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Discovery and Trial Practice

Antonio Vargas v. Darrell Becker; Becker Construction (BPD) (ADJ8647584) (LEXIS):

The WCJ issued a Findings and Award on September 19, 2016 finding that on September 13, 2012 applicant sustained an injury arising out of and occurring in the course of his employment. The WCJ also found that applicant was in need of further medical treatment to cure or relieve from the effects of the industrial injury and awarded reimbursement for out-of-pocket medical expenses.

Defendant filed a timely petition for reconsideration from the Judge’s decision alleging that the WCJ violated defendant’s due process rights by admitting the testimony of a witness purporting to be the applicant, even though it failed to establish his unavailability under Evidence Code 40.

Defendant further contended that the testimony of a witness purporting to be the applicant, taken through Apple’s Face Time application on a four-inch iPhone to establish the applicant’s identity and his last industrial injury, should of been excluded because the testimony was not authorized by the Federal Rules of Civil Procedure.

Defendant also contended that applicant’s testimony lacked probative value because it was not given under penalty of perjury.

In addition, defendant contended the testimony of the mother of applicant’s children should of been excluded under Labor Code §5502(d)(3) because she was not identified as a trial witness on the Pretrial Conference Statement and her testimony was not supported by an offer proof.

Finally, defendant contended that the applicant did not meet his burden of proof on the issues of industrial injury in need for further medical treatment.

The WCAB concluded that the WCJ’s finding of bilateral wrist injury, and self-procured and future medical treatment should be affirmed. However, development of the record is required concerning applicants claim of injury to other body parts. Therefore, the WCAB affirmed the WCJ’s decision in part and rescinded it in part, and return the matter to the trial level for further proceedings and a new decision on the outstanding issues.

The WCAB first dealt with the WCJ admitting applicant cell phone testimony.  At the outset the WCAB did not find merit in defendant’s contention that the WCJ erred in allowing applicant to  testify remotely, from Mexico, on an iPhone and/or iPad using Apple’s Face Time application.

In his petition for reconsideration, defendant apparently concedes that such remote testimony is legally acceptable where an applicant is “unavailable” because he has been deported and cannot reenter the country to testify in person. (Alvarez 214 Cal. Wrk. Comp. P.D LEXIS 449, citing Evidence Code § 240. The defendant asserted in their Petition that in Alvarez applicant testified that he was deported and could not legally attend a worker’s compensation trial.  Defendant contends that this case is different because applicant testified only he was in Mexico, not that he had been deported.

The WCAB disagreed. In Alvarez, the WCJ stated in her report that “there is no dispute that applicant is presently outside the United States and has no legal right to re-enter this country in order to testify at his trial.”  As with Alvarez, the trial transcript here and establish that applicant was deported and was unavailable to return to California to testified his worker’s compensation trial.

In addition, the EAMS file shows that defendant had known of applicant’s deportation since January 3, 2014, when defendant filed a Petition to Dismiss after applicant failed to appear for his deposition on two occasions. In that petition, defendant and knowledge that applicant’s attorney had notified defendant, in November 2013, that applicant could not attend his deposition because he had been deported.

Accordingly, the WCAB found no merit defendants claim that applicant’s testimony by must be excluded because he did not establish his “unavailability”.

The WCAB did not find merit in defendant’s contention that pursuant to Labor Code §130 and Cal Evidence Code 710, the WCJ exceeded his authority by allowing applicant to testify by iPhone; and under Penal Code 118 (a), applicant did not testify under penalty of perjury.

Defendant fails to establish the applicability of the statutes under the circumstances this case.

The trial transcripts show the applicant was duly sworn in testified to a Spanish interpreter by cell phone. There was no violation of Labor Code §130 because the WCJ administered the oath the applicant at the District Office of the WCAB in Santa Barbara, California. There was no violation of Evidence Code §710 because applicant took the oath in the form provided by law.

Defendants reliance on Penal Code §118(a) is similarly misplaced. Defendant alleges that applicant could lie or commit fraud, without fear of any consequences, as he was not subject to penalty of perjury at the time his testimony was taken. As just noted, applicant was in fact under oath when he testified by iPhone.

The WCAB disagreed with defendants premise that applicant could fabricate his testimony without fear of any consequences.  The trial transcript shows that defendant had the opportunity to probe the truth of applicant’s testimony by subjecting him to cross-examination. In addition, applicant’s testimony by cell phone was subject to impeachment and rebuttal by other evidence in the record. These factors provided incentive for applicants tell the truth.

Finally, defendant contends that applicant’s testimony by cell phone should be excluded because it does not comply with rule 28 (b) (1) of the Federal Rules of Civil Procedure. Subparagraphs (C) and (D) of this rule provide that a deposition may be taken in a foreign country (on notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination” or “before a person commissioned by the court to administer any necessary oath and take any testimony”

Defendant’s interpretation of the rule would require the Board to give mandatory effect to the rules permissive language. In addition, defendant fails to establish the relevance of this rule to a California Worker’s Compensation proceeding. The WCAB noted Labor Code §5710 authorizes “the deposition of witnesses residing within or without the state” and the statute further provides that “depositions may be taken outside the state before any officer authorized to administer the oath’s” however, it appears that defendant did not attempt to take applicant’s deposition outside California. Defendant also failed to explain how the statutory difference between Section 5710 and Federal Rules §28 (b) should be resolved.

Further the WCJ’s admission of applicant’s testimony by cell phone is proper under Labor Code §§5708 and 5709.  Labor Code §5708 provides that hearings before the WCJ shall not be bound by the common law or statutory rules of evidence and procedure, but may make inquire in the manner, through oral testimony and records, which is best calculated ascertain the substantial rights of the parties. Labor Code §5709 provides that no informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision or award, or rule.  Labor Code §5709 also provides that no order, decision or award, or rule shall be invalidated because of the admission into the record, and the use as proof of any fact in dispute, of any evidence not admissible under the common law or statutory rules of evidence and procedure.

The WCAB went on to indicate the WCJ did not err in admitting the testimony of the mother of applicant’s children. In this case the mother of applicant’s children was not disclosed as a proposed trial witness in the pretrial conference statement dated August 19, 2015.

However, applicant’s attorney called her as a trial witness on August 17, 2016.  The WCAB found testimony was admissible and did not violate Labor Code §5502(d)(3).

Because there was an issue raised by defendant of the identity of the applicant in between hearings applicant’s attorney copied a letter that stated because applicant’s identity was at issue applicant’s attorney arranged to have the mother of applicant’s children testify at trial. Applicant’s attorney also indicated he did not objective defense counsel took the deposition of the mother of the children.

At the hearing defendant objected to the mother’s testimony confirming applicant’s identity. WCAB allowed the testimony because defendant raised the issue of the identity of the applicant at the first hearing and applicant’s attorney’s letter indicated the need for the testimony of mother of applicant’s children and indicated it did not become apparent until defense counsel raise the issue of applicant’s identity over the cell phone at the first hearing and the second hearing. Since these events took place well after the MSC occurred on August 19, 2015, the need for the mother’s testimony could have been not been discovered by the exercise of due diligence before the MSC. The admission of the testimony did not violate Labor Code §5502(d)(3).

The WCAB also found that applicant met his burden of proof on the issue of injury arising out of and occurring in the course of employment.

On the issue of the transcript, defendant submitted a request to file a supplemental petition, alleging that vital information was omitted from the summary of evidence. Defendant also requested and obtained a trial transcript, which were scanned into EAMS.

The Appeals Board is not obligated to review trial transcripts in order to test the accuracy and completeness of summary of evidence, unless petitioner points to specific, material defects in the summary of evidence. (Allied compensation 26 CCC 241). In this case, defendant failed to describe the nature of the vital information that supposedly was missing from the summaries of evidence. Defendant also failed to attach the proposed supplemental petition to to its request to file the supplemental petition., Therefore the Board rejected the request to file a supplemental petition nevertheless using their discretion reviewed the trial transcripts and coming to their decision.


Zamundio v. Starco Enterprise (BPD) (45 CWCR 103):

 The defendant filed a petition to compel a homecare assessment.

A hearing was held and the WCJ allowed a registered nurse to complete an in-home care assessment. The order permitted the parties’ attorneys to be present during the assessment.

The applicant filed a petition for reconsideration appealing that portion of the order allowing defense counsel’s presence.

The WCAB first held that the order that been appealed was not a final order and therefore not subject to reconsideration. The panel dismissed the petition for reconsideration and granted removal instead to address the issues raised in the petition for reconsideration.

The WCAB than dealt with the issue of the defense attorney’s presence at the evaluation.

Pursuant to Labor Code §4052 an employee is entitled to have a physician present at any employer-required examination.

Further the Supreme Court in the case of Sharff v. Superior Court of San Francisco (44 C2d 508) noted the same right to have an attorney present at such an examination.

The protection afforded by having an attorney or physician present applies only to the applicant as there is a possibility that improper questions may be asked, and a layperson should not be expected to evaluate the propriety of every question is peril.

The applicant, therefore, should be permitted to have the assistance and protection of an attorney during the examination.

In the present case, it is defendant’s own nurse who is to conduct a homecare assessment; thus, there is no reason for defense counsel to be present to protect itself from any improper questions by the nurse during the evaluation.

The court rejected defendant’s contention that its exclusion from the evaluation violates its due process right.



In this case the applicant did not object to the discovery activity of defendant’s nurse entering her home and performing the assessment. The order allowing defendant’s nurse to perform the evaluation actually protects defendant’ due process rights and discovery. Conversely, permitting defense counsel to attend the assessment might irrevocably alter applicant’s right to privacy in the sanctity she feels in her home, a harm not rectifiable through reconsideration.


Therefore, that portion of the order allowing defendant’s attorney to attend the in-home care assessment was deleted.


Cann v. Desert View Auto Auction (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 214):


The WCJ issued an order instructing applicant to attend vocational evaluation scheduled by defendant and allowing vocational examination to be stenographically by a court reporter as requested by the applicant.


Defendant filed a petition for removal.


The WCAB granted removal and reversed the WCJ. The WCAB reasoned that there are no statutes or regulations regarding whether vocational evaluations may be recorded.


California Code of Civil Procedure §2023.510, applicable to medical examinations and relied on by the WCJ, did not apply here because vocational evaluation is not one of the authorized civil discovery methods, and the Code of Civil Procedure does not address such examination.


The WCAB found the WCJ has discretion to decide whether or not to allow recording of a vocational examinations in certain circumstances, and because there was no hearing and no evidence provided in this case regarding whether there was would cost allow recording of vocational valuation, the matter must be returned to trial level for further proceedings on the issue.