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In Hunter v. Oroville Elementary School, 2014 Cal. Wrk. Comp. P.D. LEXIS --, a deeply divided WCAB panel denied an applicant’s petition for removal and upheld the WCJ’s order compelling a pro per applicant to attend a deposition noticed by the California Insurance Guarantee Association (CIGA), this after 18 years from the date of the applicant’s 1996 industrial injury and 16 years after the applicant received a stipulated award including future medical treatment.
The majority of the WCAB panel also affirmed the WCJ’s order suspending workers’ compensation proceedings until the applicant appears for her deposition, when the WCAB panel found that the applicant did not establish that the WCJ’s order caused substantial prejudice or irreparable harm so as to justify removal under 8 Cal. Code Reg. § 10843, nor did the applicant demonstrate that reconsideration would be an inadequate remedy if an adverse decision ultimately issues.
The WCAB panel stated that the fact that the defendant might ask questions that violate the applicant’s right to privacy was, at best, speculative, and that if the applicant, after submitting to the deposition, believes a question violates her right to privacy, she could refuse to answer the question unless ordered to do so by the WCJ.
In a strongly worded dissent, Deputy Commissioner Sullivan would grant removal and rescind the WCJ’s order to the extent it directs the applicant to attend a deposition and to the extent it precludes her from commencing proceedings before the WCAB until she does so. The Deputy Commissioner reasoned that, in order to justify taking the applicant’s deposition, the defendant is required under Code of Civil Procedure § 2017.010 to make some showing that the deposition is relevant (i.e., it is reasonably calculated to lead to the discovery of admissible evidence). But the defendant has not done so here, in that CIGA did not show that the applicant suffered or alleged a new injury or that the deposition may lead to the discovery of relevant evidence regarding a potential petition for reimbursement or contribution or a change of administrator of the medical award. Contrary to the majority’s finding, the order directing the injured employee to appear at a deposition when absolutely no basis for taking the deposition has been shown causes significant prejudice and irreparable harm, especially when the employee is unrepresented and when neither defendant’s motion to compel applicant to attend the deposition nor the WCJ’s order compelling applicant to attend limits what questions could be asked. Moreover, reconsideration would not be an adequate remedy as there are no pending issues from which a “final” decision subject to reconsideration could issue, and that there is no legal authority to suspend proceedings for failure to attend deposition.
Read the Hunter noteworthy panel decision.
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