California: Employer Representative at Applicant's Deposition

California: Employer Representative at Applicant's Deposition

The WCAB issued an opinion, Padilla v. LAMTA, (6/28/10, ADJ6981165) which dealt with the issue of having an employer representative at the deposition (especially during the portions in which prior medical history was being discussed). If you would like a copy of the opinion, please let me know.

Background

The WCJ ordered that an employer representative “from HR Claims Mgt., not applicant’s manager or co-worker” be present at the applicant’s deposition in response to a motion by the applicant to restrict an employer representative at the deposition. The defendant filed a Petition for Removal because the WCJ’s decision denied it due process discovery rights. It was further prejudiced because the WCJ limited the type of representative to be present. The case involved orthopedic and psyche claims. The employer representative was the assistant transportation manager.

WCAB Opinion

The WCAB granted removal. Removal is rarely granted, but the WCAB was persuaded that the defendant would suffer significant, irreparable harm by being limited in who could be present at the deposition. The WCAB cited provisions of the Code of Civil Procedure (which govern the conduct of depositions in WC). Section 2017.010 says parties are permitted to do discovery “regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” Sections 2016.040 and 2025.420 (a) and (b) allow protective orders as justice requires “to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment or oppression, or undue burden or expense” based on a showing of good cause, accompanied by a meet and confer declaration stating facts showing a reasonable and good faith attempt at informal resolution of the issue.

The WCAB found the applicant had not shown the applicant would be subjected to unwarranted annoyance, embarrassment or oppression by having the employer representative present. The applicant indicated in the request for protective order that he had “a problem discussing his medical condition in front of the employer at his deposition.” The WCAB cited Section 2025.420(b)(12) of the Code of Civil Procedure that said designated persons, other than the parties to the action and their officers and counsel can be excluded from attending the deposition. The statute did not provide who may or may not be present at the deposition, but recognized that a party has the right to be present. In fact a court case (Willoughby v. Superior Court (1985) 172 Cal.App.3d 890) held that the absence of a party would significantly and unreasonably impair an attorney’s ability to represent the client. The WCAB found no statutory basis to exclude the defendant’s representative from the deposition.

The applicant raised his “right to medical privacy” to substantiate the request for an order. The WCAB said, “the applicability of the privilege and any waiver, while relevant to the scope of discovery, is not relevant to the issue of who defendant may select as its representative to attend applicant’s deposition.”

Interestingly, the WCAB noted the medical privacy statute in WC under LC §3762. Specifically subsection (c) states an insurer, TPA and those employees and agents specified by a self-insured employer to administer WC claims are prohibited from disclosing or causing to be disclosed to an employer any medical information with the exception of medical information that is necessary for the employer to modify the applicant’s work conditions or limited to the diagnoses of the applicant’s condition and treatment provided. The WCAB said the section did not deal with information disclosed by applicant at his deposition.

Therefore, the protective order the applicant sought was denied.

There was 1 Commissioner on the 3-Commissioner panel who dissented and said that the order issued by the WCJ would preserve a reasonable balance between the applicant’s limited right to privacy in the defendant’s right to have a representative of the employer present throughout the deposition.

Analysis

As a matter of caution, my practice has been to a exclude the employer representative at that part of the deposition where medical history is discussed in order to comply with LC §3762. The WCJ pointed out that if the defendant was allowed to have the supervisor or co-worker throughout the deposition, then the right to privacy would not exist and LC §3762 would have no force or effect. The WCAB opinion still holds that an insurer, TPA and employees designated by the self-insured employer to administer WC claims cannot disclose medical information, but information disclosed by the applicant at a deposition where an employer representative is present does not apply to that statute.

   © Copyright 2010 Nigel Scott Baker, Esq. All rights reserved. Reprinted with permission.