WCDefenseCA

As my beloved readers are well aware, your humble blogger does not think very highly of “developing the record.”  If the matter isn’t ready to proceed to trial, then someone should object to the Declaration of Readiness to Proceed to an MSC.

However, since the Workers’ Compensation Appeals Board allows developing the record to happen from time to time, it is nice to see the effects of this practice limited.

I submit to you, for your consideration, the case of Shirley Washington v. Costco Wholesale.  Applicant erroneously filed a petition for reconsideration of a workers’ compensation Judge’s discovery order (discovery orders are generally reviewed as petitions for removal).  A prior decision by the workers’ compensation appeals board had ordered the record developed on the issues of apportionment between a specific injury and a cumulative trauma, and the applicability of a Labor Code provision to the CT claim.

In this case, applicant sought to develop the record on everything under the sun, while the defendant wanted to limit developing the record to those issues ordered by the WCAB.  (In a strange break from its nature, Costco moved for individual discovery items rather than a bulk purchase.)  When the WCJ found that the record could only be developed on those issues ordered by the WCAB, the applicant filed for reconsideration.

The WCJ recommended the petition for reconsideration be dismissed and the petition for removal be denied, and the WCAB was happy to oblige.

Applicants love “developing the record” because it gives them bite after bite at the apple, and each additional evaluation only increases the med-legal cost for the defendant. In other words, at least as far as this panel opinion holds, a grant of reconsideration or removal to develop the record is inherently limited in its scope, and not a ticket to a discovery buffet.