Mich. Admin. Code R. 418.91 - Discovery

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to sections 385 and 222(2) of the act, MCL 418.385 and 418.222, and a completed WC-105B, except where the employer is no longer active and there is no representative available to complete the form.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.

(2) Upon finding the willful failure of a party to comply with this rule, the magistrate may exclude evidence or prohibit that party from proceeding under the act.

Notes

Mich. Admin. Code R. 418.91

An obvious error in R 408.91 was corrected at the request of the promulgating agency, pursuant to Section 56 of 1969 PA 306, as amended by 2000 PA 262, MCL 24.256. The rule containing the error was published in Annual Administrative Code Supplement, 2021 AACS. The memorandum requesting the correction was published in Michigan Register, 2022 MR 6.