ADJ14238444 · November 23, 2021

The Appeals Board found that the quashing of the deposition subpoenas would cause significant prejudice or irreparable harm to the defendant and that reconsideration would not be an adequate remedy, thus removal was warranted.

From the decision · page 2DISCUSSION Removal 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); Cortez, supra; Kleemann, supra.) Additionally, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner

Dr. Wells is the applicant's primary treating physician and podiatrist who treated the applicant's ankles and feet relevant to the injury claim.

Favours Defendant prevailed

The testimony of Dr. Wells is relevant and necessary for determining causation and other issues related to the injury claim, thus quashing the deposition subpoena would cause significant prejudice to the defendant.

From the decision · page 2Dr. Wells' deposition is needed in order to determine whether applicant's injury is a result of her work for the employer. Dr. Wells is the applicant's primary treating physician and a podiatrist.

Labor Code Section 4062.31

Labor Code Section 4062.31 allows parties to provide QME with records from treating physicians and relevant medical and nonmedical records.

The Appeals Board referenced this statute in the context of discovery and admissibility of medical evidence relevant to the injury claim.

From the decision · page 3an adequate remedy, and that therefore, we will rescind them. Labor Code Section 4062.31 provides in relevant part, as follows:

Cal. Code Reg., tit. 8, 10414(d)

A moving party must make a genuine, good faith effort to resolve disputes before seeking Appeals Board intervention via declaration of readiness to proceed.

The Appeals Board reminded parties of this requirement in the context of discovery disputes and the petition for removal.

From the decision · page 5We remind the parties that informal resolution of these disputes helps to progress matters in an expeditious fashion and avoid involving the Appeals Board in disputes the parties are capable of resolving without judicial intervention. A moving party is obligated to swear under penalty of perjury that it made "a genuine, good faith effort to resolve [a] dispute" before seeking intervention from the Appeals Board through a declaration of readiness to proceed. (Cal. Code Reg., tit. 8, § 10414(d).) (Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803, 1814 (Appeals Board en banc).)

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 not an adequate remedy.

The Appeals Board applied this standard to determine that the quashing of deposition subpoenas would cause significant prejudice or irreparable harm to defendant and that reconsideration would not be adequate, thus granting removal.

From the decision · page 2DISCUSSION Removal 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); Cortez, supra; Kleemann, supra.) Additionally, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner

Testimony of Dr. Wells regarding treatment of applicant's ankles and feet relevant to injury claim

From the decision · page 5(1995) 33 Cal.App.4th 1838, 1843.) Here, defendant seeks to depose a physician who treated applicant for the claimed injury. The testimony of Dr. Wells certainly falls under this broad discovery standard as he would be testifying regarding his treatment of applicant's ankles and feet, which may be related to her injury. Discovery is ascertaining facts previously unknown.3 The point of discovery is not whether the testimony elicited is admissible or not.4 We do not know what Dr. Wells will testify to, but would likely testify regarding relevant issues beyond causation including apportionment and permanent disability. The testimony sought at the deposition is therefore reasonable because it furthers the Board's goal of obtaining substantial evidence.