Michigan Administrative Code › Department - Labor and Economic Opportunity › Workers Compensation Agency › Workers' Compensation Board Of Magistrtes › Part 1 - GENERAL › Section R. 418.91 - Discovery

Current through Vol. 24-12, July 15, 2024
Rule 11.
(1)
				  Discovery provided in sections 222, 301, 401, and 853 of the act, MCL 418.222,
				  418.301, 418.401, and 418.853, and applicable caselaw, must be available under
				  the supervision of the magistrate as set forth in this rule.
(a) The claimant shall provide the
				  information and records required pursuant to section 222(3) of the act, MCL
				  418.222, a completed WC-105A, and copies of reports from medical examiners
				  requested by the claimant or his or her attorney within 30 days of
				  receipt.
(b) The employer or carrier
				  shall provide information and records required pursuant to sections 385 and
				  222(2) of the act, MCL 418.385 and 418.222, and a completed WC-105B, except
				  where the employer is no longer active and there is no representative available
				  to complete the form.
(c) The
				  parties shall reasonably supplement their responses to subdivisions (a) and (b)
				  of this subrule as new information is obtained or records are
				  received.
(d) Vocational consultant
				  reports and the information contained therein must be provided to all parties
				  within 21 days of receipt of the reports. Failure to observe the time periods
				  in this subdivision may be raised by any party as a basis to exclude the report
				  as evidence at the discretion of the magistrate. Any information in the report
				  regarding available remunerative employment must include all of the following:
(i) The name, address, and phone number of
				  the employer with available employment.
(ii) A job description outlining all of the
				  functional requirements of the job.
(iii) Any other pertinent information
				  necessary to apply for the employment.
(e) If an employer or carrier independently
				  obtains information that remunerative employment is reasonably available to the
				  injured employee, the employer or carrier shall, within a reasonable time,
				  provide to the employee or his or her attorney all the information required in
				  subdivision (d)(i), (ii), and (iii) of this subrule.
(f) If not already provided by the employer
				  pursuant to subdivision (b) of this rule, employers, carriers, and claims
				  administrators shall, upon written request, provide a complete copy of all
				  employment, personnel and claims records of the employee in their possession,
				  including, but not limited to, electronically stored, or communicated
				  information. Records must include, but are not limited to, all of the
				  following:
(i) Payroll records.
(ii) Records and values of all fringe or
				  other benefits.
(iii) Injury
				  reports.
(iv) Witness
				  statements.
(v) First aid and other
				  medical reports.
(vi) Group
				  insurance records.
(vii) Material
				  safety data sheets.
(viii) Air
				  quality studies.
(ix) Occupational
				  safety and health reports.
(x) Nurse
				  case management records.
(xi)
				  Non-privileged portions of the claims file.
(g) Upon request, an employee shall submit to
				  an examination by a physician or surgeon authorized to practice medicine in
				  this state. The term 'physician' as used in this rule shall be interpreted to
				  include psychologists who satisfy the requirements of section 18223 of the
				  public health code, 1978 PA 368, MCL 333.18223, and section 1100c(11) of the
				  mental health code, 1974 PA 258, MCL 330.1100c. The magistrate may determine
				  the time, place, manner, conditions, and scope of the examination. Other than
				  as provided for in section 385 of the act, MCL 418.385, no person other than
				  the employee may be present at the examination without the consent of the
				  opposing party or by order of the magistrate for good cause shown.
(h) Upon the request of a defendant employer
				  or carrier, an employee seeking wage loss benefits shall appear for an
				  interview regarding his or her qualifications and training conducted by a
				  qualified vocational rehabilitation consultant at a time and place convenient
				  to the employee. The employee may appear with a person of the employee's
				  choosing. The employee may record the interview at the employee's expense with
				  the consent of the opposing party or by order of the magistrate for good cause
				  shown.
(i) Additional discovery
				  under section 853 of the act, MCL 418.853, may be made equally available to all
				  parties at the discretion and supervision of the magistrate.
(j) For claims arising out of an employee's
				  death, the employer or carrier shall, upon written request, provide the
				  following to the claimant's attorney within 28 days:
(i) The names, addresses, and telephone
				  numbers of all individuals with information about the employee's jobs duties
				  and the events and circumstances surrounding the employee's injury or
				  death.
(ii) Copies of all
				  investigation or incident reports and witness statements in the employer's
				  possession or control.
(iii) Copies
				  of all electronically stored information, including video surveillance, that
				  documents the employee's injury or death and the circumstances surrounding
				  it.
(iv) Depending on the nature of
				  the case and the issues involved, the magistrate may order other forms of
				  discovery, upon request of a party and for good cause shown.
(v) The obligations set forth in subdivision
				  (j)(i) and (ii) of this subrule apply equally to information possessed by
				  claimants, their attorneys, and agents thereof.
(k) For claims arising out of an employee's
				  cognitive or communicative incapacity, a magistrate may require the employer or
				  carrier to provide the information set forth in subdivision (j) of this subrule
				  upon a sufficient showing of such cognitive or communicative
				  incapacity.
(l) Evidence exchanged
				  pursuant to this rule shall not be provided to or maintained by the agency
				  unless marked as an exhibit by a party.