WCAB PROCEDURE– Close of discovery– Labor Code §5502(e)(3) – Discovery closes on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference. The purpose of this statute is to minimize delays and efficiently expedite case resolution by making sure parties are prepared for trial. (See Telles Transport, Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 3 WCAB Rptr. 10,315.) Cathy Hernandez v. Workers' Compensation Appeals Board, San Diego Unified School District 7 WCAB Rptr. 10,175
WCAB PROCEDURE– Evidence of conviction of a felony–Evidence Code §788– Evidence of a felony conviction can be used to impeach the credibility of a witness. The proper objection is not lack of relevance but rather the objection must expressly cite Evidence Code §352 [highly prejudicial]. (See People v. Anderson (1990) 52 Cal.3d 453.) Ricardo Garcia v. Workers' Compensation Appeals Board, Laidlaw Transportation Co. 7 WCAB Rptr. 10,140
WCAB PROCEDURE– Excluding defense QME testimony– In this case, applicant sought to exclude the testimony of the defense QME on the basis that the QME was biased against the applicant due to litigation between the applicant's attorney and the defense QME. The applicant was free to argue that the QME's credibility could be challenged because of the litigation with applicant's attorney, but excluding a witness from testifying on the basis of bias is a different concept than attacking credibility of the testimony of a witness due to bias. Maria Talavera v. Workers' Compensation Appeals Board, Santa Fe Design. 5 WCAB Rptr. 10,246
WCAB PROCEDURE– Evidentiary privileges– While Labor Code §5708 provides that the WCJ is not bound by statutory rules evidence, Evidence Code §910 provides that the evidentiary privileges contained in the Evidence Code are applicable to all hearings conducted by an administrative agency or hearing officer. Thus, the privilege provisions are routinely applied in workers' compensation proceedings. (See Allison v. Workers' Comp. Appeals Bd. (1999) 92 Cal.App.4th 654.) Elliott J. Wachtel v. Workers' Compensation Appeals Board, Thrifty Oil Co., (Vandana Kapoor) 5 WCAB Rptr. 10,245
WCAB PROCEDURE– Exclusion of medical reports– Cal.Code Regs. Title 8 §10606 & 10608– It is fundamental that medical reports must be served on the opposing party. In this case defendants offered no explanation for not serving the reports on the opposing party. While they argue tht the medical records were available in a related civil action, this does not relieve the defense from the duty to service the medical reports in the workers' compensation case since applicant's counsel did not represent the applicant in the civil matter. Atlantic Mutual Insurance Company v. Workers' Compensation Appeals Board (Cheryl Lyon) 3 WCAB Rptr. 10,245
WCAB PROCEDURE– Exclusion of evidence– In this case the applicant offered three volumes of material data safety sheets for various substances which may have been used in the workplace. No foundation was laid for the admission of any of the documents and none of the documents had be reviewed by any of the doctors in the case. There was no evidence as to which of the substances were in use at the time of the applicant's alleged exposure. The material data safety sheets were properly excluded since not proper foundation was laid. Diana L. Combs v. Workers' Compensation Appeals Board, McJunkin Corporation. 3 WCAB Rptr. 10,141
WCAB PROCEDURE– Evidence in WCAB proceedings– Labor Code §5708– In the conduct of its proceedings, the Appeals Board is authorized to depart from the rules of evidence and civil procedure, provided that whatever inquiry is made is best calculated to ascertain the substantial rights of the parties and carry out the provisions of the Labor Code. Bruce Lee Morton v. Workers' Compensation Appeals Board, Sherman Way Condominium Association. 3 WCAB Rptr. 10,141
WCAB PROCEDURE– Filing of Petition– Cal.Code Regs. Title 8, §10500 & 10514– The failure to commence the proceeding with a properly filed and served Petition for Serious and Willful Misconduct is jurisdictional and therefore a hearing on the question of degreed of prejudice to the employer would be inappropriate. Joseph Fisher v. Workers' Compensation Appeals Board, Lee Hunsucker. 3 WCAB Rptr. 10,141
WCAB PROCEDURE– Amount of attorney fees– With respect to the issue of the amount of the attorney's fee, the defendant is not an agrieved party and therefore lacks standing to seek reconsideration. (Labor Code §§ 5900(a) and 5903.) Pacific Bell v. Workers' Compensation Appeals Board (Amanda Curran) 3 WCAB Rptr. 10,071
WCAB PROCEDURE– Credibility of witnesses– The WCJ finding of Labor Code §132a discrimination was based, in part, on credibility findings with regard to certain witnesses. The Appeals Board may reweigh the evidence in the record, reject the finding of the WCJ and reach a contrary conclusion on the same record, only if evidence of considerable substantiality supports the contrary finding. (See, Garza v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 312.) Tutor-Saliba Corporation v. Workers' Compensation Appeals Board (Alfredo Garcia) 3 WCAB Rptr. 10,046
WCAB PROCEDURE– Determination of issues– Labor Code §5815– Every order, decision or award must contain a determination of all issues presented for determination by the Appeals Board. Any issue not so determined will be deemed decided adversely as to the party in whose interest such issue was raised. [In this case, the issue of hearing loss was not raised at trial and the omission of a findng with regard to hearing loss in the Findings and Award would not constitute an adverse finding within the meaning of Labor Code §5815. County of Los Angeles v. Workers' Compensation Appeals Board (George Bardwell) 3 WCAB Rptr. 10,262
WCAB PROCEDURE– Reweighing evidence by WCAB– With regard to issues of credibility, the Workers' Compensation Appeals Board may reweigh the evidence in the record, reject the finding of the WCJ, and reach a contrary conclusion on the same record, only if evidence of considerable substantiality supports a contrary finding. (See Garza v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 312.) L.A. Casino, Inc. v. Workers' Compensation Appeals Board (David Avila) 3 WCAB Rptr. 10,191
WCAB PROCEDURE– DISCOVERY ORDERS– Labor Code §5708– The Appeals Board is not bound by common law or statutory rules of evidence or procedure, but may make inquiry in the manner, through oral testimony and records, which is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provision of the workers' compensation law. IBM Corporation v. Workers' Compensation Appeals Board (Marthola Jefferson) 3 WCAB Rptr. 10,066
WCAB PROCEDURE– Failure of applicant to appear at trial– When the applicant failed to appear at trial and defendant did not issue a subpoena or request in writing at least 10 days prior to trial that applicant should appear at trial, defendant is without a remedy. (See Dole Bakersfield v. Workers' Comp. Appeals Bd. (1998) 64 Cal. App. 4th 1273.) 99 Cents Only Stores v. Workers Compensation Appeals Board (Maria Christina Fernandez) 3 WCAB Rptr. 10,089
WCAB PROCEDURE– Issues in dispute at trial– Once Mandatory Settlement Conference has taken place, thereafter the WCJ must rely on the parties stipulations and assume that nay legitimate issues have been raised by the parties. Allstar Insurance Company v. Workers' Compensation Appeals Board (Delaina Cochran) 3 WCAB Rptr. 10,046
WCAB PROCEDURE– Labor Code §5402 does not mandate the striking of medical evidence from the record. The section precludes the use of medical evidence not obtained within the 90-day period, that could have been so obtained, from being used to rebut the presumption of compensability under that section. Juan C. Verduzco (Deceased) by Carmen Verduzco v. Workers' Compensation Appeals Board, Patina Visuals. 3 WCAB Rptr. 10,136
WCAB PROCEDURE– Decision of Workers' Compensation Appeals Board– Labor Code §5908.5– Any decision of the Appeals Board granting or denying a petition for reconsideration of affirming, rescinding, altering, or amending the original findings, order, decision or award following reconsideration must state the evidence relied upon and specify in detail the reasons for the decision. Fireman's Fund Insurance Company v. Workers' Compensation Appeals Board (Mark Moore) 3 WCAB Rptr. 10,051
WCAB PROCEDURE– DUTY TO INVESTIGATE– Cal.Code Regs. Title 8, §10109– The employer upon receiving notice or knowledge of injury or a claim has a duty to conduct a reasonable and timely investigation. Under AD rule 10109 a reasonable investigation must attempt to obain the information needed to determine compensability in a timely fashion and provide benefits, if any, which may be due the employee.
WCAB PROCEDURE– Range of medical evidence to support permanent disability– It is within the province of the WCJ's duties to resolve conflicts in the evidence. When confronted with widely divergent views as to the extent of loss of function of the body, the WCJ may make a determination within the range of the evidence as to the degree of disability. (See State Compensation Ins. Fund v. Industrial Acc. Com., 195 Cal. 243.) Nasim Sheida v. Workers Compensation Appeals Board, Sports Chalet. 3 WCAB Rptr. 10,174
