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| | From the Front Lines -- The Value of Discovery
By Kelvin Collins - November 9, 2011
I was born and raised and continue to live in Southern California. One of the values my parents taught me growing up which I still retain today is to own up to my mistakes. Well I am here to do that right now because I recently made a big one on a high exposure case which is currently set for trial.
Applicant is a long-term employee who claims a heart attack AOE/COE, and the AME on the case opined the heart attack not to be work related. However, the AME also found applicant did suffer damage to the heart from other factors but did not indicate if those other factors were work related. I did not want to leave any loose ends. Therefore, my plan of action was to schedule the doctor’s deposition prior to a mandatory settlement conference, however, the file fell through the cracks, and it did not get done. Naturally, I accepted full responsibility for this mistake.
Before I knew it, opposing counsel filed a DOR for an MSC, and I went to court with my tail between my legs. Although the judge complimented me on my forthcoming attitude, he overruled my objection to take the case off calendar for the doctor’s deposition and set the case for trial based on opposing counsel's motion. Additionally, the MSC Judge deferred the admissibility of the doctor’s deposition and punted to the trial judge even though the law goes both ways on this issue.
Labor code 5502 (e) (3) states in pertinent part "Discovery shall close 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."
However, Labor Code 5701 states "…The Appeals Board may also from time to time direct any employee claiming compensation to be examined by a regular physician. The testimony so taken and the results of any inspection or examination shall be reported to the Appeals Board for its consideration.”
Also, rule and regulation §10353 (a) says the MSC Judge may make orders and rulings regarding admission of evidence and discovery matters.”
Furthermore, subsection (b) states “The workers' compensation judge may temporarily adjourn a conference to a time certain to facilitate a specific resolution of the dispute(s) subject to Labor Code section 5502, subdivision (e)(1). Subject to the provisions of Labor Code Section 5502.5 and Rule 10416, upon a showing of good cause, the workers' compensation judge may continue a mandatory settlement conference to a date certain, may continue it to a status conference on a date certain, or may take the case off calendar.”
So it appears for now discovery is indeed closed at least until the date of trial. At that time, the trial judge will need to return the “punt” by the conference judge and determine whether or not to further develop the record and allow the AME deposition into evidence. Hopefully, the judge was born and raised with the same values as I.
Readers who'd like to respond to Kelvin Collins may write to the editor, Lonce LaMon at lonce@adjustercom.com
Kelvin Collins is the nom-de-plume for a Workers Compensation Hearing Representative who regularly appears in Southern California at the Workers’ Compensation Appeals Board
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