ADJ10675931 — California WCAB decision

ADJ10675931 · June 18, 2025

The WCAB granted the petition for removal, rescinded the WCJ's December 7, 2023 decision, and substituted findings allowing defendant to submit the sub rosa video to the QME and admitting the May 23, 2023 PTP report into evidence.

Issues decided

Medical opinions weighed

Authorities named

District office

Fresno

What the panel ordered

Defendant petitioned for removal of the WCJ's December 7, 2023 Findings of Fact and Orders, which prohibited defendant from submitting sub rosa video to the QME and excluded the May 23, 2023 PTP report from evidence.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Medical treatment / UR / IMRDefendant prevailed

Since the defendant complied with the procedure for submitting sub rosa video to the QME, the WCAB found no basis to exclude the PTP's report and admitted it into evidence.

From the decision · page 6the QME as a result, we discern no basis upon which to exclude the PTP's reporting following review of the same evidence. Accordingly, and in addition to the substituted findings of fact discussed above, we will further substitute an order admitting the May 23, 2023 report of PTP into evidence.

Medical treatment / UR / IMR

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Defendant complied with Labor Code section 4062.3 and AD Rule 35 in submitting sub rosa video to QME after providing notice and opportunity for objection.

Favours Defendant prevailed

This compliance removed statutory or regulatory barriers to submission of the video, supporting granting the petition for removal and allowing submission to QME.

From the decision · page 3Defendant's Petition acknowledges that it obtained multiple dates of surveillance videos and that "[t]he video obtained in 2017 and 2021 was not previously disclosed to any party, partly because the deposition of the applicant had been scheduled, re-scheduled, continued several times, but never actually took place." (Petition, at p. 3:5.) Defendant contends the WCJ's order disallowing submission of the surveillance videos to the QME is prejudicial because defendant has complied with the applicable statutes regarding submission of information to the QME. Defendant acknowledges that "[t]here is no real dispute here that the surveillance videos in question would have constituted information and had to be sent to the applicant's attorney 20 days prior to being sent to Dr. Oehlschlaeger... [w]hen applicant's attorney timely objected, the only way the videos could be sent to the PQME would be by order of the court." (Petition, at p. 7:15.) Defendant thus contends it has complied with the provisions of Labor Code section 4062.3 and Administrative Direct (AD) Rule 35 (Cal. Code Regs., tit. 8, § 35) and should be allowed to send the subject videos to Dr. Oehlschlaeger for his review.

Applicant's counsel timely objected to submission of surveillance video to QME, triggering dispute resolution process before WCJ.

Favours Applicant prevailed

This procedural step ensured the issue was properly framed and adjudicated, supporting the WCAB's review and decision.

From the decision · page 2On April 18, 2023, applicant's counsel objected to the submission of surveillance video to the QME. (Ex. 1, Letter to Defendant, dated April 18, 2023.)

No statutory or regulatory authority precluded submission of sub rosa video to PTP or admission of PTP's report reviewing such video.

Favours Defendant prevailed

This absence of prohibition supported admitting the PTP's report into evidence after the removal decision.

From the decision · page 5Applicant further objects to the admissibility of the May 23, 2023 report of PTP Dr. Azevedo, M.D., in which the physician reviewed sub rosa video prior to defendant serving the video on applicant. (Ex. C, report, Michael Azevedo, M.D., dated May 23, 2023.) The WCJ's Report observed that "[t]he reports from treating physicians... are regularly sent to QMEs for completion of the record," and that "[i]n this case, however, having excluded the videos from review by QME, and considering that Dr. Azevedo acknowledges review of such video, providing the QME with the report of Dr. Azevedo would result in an end-around the order precluding the QME from reviewing the video." (Report, at pp. 3-4.) While section 4062.3 and AD Rule 35 specify rules for submission of information to a QME, applicant cites to no statutory or regulatory authority that would otherwise preclude the submission of sub rosa video evidence to a PTP. We share the WCJ's concerns regarding the potential for creating an "an unfair playing field," and stress that the WCJ is entrusted with the authority to "safeguard against unfair surprise." (Report, at p. 3; Hardesty, supra, 41 Cal.Comp.Cases at p. 114.) Accordingly, and pursuant to WCAB Rule 10421 (Cal. Code Regs., tit.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Cal. Code Regs., tit. 8, 10955(a); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274

Removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result if not granted, and reconsideration is inadequate.

Applied to determine whether to grant defendant's petition for removal of WCJ decision.

From the decision · page 2Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).)

Sub rosa video is "information" under Labor Code section 4062.3(a)(2) and may be submitted to QME following notice and dispute resolution protocols.

Applied to determine permissibility of submitting sub rosa video to QME.

Allison v. Workers' Comp. Appeals Bd. (1999) 72 Cal.App.4th 654; Hardesty v. Mccord & Holdren (1976) 41 Cal.Comp.Cases 111

WCJ has authority to decide discovery disputes and issue interlocutory orders to ensure fair adjudication and prevent unfair surprise.

Applied to support WCJ's authority over discovery and evidence submission issues.

From the decision · page 4It is also well-established that "WCJ's have authority to decide discovery disputes." (Allison v. Workers' Comp. Appeals Bd. (1999) 72 Cal.App.4th 654, 662 [84 Cal.Rptr.2d 915, 64 Cal.Comp.Cases 624].) In the event that the statutory provisions of the Labor Code are not adequate or convenient, "on appropriate motion and on appropriate showing of good cause, the trial judge has, and should exercise the authority conferred on him by [10330] of our rules to issue such interlocutory orders relating to discovery as he determines are necessary to insure the full and fair adjudication of the matter before him, to expedite litigation and to safeguard against unfair surprise." (Hardesty v. Mccord & Holdren (1976) 41 Cal.Comp.Cases 111, 114 [1976 Cal. Wrk. Comp. LEXIS 2406].)

WCAB Rule 10421; Labor Code section 5813

WCJ may impose sanctions for bad faith tactics including failure to timely serve documents and noncompliance with WCAB rules and orders.

Applied in context of excluding evidence and sanctioning bad faith conduct.

From the decision · page 58, § 10421) and section 5813, the WCJ has the discretion to levy sanctions on parties who engage in bad faith tactics. "Bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay include actions or tactics that result from a willful failure to comply with a statutory or regulatory obligation, that result from a willful intent to disrupt or delay the proceedings of the Workers' Compensation Appeals Board, or that are done for an improper motive or are indisputably without merit." (Cal. Code Regs., tit. 8, § 10421(b).) Such actions include a "[f]ailure to timely serve documents (including but not limited to medical reports and medical-legal reports)," and "[f]ailing to comply with the Workers' Compensation Appeals Board's Rules of Practice and Procedure, with the regulations of the Administrative Director, or with any award or order of the Workers' Compensation Appeals Board, including an order of discovery...." (Cal. Code Regs., tit. 8, § 10421(b)(3)-(4).)

ADJ10675931 · June 18, 2025

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