ADJ16819535 · February 21, 2025

The issue of temporary disability and attorney's fees was deferred due to defendant being deprived of due process by admission of a medical report after discovery closed, requiring further discovery and hearing.

From the decision · page 7Accordingly, we will grant the Petition, and, as our Decision After Reconsideration, we will rescind the F&A and substitute findings that defer the issues of temporary disability and attorney's fees; and we will return the matter to the trial level for further proceedings consistent with this decision.

October 18, 2024 PQME Report of Dr. Noriega was admitted after discovery closed

Favours Applicant prevailed

Deprived defendant of due process and required deferral of temporary disability issue for further discovery and hearing

From the decision · page 7Here, the October 18, 2024 PQME Report of Dr. Noriega opined on the primary issue framed for trial, i.e., whether and for what period applicant is entitled to temporary disability benefits, yet was not produced until after discovery was alleged to have been complete. (Ex. 5, PQME Report of Robert Noriega, Jr., M.D., dated October 18, 2024, pp. 1-2; Declaration of Readiness, October 11, 2024, pp. 1-7.) Defendant was thus deprived of the opportunity to conduct discovery of the bases for Dr. Noriega's reporting and its objection to its admission into evidence was well taken. (Minutes of Expedited Hearing, October 31, 2024, pp. 2:1-3:5.)

Applicant has been temporarily totally disabled for at least 104 weeks since June 2021; condition is insidious and progressive but relatively stable for rating purposes as of October 24, 2023; applicant is permanently and substantially incapacitated from usual job duties due to brain injury causing permanent mental incapacity; applicant can perform limited sedentary work with restrictions but not regular dependable employment.

Medical report was admitted after discovery closed, depriving defendant of due process and requiring further proceedings.

From the decision · page 22:2-10.) At expedited hearing, defendant's attorney objected to the admission of an exhibit titled PQME Report of Robert Noriega, Jr., M.D., dated October 18, 2024, on the grounds that it was received after applicant filed his DOR. (Id., p. 3:3-5.) The WCJ overruled the objection and admitted the exhibit in evidence. (Id.) The PQME Report of Dr. Noriega dated October 18, 2024 states: This supplemental report issues in response to my receipt of a letter of inquiry from David Angelo, Esquire dated 08/20/2024 asking additional questions which will be summarized and answered herein.... Question 1: Please confirm the applicant has been temporarily totally disabled for at least 104 weeks since June of 2021.

California Labor Code

Labor Code section 5909

Requires Appeals Board to act on petition for reconsideration within 60 days of case transmission; service of report constitutes notice of transmission.

From the decision · page 4Former Labor Code section 5909 provided that a petition for reconsideration was deemed

Fidelity & Cas. Co. of New York v. Workers' Comp. Appeals Bd. (Harris) (1980) 103 Cal.App.3d 1001

Due process requires all parties be fully apprised of evidence and given opportunity to respond

Admission of medical report after discovery closed deprived defendant of due process.

From the decision · page 7537].) Due process requires that all parties' must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal. In no other way can a party maintain its rights or make its defense. [Citations.]' (Fidelity & Cas. Co. of New York v. Workers' Comp. Appeals Bd. (Harris) (1980) 103 Cal.App.3d 1001, 1015 [45 Cal.Comp.Cases 381].) (Katzin, supra, at 711-712.)

Admission of October 18, 2024 PQME Report after discovery closed deprived defendant of due process

From the decision · page 7Here, the October 18, 2024 PQME Report of Dr. Noriega opined on the primary issue framed for trial, i.e., whether and for what period applicant is entitled to temporary disability benefits, yet was not produced until after discovery was alleged to have been complete. (Ex. 5, PQME Report of Robert Noriega, Jr., M.D., dated October 18, 2024, pp. 1-2; Declaration of Readiness, October 11, 2024, pp. 1-7.) Defendant was thus deprived of the opportunity to conduct discovery of the bases for Dr. Noriega's reporting and its objection to its admission into evidence was well taken. (Minutes of Expedited Hearing, October 31, 2024, pp. 2:1-3:5.)