Use this button to switch between dark and light mode.

California: Appeals Board Panel Clarifies Scope and Intent of Labor Code § 4663(d) Disclosure Requirement

May 29, 2024 (7 min read)

Appeals Board panel revisits Hardesty

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board

One of the first lessons learned by practitioners new to the field of workers’ compensation law is that proceedings before the Workers’ Compensation Appeals Board (WCAB) are governed by specific provisions of the Labor Code and the Rules of Practice and Procedure adopted by the WCAB pursuant to Lab. Code, § 5307, and not by the Code of Civil Procedure. This is especially true when it comes to discovery. Lab. Code, § 5710 authorizes depositions. Subpoenas and Subpoenas Duces Tecum are authorized by Rules 10640, 10644 (electronic records), and 10655 (medical information requested by non-party lien claimant). Likewise, Rule 10642 allows a Notice to Produce or Appear in accordance with Code of Civ. Pro., § 1987. Rule 10660 enables a party to examine X-rays in the possession of the adverse party, and Rule 10635(c) requires parties to serve each other timely with any medical reports received. Interrogatories, however, are not authorized by either the Labor Code or the WCAB’s Rules. But what about a Petition to Compel the release of detailed medical information under Lab. Code, § 4663(d)? Is that statute an open-ended form of discovery before the WCAB or does it have limitations? An Appeals Board panel addressed that question in Reveles v. State of California, Sierra Conservation Center (April 15, 2024, ADJ16783231).

The Facts

As relevant to this discussion, Jennifer Reveles (applicant) sustained an industrial injury and received benefits. During adjustment of the claim, defendant sent medical releases to applicant, which she declined to sign. Defendant then filed a Petition for Order to Compel applicant to sign and return medical release forms. The petition also requested that if applicant failed to promptly sign and return the medical releases, her entitlement to benefits be suspended.

The discovery dispute between the parties was not amicably resolved, and the dispute proceeded to trial. The minutes of hearing reflect that the only issues presented were defendant’s Petition for Order to Compel applicant to sign and return medical releases and whether defendant would be required to depose applicant if further information not contained in the medical releases should be required.

Following the trial the WCJ issued a Finding and Orders (F&O) that contained two orders. Order A required applicant to list all medical treatment received in the past 10 years to the neck, bilateral upper extremities, and both wrists. Order B stated that if defendant required additional information from applicant, it should obtain that information by deposition. The WCJ’s Opinion on Decision cited Lab. Code, § 4663(d) as the rationale for Order A and Lab. Code, § 5708 as the basis for Order B.

Applicant sought removal of the F&O, contending that the order to disclose written medical information (Order A) is not authorized by Lab. Code, § 4663(d) and is the functional equivalent of an order compelling applicant to respond to written interrogatories.

The Panel’s Decision

The panel’s opinion begins with recognition of the extraordinary nature of the removal remedy and the high bar that must be shown to cause it to remove a matter to itself: substantial prejudice, irreparable harm, and the likelihood that reconsideration at a later date will not provide an adequate remedy.

Next, it turns to the heart of applicant’s argument: that the F&O not only exceeds the disclosure specifically required by Lab. Code, § 4663(d), but also that its scope is burdensome and oppressive because it requires her to detail all medical treatment received in the past 10 years, including doctors, facilities, addresses, locations, parts of body treated, types of treatment, and the approximate date of each treatment. Applicant characterized the F&O as the functional equivalent of an order compelling her to answer written interrogatories. Applicant supports her arguments by reference to a panel decision in Lubin v. Berkeley East Convalescent Hospital (1976) 41 Cal. Comp. Cases 283 (Board panel decision). In Lubin, another panel observed that written interrogatories are not provided as a discovery mechanism in workers’ compensation cases by either statute or rule, may not be enforceable, and are limited to those rare circumstances when they are the only practical and feasible method of obtaining discovery. In reaching this holding, the Lubin panel cited Hardesty v. McCord & Holdren (1976) 41 Cal. Comp. Cases 111 (Board panel decision) in which another panel acknowledged that wholesale adoption of the civil discovery provisions within California’s Code of Civil Procedure would be inconsistent with the Constitutional mandate that our workers’ compensation system accomplish substantial justice in all cases expeditiously, inexpensively and without encumbrance of any character.

The panel then examines the precise wording of Lab. Code, § 4663(d). That subsection states, “An employee who claims an industrial injury shall, upon request, disclose all previous disabilities or physical impairments.” It observes that the subsection contemplates disclosure of previous disabilities and physical impairments but does not require an employee to disclose all prior medical treatment. On this issue, the panel agrees that Order A of the F&O does not comport with Lab. Code, § 4663(d).

The panel also notes that defendant’s Petition for Order to Compel Applicant to Sign and Return Medical Releases relied on Lab. Code, § 4663(d) as the statutory basis for its request, but failed to explain how compelling applicant’s authorization to disclose “an unlimited medical treatment history” is consistent with that subsection’s requirement for disclosure of disability or impairment.

In its conclusory remarks, the panel observes that irrespective of the limited scope of Lab. Code, § 4663(d), WCJ’s have broad discretion in resolving discovery disputes. It points out that its holding in Hardesty recognized that in most instances, the specific provisions of the Labor Code and its rules relating to discovery will provide adequate tools for practitioners to develop their respective cases. However, in those rare instances in which those provisions are inadequate, the WCJ should exercise their authority under Rule 10330 (Cal. Code Regs., tit, 8, § 10330) and issue discovery orders as may be required to insure the full, fair, and expeditious adjudication of the case and avoid unfair surprise.

In its application of the Hardesty holding to this case, the panel finds that a defendant seeking to compel discovery in the form of written disclosure of prior medical treatment must establish why the specific discovery provisions of the Labor Code and the WCAB’s Rules are inadequate. In this case, defendant failed to explain its need for written discovery or offer evidence of unsuccessful discovery attempts that require a more burdensome discovery mechanism. Moreover, defendant’s Petition for Order to Compel was not supported by Lab. Code, § 4663(d).

The panel granted removal, rescinded the F&O, substituted a new order denying the petition to compel, and returned the case to the trial level with the suggestion that the parties meet and confer and craft a discovery agreement that includes the possible disclosure under Lab. Code, § 4663(d) of previous permanent disabilities or physical Impairments.

The Significance of Reveles

The panel’s opinion is instructive. Lab. Code, § 4663(d) means what it says. Simply put, an employee who claims an industrial injury is required upon request to disclose all prior permanent disabilities or physical impairments. Beyond that specific requirement, the subsection cannot be used as a vehicle to obtain a written record of an employee’s prior medical history.

Interestingly, the panel’s holding in Reveles is consistent with another panel’s holding in an opinion that issued nearly seven years ago in Nadey v. Pleasant Valley State Prison, 2017 Cal. Wrk. Comp. P.D. LEXIS 446 (Appeals Board noteworthy panel decision). In Nadey, defendant requested that applicant disclose all prior permanent disabilities and physical impairments pursuant to Lab. Code, § 4663(d). It also requested that applicant list all medical treatment received over the past 10 years and sign releases to enable defendant to obtain medical treatment records. Applicant did not comply with either request, so defendant filed a motion to compel applicant’s compliance with both. The WCJ summarily denied the motion to compel, with a notation stating that defendant had other avenues of discovery available to it. Defendant sought removal of the order denying its motion to compel. In its order granting removal and decision after removal, the Nadey panel observed that the language of Lab. Code, § 4663(d) clearly and unequivocally requires an employee to disclose all prior permanent disabilities and physical impairments upon request. However, like the Reveles panel, the Nadey panel declined to compel disclosure of applicant’s past medical treatment over a 10-year period on the basis that Lab. Code, § 4633(d) is limited in scope to disclosure of prior permanent disabilities and physical impairments.


Lab. Code § 4663(d) has a limited scope. Practitioners can freely use it to obtain information on an injured workers’ prior permanent disabilities and physical impairments. It was not intended for, nor should it be used as a discovery vehicle to obtain information beyond its clearly stated purpose.

Reminder: Board panel decisions are not binding precedent.

© Copyright 2024 LexisNexis. All rights reserved.