ADJ14238444 — California WCAB decision

What the panel ordered

Petition for removal granted; WCJ orders quashing deposition subpoenas of Dr. Wells rescinded; matter returned to WCJ for further proceedings.

Defendant petitioned for removal of WCJ orders quashing deposition subpoenas of Dr. Wells; WCJ had quashed the deposition subpoenas; WCJ issued a Report and Recommendation to deny removal; WCAB granted removal, rescinded WCJ orders, and returned matter to WCJ for further proceedings.

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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

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

The rules the panel named

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

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

ADJ14238444 · November 23, 2021

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