ADJ9223005 · May 10, 2024

The WCJ initially found no breach, but the WCAB after removal found that sharing applicant's medical information with persons other than Behrooz Bernous, Ph.D., violated the July 22, 2022 stipulation based on the plain language of the agreement and privacy considerations.

From the decision · page 8Accordingly, we will dismiss applicant's Petition as one seeking reconsideration. We will grant the Petition as one seeking removal, and as our decision after removal, amend Finding of Fact No. 1 to reflect that the sharing of applicant's records, notes, and raw testing results maintained by Dr. Gonzalez with persons other than Behrooz Bernous, Ph.D., constituted a breach of the July 22, 2022 discovery stipulation.

Sharing of applicant's medical information with persons other than Behrooz Bernous, Ph.D.

Favours Applicant prevailed

This sharing exceeded the terms of the July 22, 2022 stipulation and constituted a breach.

From the decision · page 7However, although we share applicant's concern at the manner in which his personal and psychiatric data has been shared, we do not reach the issue of whether the sharing of this information with unlicensed individuals constitutes a breach of the July 22, 2022 stipulation. This is because we are persuaded in the first instance that the sharing of applicant's neuropsychiatric data with persons other than Dr. Bernous exceeds the terms of the July 22, 2022 stipulation as evidenced by the plain language of the agreement.

Lab. Code, §§ 5900(a), 5902, 5903; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39; Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068;

A petition for reconsideration may only be taken from a final order, decision, or award; interlocutory procedural or evidentiary decisions are not final.

The WCJ's decision was an interlocutory procedural order and thus not final, leading to dismissal of the petition for reconsideration.

From the decision · page 4A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Id. at p. 1075 ["interim orders, which do not decide a threshold issue, such as intermediate procedural or evidentiary decisions, are not `final'"]; Rymer, supra, at p. 1180 ["[t]he term [`final'] does not include intermediate procedural orders or discovery orders"]; Kramer, supra, at p. 45 ["[t]he term [`final'] does not

Cal. Code Regs., tit. 8, § 10955(a); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274

Removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result and reconsideration is inadequate.

The WCAB granted removal because the applicant showed substantial prejudice or irreparable harm and reconsideration was inadequate.

From the decision · page 5To the extent that the Petition addresses the WCJ's discovery order, we will treat the petition as one seeking removal. 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); 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).)

Bank of the West v. Superior Court (1992) 2 Cal.4th 1254

Contractual interpretation aims to give effect to the mutual intention of the parties; clear and explicit language governs.

The WCAB interpreted the stipulation based on the plain language and intent of the parties.

From the decision · page 5The dispute at bar involves a stipulation between the parties. A written stipulation is subject to the general rules of contract enforcement and interpretation. (County of San Joaquin v. Workers' Compensation Appeals Bd. (Sepulveda) (2004) 117 Cal.App.4th 1180, 1184 [69 Cal.Comp.Cases 193]; Maggio v. Windward Capital Management Co. (2000) 80 Cal.App.4th 1210, 1214 [96 Cal. Rptr. 2d 168]; Burbank Studios v. Workers' Co. Appeals Bd. (Yount) (1982) 134 Cal.App.3d 929, 935 [47 Cal.Comp.Cases 832].) The California Supreme Court has stated: "The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.) (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264 [10 Cal.Rptr. 2d 538].)

California Constitution article I section 1 protects privacy rights including medical records.

The WCAB recognized applicant's constitutional right to privacy in medical records relevant to the claim.

From the decision · page 6We are also mindful that notwithstanding the filing of a claim for workers' compensation benefits, applicant maintains 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 [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).)

Sharing of neuropsychiatric testing data with persons other than Behrooz Bernous, Ph.D.

From the decision · page 7However, although we share applicant's concern at the manner in which his personal and psychiatric data has been shared, we do not reach the issue of whether the sharing of this information with unlicensed individuals constitutes a breach of the July 22, 2022 stipulation. This is because we are persuaded in the first instance that the sharing of applicant's neuropsychiatric data with persons other than Dr. Bernous exceeds the terms of the July 22, 2022 stipulation as evidenced by the plain language of the agreement.