The New Jersey Division of Workers' Compensation has adopted material changes in the form of discovery utilized in occupational disease cases. On March 16, 1998, the Department of Labor adopted amendments to N.J.A.C. 12:235-14.1 that radically changed discovery techniques for workers' compensation practitioners in the State of New Jersey. 30 N.J.R. 1047 (b). For almost a quarter of a century the Division of Workers' Compensation has utilized discovery that was geared to the labor-intensive manufacturing sector of New Jersey's economy. Over the last several years there has been a significant change to a service based economy. Complying with the new evidentiary requirements annunciated by the New Jersey Supreme Court in Fiore v. Consolidated Freightways, 140 N.J. 452 (1995), the new standard form discovery interrogatories were formulated.
Significant Changes
The most significant changes are embodied in the respondent's interrogatories directed to the petitioner. This all-encompassing, nineteen question set of interrogatories incorporates not only pulmonary occupational claim information but also orthopedic repetitive motion trauma, occupational cardiovascular, and hostile work environment claims. While the novice workers' compensation practitioner may find them helpful as an outline to prepare a claim for trial, the interrogatories themselves are significant in that they are elaborate in nature and will require extensive time and effort for the petitioner's attorney to provide responses in an appropriate fashion. It is anticipated that the interview and investigative process will become a lengthy endeavor in order to provide appropriate responses. The obvious goal of the agency's action is to have available all the factual information and expert opinions prior to the pre-trial conference so that the issues will be narrowed and the system will continue to function in an expeditious and summary fashion.
The petitioner must provide information with regard to repetitive motion trauma claims that specifies both the body parts affected and the activity performed on the job on a daily basis. This information must then be causally related to the medical condition. Additionally, the petitioner is required to set forth a description of the material lifted and its weight as well as the distance it was carried, the amount of time that this repetitive motion activity was performed and how it exceeded that which would be experienced in everyday living.
In the emerging area of cardiovascular and cerebrovascular occupational conditions the injured worker must provide details of the intensity and duration of the work effort and how it allegedly precipitated the cardiovascular or cerebrovascular condition. The petitioner is required to describe how the activity quantitatively was more intense than the physical activity which the petitioner was accustomed to outside the working environment. Furthermore, the petitioner must describe the time interval between the occupational activity precipitating the condition and the manifestation of the symptomotology.
Hostile work claims resulting in a psychiatric condition are becoming more evident in the field of workers' compensation law. The new interrogatories require that the petitioner provide a description of the nature and the duration of any stressful working conditions, the source of the condition, and how it was unreasonable and peculiar to the workplace. This discovery request will help focus the workers' compensation practitioner upon the mental condition that resulted in the mental disability in order to sustain the criteria established by Goyden v. State, Judiciary, 128 N.J. 54 (1992).
The stringent criteria established by the New Jersey Supreme Court in Brock v. Public Service Electric and Gas Co., 149 N.J. 378 (1997) are also reflected in the new standard form interrogatories which require that the petitioner set forth the date and circumstances when the employer had actual notice and knowledge of the petitioner's occupational condition. The petitioner is also obligated to supply the names and titles of the employer's personnel having knowledge of the condition.
Asbestos Litigation
In order to facilitate recovery against third parties in asbestos litigation, the employee is required to provide to the employer information concerning asbestos or asbestos-containing material. This will facilitate subrogation actions by respondent-employers or their insurance carriers pursuant to N.J.S.A. 34:15-40. This information should also alert petitioner's attorneys to the fact that they are obligated to advise the injured worker of potential third party actions and more specifically latent disease claims resulting from exposure to asbestos fiber. Greenwich v. Markhoff, 650 N.Y.S.2d 704 (1996).
Expanding the knowledge base available to respondents (employers and insurance carriers), the petitioner is now obligated to provide information concerning whether or not the petitioner has received any money for any injuries in the past or whether the petitioner is currently prosecuting a civil action. The petitioner is required to set forth the names of the defendants, the court where the matter is pending, the identity of the attorney pursuing the matter on behalf of the petitioner, the amounts of any settlements or awards, the date of injury and the nature of the injuries claimed. This information will vastly increase the potential for third party offset available to respondents.
Struggling with the issue of apportionment of responsibility in occupational disease claims where there are multiple insurance carriers and/or multiple employers involved, the Division has attempted to require that the petitioner supply information to assist in fixing the date of manifestation of disease. The petitioner is now required to set forth the names and addresses of any and all persons or institutions at which the petitioner underwent a chest x-ray and dates of such x-rays.
In an effort to assist respondents in their burden of establishing prior functional credits, the petitioner is now obligated to provide information concerning pre-existing conditions. The petitioner must indicate whether an occupational exposure was aggravated, accelerated or exacerbated by a pre-existing medical condition, and identify the nature of the condition, the date and the nature of any medical treatment, as well as the identity of all providers by name and address.
Tobacco Litigation
Consistent with the emerging area of tobacco litigation and the future ramifications of pending litigation as well as potential legislation that may provide for subrogation actions, and to establish prior functional credits, the petitioner is now obligated to provide the respondent with extensive information concerning tobacco usage. This would include the employee's complete smoking history addressing the form of tobacco smoked, the quantity per day and the duration of consumption.
The new discovery approach embodied in the standard form interrogatories is consistent with the evolution of the case law requiring a greater burden of evidence to be presented by both petitioners and respondents in the pursuit of occupational disease claims before the New Jersey Division of Workers' Compensation. While the discovery now required obligates the parties to extensive investigation, the result will be a more expeditious and efficient system and one which will probably open the doors to additional third party claims and recovery from emerging causes of action.