ADJ10799317 — California WCAB decision

What the panel ordered

Petition for removal granted; WCJ's Discovery Order rescinded; matter returned to trial level for further proceedings.

Defendant City of Pomona petitioned for removal of the WCJ's Discovery Order dated October 26, 2021, which ordered Captain Dennis Cooper to answer proposed deposition questions.

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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.

Jurisdiction / venueDefendant prevailed

The record lacked evidence to support the WCJ's Discovery Order, raising due process concerns and necessitating removal and rescission of the order.

From the decision · page 3Here, we are unable to evaluate the merits of the WCJ's Discovery Order due to the state of the record. The record does not contain any evidence to provide the basis for the WCJ's Order, including applicant's proposed questions for Captain Cooper or the captain's original deposition, and no hearing on applicant's Motion to Compel was held. This raises significant concerns of due process, as neither party has had the opportunity to properly develop the evidentiary record on the issue presented, namely, whether Captain Cooper can be ordered to answer applicant's proposed questions at a deposition. Accordingly, we will grant removal, rescind the WCJ's Discovery Order, and return the matter to the WCJ so that a hearing may be set on applicant's Motion to Compel.

The rules the panel named

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

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473 (Appeals Board en banc)

Decisions must be based on admitted evidence in the record and supported by substantial evidence.

The WCJ's Discovery Order lacked evidentiary basis in the record, violating this standard.

From the decision · page 2DISCUSSION Decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc).) As required by Labor Code section 5313 and explained in Hamilton, "the WCJ is charged with the responsibility of referring to the evidence in the opinion on decision, and of clearly designating the evidence that forms the basis of the decision." (Hamilton, supra, at p. 475.) Additionally, decisions by the WCJ and 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

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 notice, opportunity to call and cross-examine witnesses, and introduce evidence.

Due process concerns arose because the record did not allow evaluation of the merits of the Discovery Order.

From the decision · page 3Moreover, all parties in workers' compensation proceedings retain their 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] (Rucker).) Due process guarantees all parties the right to notice of hearing and a fair hearing. (Ibid.) 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]; Rucker, supra, at pp. 157-158, citing Kaiser Co. v. Industrial Accident Com. (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710 [57 Cal.Comp.Cases 230].)

ADJ10799317 · May 9, 2023

What the panel ordered

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