Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, 10955(a)
Removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result and reconsideration is inadequate.
Applied to determine whether to grant removal of the discovery order.
From the decision · page 4Removal 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); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate
that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner
ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).)
Lab. Code, 5313; Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473
WCJ must make and file findings upon all facts involved in the controversy to enable parties and Board to ascertain basis for decision.
Applied to require adequate record and findings for the discovery order.
Cal. Const. art. I, 1
California Constitution provides a right to privacy extending to medical records.
Applied to protect applicant's privacy rights in medical records.
From the decision · page 5The California Constitution provides that, "All people are by nature free and independent
and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring,
possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."
(Cal. Const. art. I, § 1.) California's constitutional right to privacy "extends to...medical records."
(E.g., John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198 [45 Cal. Rptr. 3d 316, 137 P.3d
153] (John B.); see also, e.g., Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 41 [26
Cal. Rptr. 2d 834, 865 P.2d 633] (Hill).)
Evid. Code 990 et seq.; Evid. Code 1010 et seq.
Patient-litigant exception to physician-patient and psychotherapist-patient privileges allows disclosure only of communications relevant to issues in litigation.
Applied to limit disclosure of psychiatric records to relevant issues only.
From the decision · page 5Additionally, a patient enjoys a privilege to refuse to disclose any "confidential
communication" between himself and a treating physician or psychotherapist pursuant to Evidence
Code sections 990 et seq. (physician-patient privilege) and 1010 et seq. (psychotherapist-patient
privilege).1 However, Evidence Code sections 996 and 1016 provide an exception to the general
physician-patient and psychotherapist-patient privileges, the "patient-litigant" exception,
providing in relevant part that "[there] is no privilege...as to a communication relevant to an issue
Britt v. Superior Court (1978) 20 Cal.3d 844
Disclosure can be compelled only with respect to mental conditions disclosed by the patient-litigant in the action; other communications remain privileged.
Applied to limit scope of disclosure of psychiatric records to relevant mental conditions in issue.
From the decision · page 7The court in Britt thus reaffirmed its prior holding in Lifschutz:
Davis v. Superior Court (1992) 7 Cal.App.4th 1008
Filing a personal injury action does not automatically place mental condition in issue; waiver of privacy must be based on specific pleadings.
Applied to require specific pleadings to waive privacy rights for mental conditions.
From the decision · page 7In Davis v. Superior Court (1992) 7 Cal.App.4th 1008 [9 Cal.Rptr.2d 331], the defendant
to a personal injury lawsuit sought plaintiff's medical treatment records "from [the] beginning of
time to date." (Id. at 1012.) In discussing the plaintiff's right of privacy, and specifically whether
plaintiff had waived that right by filing suit, the Court of Appeal concluded that, "the filing of a
personal injury action seeking damages for pain and suffering does not, ipso facto, place mental
condition in issue as part of the claim," and that any waiver must be predicated on "specific
averments or reasonable interpretations drawn from the pleading which clearly place mental
condition in issue." (Id. at 1017, emphasis added.)
Davis v. Superior Court (1992) 7 Cal.App.4th 1008
Scope of waiver of privacy rights by bringing suit must be narrowly construed to avoid undue deterrence from lawsuits.
Applied to protect applicant's privacy rights from overbroad discovery requests.
From the decision · page 8Thus, "in determining whether one has waived the right of privacy by bringing suit, our
Supreme Court has noted that although there may be an implicit partial waiver, the scope of such
waiver must be narrowly, rather than expansively construed, so that plaintiffs will not be unduly
deterred from instituting lawsuits by fear of exposure of private activities." (Davis v. Superior
Court (1992) 7 Cal.App.4th 1008, 1014 [9 Cal.Rptr.2d 331].)