ADJ18164316 · March 9, 2026

The WCJ's finding of 0% permanent disability was challenged due to lack of substantial evidence and procedural due process violations related to discovery closure before Dr. Hardy's deposition. The Appeals Board found that the matter required further development, including admission of Dr. Hardy's deposition transcript, to ensure due process and substantial justice.

From the decision · page 1Applicant seeks reconsideration of the Findings and Award (F&A) issued by the workers' compensation administrative law judge (WCJ) on December 15, 2025, wherein the WCJ found, in relevant part, that applicant, while employed as a correctional deputy trainee, sustained injury arising out of and occurring in the course of employment (AOE/COE) to her right shoulder and big toes; that her injury caused temporary disability for which she has been adequately compensated; that her injury caused 0% permanent disability, entitling applicant to zero weeks of disability; that her permanent and stationary date is August 20, 2024; and, that she will require further medical treatment.

Applicant's objection to Dr. Hardy's medical determination and request to keep discovery open for his deposition.

Favours Applicant prevailed

This objection and request demonstrated that the record was not fully developed and that due process required admission of the deposition transcript.

From the decision · page 10Applicant's lack of intention to waive her objection is further demonstrated by the subsequent statements by her hearing representative that Dr. Hardy's deposition was pending, and by applicant's requests for discovery to remain open until the December 2025 deposition was complete. (8/20/25 PTCS at pp. 2-3; 8/21/25 MOH; 10/6/25 Minutes of Hearing and Summary of Evidence at pp. 2-3.) We emphasize that the parties stipulated on the PTCS that Dr. Hardy's deposition was set for December 16, 2025. We conclude that applicant did not waive her objection to the matter proceeding to an MSC. (Cal. Code Regs., tit. 8, § 10744(d).)

The WCJ denied applicant's petition for remote hearing without holding a hearing to create a record, violating due process.

Favours Applicant prevailed

This procedural error required reconsideration and further proceedings to ensure due process rights were protected.

From the decision · page 8In Chicago Dogs, we held that a hearing must take place when a WCJ denies a request for a virtual appearance in order to create a record and in keeping with due process. (Id. at p. 840.) We further held that the due process right to a hearing is good cause to appear remotely. (Ibid.) Despite what we believe to be clear direction, the WCJ failed to hold such a hearing, and instead denied the petition outright.

Dr. Hardy's deposition was scheduled and completed after the WCJ's decision but before the Appeals Board's decision.

Favours Applicant prevailed

Admission of this deposition transcript was necessary for a fully developed record and substantial justice.

From the decision · page 11Nevertheless, on due process grounds, we rescind the decision and return the matter to the WCJ to allow the transcript of Dr. Hardy's December 16, 2025 deposition to be admitted into evidence and considered by the WCJ, and for the WCJ to determine if further discovery is needed. As Dr. Hardy's deposition is already completed, we observe that no significant delay will occur in these proceedings as a result of our determination that this matter should be returned to the trial court for the deposition transcript to be entered into evidence and considered by the WCJ.

Diagnosed right shoulder strain, mild rotator cuff tendonitis, bilateral big toe contusions; found 0% whole person impairment and permanent and stationary as of August 20, 2024; no work restrictions; recommended physical therapy and possible follow-up if exacerbations occur.

The WCJ relied on Dr. Hardy's reports as substantial evidence for 0% permanent disability and no work restrictions.

From the decision · page 2BACKGROUND Applicant filed an Application for Adjudication of Claim (Application) on August 31, 2023, claiming a specific injury on July 18, 2023 to her right shoulder and toes of both feet, while employed as a correctional deputy trainee by defendant. Applicant's injury was admitted by defendant and pursuant to the County of Riverside alternative dispute program, the parties proceeded to an Independent Medical Evaluation (IME) with Scott Hardy, M.D., M.P.H. Dr. Hardy issued his first report after examining applicant on August 20, 2024; in it, he diagnosed applicant with history of right shoulder strain, mild rotator cuff tendonitis involving the infraspinatus, and bilateral big toe contusions with nail avulsions by history, healed. (Defendant's Exh. B, at pp. 14-15.) He concluded that "there is a 0% whole person impairment for...the right shoulder or toes" and that she was permanent and stationary as of August 20, 2024. (Id. at p. 15.) He found that applicant's injuries were "attributed entirely" to her "brief involvement" with the Sheriff's Academy, and that, since there is no permanent impairment, apportionment is not applicable. (Ibid.) Dr.

Perez v. Chicago Dogs (2025) 90 Cal.Comp.Cases 830

Due process requires a hearing when denying a request for remote appearance to create a record and allow cross-examination testimony.

The WCJ's denial of applicant's petition for remote hearing without a hearing violated due process, requiring reconsideration and further proceedings.

From the decision · page 8In Chicago Dogs, we held that a hearing must take place when a WCJ denies a request for a virtual appearance in order to create a record and in keeping with due process. (Id. at p. 840.) We further held that the due process right to a hearing is good cause to appear remotely. (Ibid.) Despite what we believe to be clear direction, the WCJ failed to hold such a hearing, and instead denied the petition outright.

McDuffie v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117

The Appeals Board has discretionary authority to develop the record when medical evidence is not substantial or to provide due process.

The Appeals Board must allow further discovery and admission of Dr. Hardy's deposition transcript to ensure substantial justice and due process.

Applicant's testimony that she has residual discomfort but can perform job duties, consistent with Dr. Hardy's reports

From the decision · page 5that she "has some residual discomfort" but that "her testimony was not inconsistent with the

Extensive and thorough reports of Dr. Hardy deemed substantial evidence by WCJ

From the decision · page 5After considering the documentary and testamentary evidence presented to the Court, it does not appear that there is any additional information needed and that the reports are comprehensive in nature and are substantial evidence in this matter.

Applicant's repeated requests to keep discovery open for Dr. Hardy's deposition

From the decision · page 10Applicant's lack of intention to waive her objection is further demonstrated by the subsequent statements by her hearing representative that Dr. Hardy's deposition was pending, and by applicant's requests for discovery to remain open until the December 2025 deposition was complete. (8/20/25 PTCS at pp. 2-3; 8/21/25 MOH; 10/6/25 Minutes of Hearing and Summary of Evidence at pp. 2-3.) We emphasize that the parties stipulated on the PTCS that Dr. Hardy's deposition was set for December 16, 2025. We conclude that applicant did not waive her objection to the matter proceeding to an MSC. (Cal. Code Regs., tit. 8, § 10744(d).)