Function of (new?) legal citations in AA's NOR (California)

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Function of (new?) legal citations in AA's NOR (California)

Postby wcadjuster on Fri Dec 18, 2009 3:44 pm

Hi All,

A client of mine recently received a Notice of Rep from a well known SoCal AA's mill and was a bit freaked by a paragraph on the first page citing essentially the following:

Pursuant to CCP Section 2031 & Dowel v Superior Court & Holm v Superiour Court, demand is made for a copy of any statement taken of the applicant in the possesion or control of defendants.

I'm not clear on it's operation or effect on an industrial claim file. But the related CCP codes seem to be directed towards a carrier, vs. the actual employer.

Does anyone have any thoughts, insight? Has this wording been on AA's NOR's for a while, or is this relatively new?

Thanks, and Happy Holidays everyone.
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Re: Function of (new?) legal citations in AA's NOR (California)

Postby stewshe on Sat Dec 19, 2009 10:40 am

wcadjuster,

I think you have a tempest in a teapot. The request is boilerplate and usually includes a request for a copy of ALL statements of any witnesses. Today is my first day of retirement. In the 36 years I've been involved with claims, as an adjuster and as a legal assistant, I have only seen 2 or 3 times when a signed, handwritten or recorded statement was entered into evidence and POSSIBLY made a difference. In 4 years as a claims rep I took perhaps 1,000 to 1,500.

What I do not understand is why a claims person would be at all reluctant to give an AA a copy of a statement claims received from an EE now represented? The EE is entitled to a copy!

The purpose of the boilerplate is to aid the AA in possibly later claiming any statements not procuced should at that later date be barred because of defendant's refusal to previously produce the statements after they were specifically requested.

Per Evidence Code §413, evidence which is under the control of a party which is not produced is to be presumed adverse to the interests of the party supressing it. That "production" is at trial, or MSC, but earlier requests which are not honored are usually forgotten.....

Also, failure to serve mecical reports is suppression of evidence, CCR §10622, and I suspect there may be another section dealing with transcripts of statements or signed statements?

As far as "witness statements" are concerned, the following are excerpts from my Work Comp Index, 8th edition with some updates still in progress for the 9th in May-June of 2010 (See the "Classifieds" section in this Forum):

(I've used "....." to force hanging paragraphs because spaces end up flush left here. Also, I've condensed the cites, eliminating "vs WCAB," etc.)

• Recorded statements of witnesses requested by applicant’s attorney several times, but
...not provided: One witness testified at trial he gave several such statements, but after
...WCJ ordered all witness statements provided, only some were (4 days before trial), so
...testimony of witnesses concerning “good faith personnel action” was excluded, City of
...Livingston (MADRID) 32 CWCR 159, 69 CCC 556

• Statements of witnesses: Are not work product, but employer may be entitled to a protective,
...order MORENO 21 CWCR 108; MARTIN 25 CWCR 332, 62 CCC 1500

....¤ Disclosure of witness statements: After a showing of good cause, all non-privileged
.......witness statements must be divulged to other party before trial, HARDESTY 4
.......CWCR 57, 41 CCC 111; CWCLP §§20: 03, 20:21, 20:41, 20:61

......▪ Claims examiner’s notes not within attorney-client privilege, Winchell’s Donut
........(SALDANA) 62 CCC 1185; 6/00 CAAA §8.9

.........▫ WCJ ordered “in camera” {i.e., private, WCJ only} inspection of e-mail between
............claims adjuster and their defense attorney: WCAB ORDERS.... (Fortier SAC
............270608) 28 CWCR 75

• Requested, but not provided by defendant prior to trial: Not later admitted, Ray (THOMAS) 59 CCC 789

Attorneys are not exempt from having their files subpoenaed, even including what IS their "work product" for their client, noted in the second paragraph quoted above, under some circumstances:

• Attorney Work Product not protected if knowingly participating in fraud: Civil Pro. §2018

The bottom line is what I was told on my first day on the job as a claims trainee, 12/10/73: NEVER put anything into a claims file which you believe would hurt (this company) if it were to appear on the front page of the newspaper.

The same is true of an attorney's office....representing any of the many "sides" in comp.

You're welcome to forward the above cites to your client, but I suspect if they "freaked" over producing an EE's statement to the EE's attorney, they would probably need a "5150" hospital admission if they learned it is possible for their most closely guarded, "private papers" and secret memos to someday be disclosed to the public!

stew
James T. Stewart (stewshe@comcast.net)
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Re: Function of (new?) legal citations in AA's NOR (California)

Postby jpod on Mon Dec 21, 2009 8:34 am

Congrats on the retirement Stew!!
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Re: Function of (new?) legal citations in AA's NOR (California)

Postby wcadjuster on Wed Dec 30, 2009 12:32 pm

Stewshe: I think you have a tempest in a teapot. The request is boilerplate and usually includes a request for a copy of ALL statements of any witnesses. Today is my first day of retirement.


Agreed! & Congrats on the change in your life!

What I do not understand is why a claims person would be at all reluctant to give an AA a copy of a statement claims received from an EE now represented? The EE is entitled to a copy!

The purpose of the boilerplate is to aid the AA in possibly later claiming any statements not procuced should at that later date be barred because of defendant's refusal to previously produce the statements after they were specifically requested....You're welcome to forward the above cites to your client, but I suspect if they "freaked" over producing an EE's statement to the EE's attorney, they would probably need a "5150" hospital admission if they learned it is possible for their most closely guarded, "private papers" and secret memos to someday be disclosed to the public!


No reluctance on anyone's part, since there's nothing to provide, but I think the employer was overly scrutinizing the letter because they're trying to understand why this EE of over 30 years (mysteriously) litigated. I've seen ton of NOR letters that essentially request what you commented on, but personally I'd not seen actual citations anywhere before on the subject matter. So it made me think exactly what you did, perhaps the AA got burned before in the past and wanted to strengthen the wording.

But thanks for your citations and reply, they will prove valuable!

Happy New Year ALL!
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