ADJ10877137 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by Citywide Scanning Service, Inc. was reviewed and denied by the WCAB panel based on the WCJ's report.

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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.

Reconsideration / removalDefendant prevailed

Petitioner's arguments were waived by not raising them at trial and the order quashing subpoenas was proper, barring compensation for the subpoenas.

From the decision · page 5In its Petition for Reconsideration, petitioner argues that the finding that it was not entitled to compensation should be set aside because the subpoenas it issued for applicant's records from East Bay Nephrology Medical Group, Integrated Pain Management Group, West Contra Costa Healthcare District, and East Bay Endoscopy were improperly quashed. In support, it argues that defendant did not have standing to quash the subpoenas, defendant's Petition to Quash was not properly served on all of applicant's attorneys, defendant did not prove the subpoenas were duplicative, and that applicant had a due process right to subpoena these records. I recommend that reconsideration be denied because Petitioner waived these arguments by not explicitly raising them as issues for trial. It is not appropriate to raise them for the first time in a Petition for Reconsideration because it denies defendant the right to due process because defendant cannot produce evidence in response to them. (Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295; Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157- 158; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710.) However, as petitioner did raise these arguments in its response to defendant's Petition for Sanctions, which was denied, I will respond to their arguments.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Petitioner did not raise arguments regarding subpoenas at trial, waiving those arguments for reconsideration.

Favours Defendant prevailed

This procedural waiver barred reconsideration and supported denial of the petition.

From the decision · page 5In its Petition for Reconsideration, petitioner argues that the finding that it was not entitled to compensation should be set aside because the subpoenas it issued for applicant's records from East Bay Nephrology Medical Group, Integrated Pain Management Group, West Contra Costa Healthcare District, and East Bay Endoscopy were improperly quashed. In support, it argues that defendant did not have standing to quash the subpoenas, defendant's Petition to Quash was not properly served on all of applicant's attorneys, defendant did not prove the subpoenas were duplicative, and that applicant had a due process right to subpoena these records. I recommend that reconsideration be denied because Petitioner waived these arguments by not explicitly raising them as issues for trial. It is not appropriate to raise them for the first time in a Petition for Reconsideration because it denies defendant the right to due process because defendant cannot produce evidence in response to them. (Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295; Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157- 158; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710.) However, as petitioner did raise these arguments in its response to defendant's Petition for Sanctions, which was denied, I will respond to their arguments.

Order quashing subpoenas was properly issued based on sufficient grounds and defendant's standing.

Favours Defendant prevailed

This barred petitioner from recovering compensation for the subpoenas and supported denial of the petition.

From the decision · page 5Petitioner also argues that the order quashing denied applicant his due process right to conduct discovery. Preliminarily, Dr. Ellison reviewed and commented upon the other records in his report that predates the subpoena. (Exhibit Q.) Further, defendant's Petition to Quash contained exhibits, which were found to be sufficient grounds for the subpoenas to be quashed. Although he had the right to do so, applicant neither objected to the order quashing nor sought removal of that Order. Rather, applicant cancelled the records from Integrated Pain Management and West Contra Costa Healthcare District. (Exhibits 12 and 14.) This action reflects that applicant did not believe those records were necessary. Moreover, it applicant's duty, not petitioner's to raise arguments regarding whether applicant was being deprived of his right to conduct discovery and whether further discovery was necessary. Similarly, it was applicant's burden to challenge the appropriateness of the order quashing on the basis that the records were not duplicative. Therefore, I continue to find that the Order Quashing these four subpoenas bars petitioner from recovering compensation for the services it performed regarding four subpoenas.

The rules the panel named

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

Defendant, as a party to the case, has standing to file a motion objecting to subpoenas.

Applied to reject petitioner's argument that defendant lacked standing to quash subpoenas.

Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284; Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703

Arguments not raised at trial are waived and cannot be raised for the first time in a Petition for Reconsideration.

Applied to deny reconsideration for arguments not raised at trial.

From the decision · page 5In its Petition for Reconsideration, petitioner argues that the finding that it was not entitled to compensation should be set aside because the subpoenas it issued for applicant's records from East Bay Nephrology Medical Group, Integrated Pain Management Group, West Contra Costa Healthcare District, and East Bay Endoscopy were improperly quashed. In support, it argues that defendant did not have standing to quash the subpoenas, defendant's Petition to Quash was not properly served on all of applicant's attorneys, defendant did not prove the subpoenas were duplicative, and that applicant had a due process right to subpoena these records. I recommend that reconsideration be denied because Petitioner waived these arguments by not explicitly raising them as issues for trial. It is not appropriate to raise them for the first time in a Petition for Reconsideration because it denies defendant the right to due process because defendant cannot produce evidence in response to them. (Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295; Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157- 158; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710.) However, as petitioner did raise these arguments in its response to defendant's Petition for Sanctions, which was denied, I will respond to their arguments.

ADJ10877137 · May 13, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

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