There is a tremendous amount of benefit to having an employer’s representative sitting next to the defense attorney at a deposition.  When the injured worker starts steering the deposition to fantasy land, an employer’s representative can provide specific questions to asks or facts to explore to build a record which would support a charge of perjury or discredit the witness in various other means.  Naturally, the applicant’s attorney would much rather avoid such aid to defense counsel.

In the matter of Irene Yera v. J.C. Penney, applicant refused to attend a properly noticed deposition because she felt “intimidated” by the presence of employer’s store manager.  Defendant filed a petition to compel, but the workers’ compensation Judge denied the petition, even though there was no showing of why the employee was intimidated by the store manager.

Naturally, defendant petitioned the Workers’ Compensation Appeals Board for removal, arguing that defendant was denied its right to due process.

So, dear readers, isn’t it unfair to have the applicant provide deposition testimony in the sight of someone who could immediately point out lies and inaccuracy?  Wouldn’t that be “intimidating”?

The WCAB didn’t think so.  Citing California Code of Civil Procedure section 2025.420(b)(12), the WCAB noted that, while a protective order could be sought during discovery, which was not done here, a party could not be excluded from a deposition.  The WCAB then reversed the WCJ’s order, granting defendant’s petition.