Petitioner's Discovery "Fishing Expedition" Disallowed By The Appellate Division
The case of Brock v. PSE&G is well known for its holding regarding the notice provisions of the workers' compensation statute, as reported in previous issues of this newsletter. In the case's most recent trip to the Appellate Division, the petitioner's broad and burdensome discovery requests were denied. Brock v. PSE&G, 325 N.J. Super. 582 (App. Div. 1999).
After the New Jersey Supreme Court held that the petitioner must comply with the notice statute N.J.S.A. 34:15-36 for occupational diseases, which requires that a petitioner supply the employer with notice of an occupational disease within five months of the date he knew or should have known "the nature of his disability and its relation to his employment," regardless of prejudice to the employer, the case was remanded to the Division of Workers' Compensation. The petitioner's attorney then filed a motion for discovery of numerous documents from the employer not specifically related to this petitioner including:
- detailed information about other employees including a list of co-employees names and addresses, names and addresses of co-employees who filed asbestos claims and information regarding medical monitoring of other PSE&G employees;
- information that would establish PSE&G's knowledge of the presence of asbestos in the plant and that exposure to asbestos was dangerous, including air sampling data, information regarding internal memoranda addressing removal of asbestos and internal documents discussing the effects of asbestos on the human body;
PSE&G had acknowledged the petitioner's exposure to asbestos at its plant and the only issue on remand was whether the employer had notice of petitioner's asbestosis. The workers' compensation judge denied the petitioner's discovery motion holding that the information that the petitioner sought could not establish notice under the workers' compensation statute and therefore the petitioner was not entitled to it. While the requested discovery might reveal that other employees contracted asbestosis, this fact could not be used to establish that the employer had "constructive notice" that the petitioner also contracted asbestosis.
The Appellate Division upheld the workers' compensation judge's ruling that the discovery the petitioner sought had no bearing on the issue of notice and further noted that the employer has no obligation to inquire as to an employee's medical condition after the employment relationship has ended.
The rules of the Division of Workers' Compensation provide for specific circumstances where certain types of discovery will be allowed, such as standard form interrogatories for occupational disease and death cases N.J.A.C. 12:235-5.6. For discovery other than the specific items noted in the rules, there is a requirement that a motion must be filed and the requesting party must show "good cause." This vague "good cause" standard is not often discussed in the case law. It is refreshing to see that the Division of Workers' Compensation and the Appellate Division would not allow the burdensome and irrelevant discovery sought by the petitioner in this case. The holding in this case can be used to argue against similar types of overreaching discovery requests made by petitioners' attorneys
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