Not Ready for a Workers’ Comp Trial: Document the Discovery Still Needed

When a workers’ compensation case moves toward trial, “we need more discovery” is rarely the most useful explanation. Identify the evidence, why it matters, what has already been done to obtain it, and a realistic next step. A request tied to the disputed issue gives the judge a record to evaluate; an open-ended request for delay does not.

Start with the issue the judge will decide

A priority conference involving an injury arising out of and in the course of employment is governed by Labor Code section 5502(c). The statute calls for trial when discovery is complete or the judge determines that the parties have had sufficient time to complete reasonable discovery. It also permits continuing status conferences. The inquiry is therefore about both readiness and reasonable opportunity.

Separate evidence necessary to resolve industrial causation from material that is merely interesting. In an occupational-disease claim, a medical evaluator may need workplace-exposure information before giving a supported opinion. Identify which employer records or witness accounts are missing and the medical question they would help answer. Do not assume an unfinished request necessarily prevents trial.

Build a dated account of diligence

List when the application was filed, when the proper parties were identified, when medical evaluation was requested, and what responses were received. Attach the relevant requests and replies. If insurer identity changed, show how that affected the next procedural step rather than presenting the change as an unexplained excuse.

The WCAB’s decision in Payan, ADJ14231186 (Aug. 12, 2021), illustrates the point. The applicant needed discovery concerning an alleged workplace COVID-19 infection and death. The initially named insurer was dismissed, and the correct insurer entered the case later. The Board considered it reasonable for applicant’s counsel to wait to request a qualified medical evaluation until the proper defendant had been identified.

Explain the connection between records and medical opinion

The panel also recognized that a QME likely would need information about workplace exposures or outbreaks. The missing employer evidence and the medical evaluation were connected. The case was returned for regular status conferences while discovery proceeded. The decision did not award death benefits or establish that the infection came from work.

Consider a hypothetical claim where a requested exposure log is necessary for an evaluator to distinguish workplace and nonwork risks. A useful submission identifies the log, its custodian, the request dates, the follow-up efforts, and why the evaluator needs it. It also identifies what can proceed while the record is being obtained. That is more informative than asking to keep all discovery open indefinitely.

Ask for a defined procedural response

A proposed next step could include a status conference, a schedule for identified evidence, or an opportunity to complete a necessary evaluation. The correct request depends on the current posture. Under Rule 10748, continuances are disfavored and require a clear showing of good cause. Payan is not a general exemption from that rule or permission to postpone necessary work.

Preserve the minutes or order, objections made, discovery correspondence, and any explanation of prejudice. A challenge to an interlocutory trial-setting decision involves a different procedural analysis from review of a final award. Counsel should evaluate the actual order and available remedy. The strongest preparation is a clear record showing what remains unfinished and why a fair decision requires it.

A readiness checklist for families pursuing an injury or death claim

A request for more time should also show what can be completed promptly. The point is to make the remaining work manageable and relevant, not to postpone a decision indefinitely. A family pursuing a death claim should also confirm who is identified as the applicant and whose interests counsel represents; Payan expressly flagged that issue.

1. Identify the disputed causation question and each missing source of evidence needed to answer it. Keep workplace records separate from the evaluator’s eventual medical opinion.
2. List request dates, responses, reminders, and any obstruction or changed party information. Preserve documents that explain why an earlier request was not reasonably available.
3. Ask the evaluator what factual materials are needed, through the proper medical-legal process. Do not substitute an unsupported lay conclusion about causation for the medical assessment.
4. Propose a defined sequence for obtaining records and completing evaluation, with a status conference where appropriate. Explain the concrete prejudice of deciding the case without that evidence.

Questions about this issue

Does any missing report justify a continuance?

No. Explain its relevance, the diligence used to obtain it, and why the available time was insufficient. Good cause remains necessary.

Was Payan a benefits award?

No. The panel rescinded the trial-setting and discovery-closure order and returned the matter for further proceedings.

Can the historical COVID presumption be assumed to apply today?

No. Payan discussed a statute applicable to its historical facts. Any presumption requires separate review of the governing law and injury dates.

For the decision’s procedural reasoning, see our related Case Library analysis.