Category Archives: Discovery

Judges Doing Their Own Investigating? Not in My California Comp!

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A recent split-panel decision served to caution workers’ compensation Judges against looking for facts outside of their hearing rooms.  Check underneath the chairs, look between the cushion seats, and, if necessary, place a “lost and found” box on your desk, but confine your search for the facts to the four walls of your hearing room.

In the case of Alfonso Ponce De Leon v. Barrett Business Services, the workers’ compensation Judge elected to do some investigating, calling several physicians in defendant’s medical provider network to determine if applicant’s claims as to their availability (or lack thereof) were true.  If this sounds familiar, it may be because you read a post, sometime ago, about a WCJ who did an internet search to get the background of a defense witness.

Basically, applicant claimed that defendant’s MPN did not provide any orthopedic surgeons, within a reasonable geographic area, willing to take workers’ compensation patients.  Applicant (and applicant’s attorney) would like nothing better than to free of defendant’s MPN and pick a treating physician with the appropriate outlook and sensitivity to applicant’s “position.”

To determine if the allegation of a hollow MPN was true, the WCJ did not instruct the defendant to obtain written declarations from each physician’s office listed or request that applicant’s attorney personally speak to each doctor’s staff to determine availability.  Instead, the WCJ took a list of six doctors listed in defendant’s MPN with the appropriate specialty and geography, and picked up a phone.

Two doctors he did not call at all, one did not answer, one declined to take any workers’ compensation patients, and the remaining two offered to do an initial evaluation and establish a treatment plan.  From this, the WCJ concluded that applicant was free to go outside of the MPN “based on the failure of the doctors within the MPN to accept the applicant for treatment.”

The panel did not take kindly to judicial investigation.  Let’s just say that, in the panel opinion, the Judicial Code of Ethics was mentioned.  Nor was the two-commissioner majority persuaded that the fruit of the WCJ’s poisonous tree justified the findings of fact.  Your blogger’s favorite quote?  “Additionally, failing to reach a physician’s office with a single telephone call does not establish the unavailability of the physician.”

The dissent pointed out that the defendant had not raised the issue of the WCJ’s phone calls in its petition for reconsideration.  Also, the dissent interpreted the WCJ’s investigation as merely assisting the applicant in finding a treating physician.

If these were the WCJ’s intentions, circumventing the present conflict by bolstering applicant’s phone inquiries with the booming voice of the Board, then perhaps the action was noble… but no less inappropriate.  If the WCJ did not find applicant credible with respect to his claims, or found his claims unsupported, then such a finding should have been reflected in the conclusion of the proceeding.  But the WCJ did not take applicant at his word.

Defendant’s petition for reconsideration was granted.

132a and the Kitchen Sink Subpoena

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Labor Code section 132a allows applicants to sue their employers for “discrimination,” which is normally some allegation of an adverse action taken against an employee because of an industrial injury.  By law, employers may not be insured for 132a claims and must bear the risks of liability and the costs of litigation themselves.  Non-workers’ compensation attorneys often find themselves asked to advise their business/employer clients in 132a matters, thinking this will be no different than contract disputes or employment law litigation.  It is different – save your sanity and contact a workers’ compensation attorney to help navigate the murky, murky, murky waters.

Recently, the Workers’ Compensation Appeals Board issued a panel decision in a 132a case, granting defendant’s petition for removal of a workers’ compensation Judge’s discovery order. (Lidia Borrayo v. Tobar Industries.)

To prove her case of discrimination, or possibly to scare the defendant into settling, applicant’s attorney proceeded on a protective order instructing defendant to produce voluminous records, including trade secrets and information about third-parties (other employees).  The defense lawyer properly sought removal (as opposed to reconsideration) seeking a significantly narrower scope for the discovery order.

Among the information originally sought was the amount defendant pays for workers’ compensation insurance, for its group health insurance, employer profit and loss statements for 2008-2010, balance statements, and a significant amount of information about other employees laid off or hired in the past.

The WCAB correctly reasoned that allowing the discovery order to stand would subject defendant to significant prejudice and irreparable harm, and ordered the case returned to the WCJ to have applicant prove that this seemingly irrelevant information is “reasonably calculated to lead to the discovery of admissible evidence.”

Applicants will often enough serve an employer with a “kitchen sink” subpoena, wanting anything and everything, most of which is completely irrelevant to the 132a claim.  Part of this is because applicants’ attorneys don’t want to waste their time narrowly tailoring a subpoena when there is a chance an uninformed defendant will comply with all of it.  Part of this is because the prospect of burdensome and exhausting discovery compliance can scare up more settlement dollars if the employer is not properly advised.

If you find yourself on the receiving end of these boilerplate subpoenas, have your attorney push back – there’s no reason why a former employee who will likely go to work for a competitor should be provided with your trade secrets.