 Wn.App. 759 (1993)]
Protective order
Protective orders pertain to discovery under the Civil Rules of Procedure. They are not to be used to sanction a party. Absent a request from a party, it is error for the industrial appeals judge to issue a protective order. ….Charles Montee, 08 19218 (2010)
Sanctions – See SANCTIONS Discovery
Testifying v. consulting experts
Although originally designated as a testifying expert, a party may re-designate an expert as a consulting expert, and the expert's opinions are shielded from discovery and use by the opposing party, so long as the expert is properly classified as a consulting expert under CR 26. ….Virginia Ayers, 08 14932 (2009)