What the panel treated as outcome-determinative, and which side it favoured.
Applicant sustained an admitted injury on April 19, 2019, arising out of and in the course of employment.
Favours Applicant prevailed
This finding establishes the threshold issue of compensability, making the F&A a final order subject to reconsideration.
From the decision · page 2The WCJ's Report provides the following relevant factual background:
The Applicant sustained an admitted injury on April 19, 2019 as a result of a fall.
On July 25, 2022, a Utilization Review (UR) signed by Dr. Pitino issued, denying
a request for authorization from [applicant's primary treating physician].
Applicant's counsel attempted to set the deposition of Dr. Pitino and initially
contended that they did not know what items the doctor reviewed, if she understood
the nature and extent of the applicant's injuries and if she signed the utilization
review. A trial was held on these issues and it was found that the Applicant was not
entitled to conduct the deposition as to the dispute regarding the review
itself....Applicant subsequently filed a Petition for Penalties [on] May 12, 2023
asserting that Defendants were circumventing the Utilization Review process as
they disputed that the Utilization Review was signed by a doctor. Applicant re-set
the deposition of Dr. Pitino.... Applicant also set the deposition of the person most
knowledgeable for Ericsson in regards to wage information.
The WCJ found good cause to allow the deposition of the PMK regarding earnings and earning capacity as relevant to the applicant's disability rate.
Favours Applicant prevailed
This supported allowing the deposition, which the WCAB affirmed, impacting the discovery process relevant to disability determination.
From the decision · page 4As to the issue if there is good cause for the Applicant to conduct the deposition of
the person most knowledgeable (PMK) for Ericsson as to earnings and earnings
capacity, it is found that there is good cause and that Applicant is entitled to conduct
the deposition. The Applicant's earnings potential/capacity may be relevant to the
issue of the applicant's disability rate.
There was no legal basis to depose Dr. Pitino to validate whether she performed the utilization review, as disputes over UR decisions must be resolved by IMR.
Favours Defendant prevailed
This led to rescinding the deposition permission for Dr. Pitino, limiting discovery on the UR issue.
From the decision · page 6Based on the foregoing, we conclude that there was no legal basis for applicant to depose
Dr. Pitino to validate whether she performed the UR. We will therefore grant reconsideration on
this issue and rescind the portion of the F&A finding that good cause existed to allow applicant to
depose Dr. Pitino on this topic.
Defendant failed to demonstrate substantial prejudice or irreparable harm from allowing the depositions.
Favours Applicant prevailed
This justified denying the extraordinary remedy of removal and allowing the depositions to proceed as ordered.
From the decision · page 5We again emphasize that removal is an extraordinary remedy that will only be granted if
the petitioning party shows that substantial prejudice and irreparable harm will result if removal is
not granted. (Cortez, supra, 136 Cal.App.4th 596; Cal. Code Regs., tit. 8, § 10955.) Here, we
conclude that defendant failed to demonstrate that substantial prejudice or irreparable harm would
result if applicant deposes the PMK at Ericsson regarding applicant's earnings and earning
capacity. Therefore, we will not exercise our discretion to grant defendant the extraordinary
remedy of removal on this issue.