ADJ11315552 · December 11, 2024

The WCAB found that the WCJ's order denying the petition to quash was issued without a proper record or hearing, violating due process rights and lacking substantial evidence support, thus warranting removal and rescission of the order.

From the decision · page 1Defendant seeks removal in response to an Order issued by the workers' compensation administrative law judge (WCJ) at a Status Conference (Conference) on January 25, 2024. At the Conference, the WCJ issued an Order denying defendant's petition to quash the deposition of the former claims examiner on applicant's case, as well as an Order allowing defendant to depose applicant's treating physician, with the condition that the physician's deposition be set in front of the WCJ.

The WCJ issued the order denying defendant's petition to quash deposition without a hearing or record, violating due process rights.

Favours Defendant prevailed

This lack of a proper hearing record and evidence led the WCAB to find substantial prejudice and grant removal.

From the decision · page 4While this ultimately may be correct, no evidence was offered, identified, or admitted at the hearing. While a WCJ may submit an issue for decision at a conference hearing, the preferred method would be to set the matter for a noticed hearing, after laying out the specific issues, exhibits, and evidence or testimony prepared at a Mandatory Settlement Conference (MSC) in accordance with WCAB Rule 10759.

From the decision · page 2On November 17, 2023, applicant filed a motion to quash and/or motion for a protective order in response to the defendant's noticed motion of the deposition of applicant's treating physician, Thomas Schweller, M.D., set for November 30, 2023 by video or teleconference.

Cal. Code Regs., tit. 8, 10955(a)

Removal is an extraordinary remedy granted only if petitioner shows substantial prejudice or irreparable harm and that reconsideration is inadequate.

Applied to determine whether removal was warranted due to due process concerns in discovery order.

From the decision · page 3Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (Cortez) (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (Kleemann) (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).)

Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151

Parties have a fundamental right to due process and a fair hearing including opportunity to call and cross-examine witnesses and present evidence.

Applied to assess due process rights in the discovery dispute.

From the decision · page 3Parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) A fair hearing is "one of `the rudiments of fair play' assured to every litigant...." (Id. at p. 158.) As stated by the Supreme Court of California in Carstens v. Pillsbury (1916) 172 Cal. 572, "the commission...must find facts and declare and enforce rights and liabilities, - in short, it acts as a court, and it must observe the mandate of the constitution of the United States that this cannot be done except after due process of law." (Id. at p. 577.) A fair hearing includes, but is not limited to, the opportunity to call and cross-examine witnesses; introduce and inspect exhibits; and to offer evidence in rebuttal. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584].)

Lab. Code, 5903, 5952(d); Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473

Decisions must be supported by substantial evidence and an adequate record must be made to understand the basis of the WCJ's decision.

Applied to find the WCJ's order lacked substantial evidence and an adequate record.

From the decision · page 4Decisions of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) An adequate and complete record is necessary to understand the basis for

Lack of a proper hearing record and evidence at the status conference where the WCJ issued the order denying the petition to quash deposition.

From the decision · page 4While this ultimately may be correct, no evidence was offered, identified, or admitted at the hearing. While a WCJ may submit an issue for decision at a conference hearing, the preferred method would be to set the matter for a noticed hearing, after laying out the specific issues, exhibits, and evidence or testimony prepared at a Mandatory Settlement Conference (MSC) in accordance with WCAB Rule 10759.