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Discovery and Procedure

  1. Volk v. Little Company (BPD) (44 CWCR 164:

The applicant was evaluated by a psychiatric PQME.

The applicant’s attorney requested an order compelling the deposition of the Qualified Medical Evaluator in the presence of the injured worker. Applicant argued an absolute right to be present in any deposition related to his case and that is exclusion would be a deprivation of due process.

The WCJ denied the petition without prejudice. In the ruling the judge noted the Qualified Medical Evaluator had not refused to be deposed, but had declined to do so if the applicant were present.

The WCJ open the door for the applicant to file a new petition to be addressed at a subsequent hearing, but applicant chose to petition the Board for removal, without however, serving the petition on the Qualified Medical Evaluator.

The WCJ first emphasized the applicant’s failure to serve the petition for removal on the Qualified Medical Evaluator was in itself a denial of due process that was enough to support a denial of removal. The applicant seeking to compel the appearance of the applicant at the deposition of the physician directly affected his rights.

The WCJ then discussed the physician’s declination to have his deposition taken with the applicant present reasoning that the PQME’s objection may have been to protect applicant, as many psychiatric medical-legal evaluators include admonitory language in their reports regarding affirmative steps to avoid applicants direct access to the report. According to the judge, the evaluator, in his reports, had commented that it would be potentially medically devastating to applicant to be present to hear the physician answer questions about the applicant’s medical health.

The WCJ disagreed with the crux of applicant’s argument for removal because there is neither statutory or case law unambiguously against his position therefore he must prevail. The WCJ cited CCP §2025.420 which discusses judicial authority to impose reasonable protective orders.

Specifically, the WCJ observed, the court has the power to determine that a deposition not be taken at all and to compel the scope of questioning. The WCJ stated that applicant’s reliance on CCP § 2025.420 (b) (12), which states that persons other than the parties to the action and their officers and counsel can be excluded from a deposition, struck the WCJ as an absolutist view of the subsection, at odds with the preceding subsections, which indicate the courts have the power to either in a reasonable protective orders and mandate that a deposition take place by interrogatories or not take place at all. The WCJ concluded that applicant’s argument that he had an absolute right to be present at the deposition was inconsistent with the overall language of CCP 2025.420.

The WCAB denied removal concluding the applicant had not proved that substantial prejudice or irreparable harm would result from his exclusion from the