ADJ16251404 · September 5, 2025

The WCJ did not err because the applicant did not plead a psychiatric injury and thus did not waive her right to privacy regarding psychiatric history; defendant failed to show significant prejudice or irreparable harm to justify removal; discovery related to headaches may proceed separately.

From the decision · page 5The dispute here is whether the WCJ erred in finding applicant was not required to answer psychologically related questions. For the reasons detailed below, we conclude that in this case, the WCJ did not err because an allegation of headaches does not constitute a waiver of medical privacy regarding psychiatric care history.

Applicant did not plead injury to psyche and did not waive right to privacy regarding psychiatric history.

Favours Applicant prevailed

This meant defendant had no basis to compel answers to psychological questions, supporting denial of removal petition.

From the decision · page 7Here, applicant did not allege psychiatric injury in her application for adjudication, and she has repeatedly emphasized she is not claiming an industrial psychiatric injury. (Def. Exh. A, p. 22, lines 17-21; Def. Exh. E, pp. 63-64; Def. Exh. F, pp. 87, 91-92, 94-96, 111-114.) Thus, because at this time, there is no potential compensable injury to applicant's psyche for which defendant may

Defendant failed to demonstrate significant prejudice or irreparable harm from denial of removal.

Favours Defendant prevailed

Without such a showing, removal is not justified and reconsideration is an adequate remedy.

From the decision · page 8In this case, defendant fails to demonstrate the requisite significant prejudice or irreparable harm to justify removal because defendant has other avenues for discovery, including development of the record as to applicant's claimed injury in the form of headaches, which may or may not yield evidence of a nexus between headaches and psyche.

Evid. Code, 996(a), 1016(a)

Patient-litigant exception to physician-patient and psychotherapist-patient privileges applies only if the patient has tendered the condition in issue.

Applicant did not tender psychiatric condition as an issue, so privileges were not waived.

From the decision · page 5Additionally, a patient enjoys a privilege to refuse to disclose any "confidential communication" between themself and a treating physician or psychotherapist pursuant to Evidence Code sections 990 et seq. (physician-patient privilege) and 1010 et seq. (psychotherapist- patient privilege).2 However, Evidence Code sections 996 and 1016 provide an exception to the general physician-patient and psychotherapist-patient privileges, the "patient-litigant" exception,

Lab. Code, 5909

Petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board.

The case was transmitted on July 11, 2025, and the decision was issued on September 5, 2025, within the 60-day period.

From the decision · page 2Former Labor Code section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that:

Cal. Code Regs., tit. 8, 10955(a)

Removal is an extraordinary remedy granted only if significant prejudice or irreparable harm will result if removal is not granted.

Defendant failed to show significant prejudice or irreparable harm to justify removal.

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 significant prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit.

Cal. Const. art. I, 1

California constitutional right to privacy extends to medical records.

Applicant's right to privacy regarding psychiatric history was upheld as no psychiatric injury was pled.

From the decision · page 5Notwithstanding the filing of a claim for workers' compensation benefits, applicants maintain a right to privacy. The 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; see also, e.g., Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 41.)

Applicant repeatedly emphasized no psyche claim was pled and did not waive privacy rights regarding psychiatric history.

From the decision · page 7Here, applicant did not allege psychiatric injury in her application for adjudication, and she has repeatedly emphasized she is not claiming an industrial psychiatric injury. (Def. Exh. A, p. 22, lines 17-21; Def. Exh. E, pp. 63-64; Def. Exh. F, pp. 87, 91-92, 94-96, 111-114.) Thus, because at this time, there is no potential compensable injury to applicant's psyche for which defendant may

Defendant failed to establish relevance of psychiatric history to applicant's alleged headaches.

From the decision · page 6As detailed below, defendant failed to meet their burden in establishing the relevance of applicant's mental health history in order to compel applicant to answer psychologically related questions. Applicant has not pled injury to her psyche and has not sought compensation for any psychiatric impairment. Accordingly, applicant has not waived her right to privacy as it relates to her psychiatric condition.