DISCLAIMER: The statements and opinions contained in this publication are those of the contributors only and are not necessarily those of the California Lawyers Association, the Workers' Compensation Section, or any government body. This information is intended to be a reference tool only and is not meant to be relied upon as legal advice.
My term as chair of the executive committee (“ExCom”) of the Workers’ Compensation Section is coming to a close. I remember many years ago when my colleague, Saul Allweiss, first described the ExCom to me and encouraged me to apply for membership (… thanks Saul!) I had long been a member of the Section but once I became a member its ExCom, I was amazed to see all the work that went on behind the scenes. For it’s through the ExCom that the work of our Section is performed: the requests to publish cases, community outreach activities, publication of the Workers’ Compensation Quarterly and all the various educational programs presented up-and-down the state and online are a product of the volunteer work of the committee’s members and advisors. These were all things that I had previously taken for granted as a Section member. It’s been an honor working with such a dedicated group of individuals from throughout the state – representing a cross-section of our industry’s current and retired judges, commissioners, applicants’ and defense attorneys – who lend their time and talent to advancing the practice of California’s workers’ compensation law. I would hope that anyone reading this might consider not only continuing their support of our Section by maintaining their membership and encouraging others to join us, but to also consider joining in the work that goes on behind the scenes by applying to become a member of the ExCom. I sincerely appreciate the opportunity and the privilege to have served as your ExCom chair this past year and I wish our incoming chair, Maria Sager, and our Section much success in the year to come.
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September 14-15, 2018 | Sheraton San Diego Hotel & Marina
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12 — Workers’ Compensation 101
Friday, September 14 — 11 a.m. - 12 noon
Are you new to the practice of law? Or perhaps you’re thinking of expanding your practice to include workers’ compensation hearings? If you want to learn the basics of a workers’ compensation case from start to finish, this is the panel for you! Three expert litigators, including a retired workers’ compensation judge, will impart a lifetime of experience and present a complete outline of a workers’ compensation case.
CLE: 1.0 Hour
Legal Specialization: 1.0 Hour Workers’ Compensation
16 — Workers’ Compensation Case Law Update - 2018
Friday, September 14 — 2 p.m. – 3 p.m.
A perennial favorite, speakers Judge Sharon Velzy and attorney David Skaggs will offer a detailed analysis of the hottest workers’ compensation cases that affect the way you practice. From published DCA opinions to interesting WCAB panel decisions interpreting SB 863, this presentation can’t be missed!
CLE: 1.0 Hour
Legal Specialization: 1.0 Hour Workers’ Compensation Law
20 — Practical Tips for Petitions for Reconsideration
Friday, September 14 — 3:10 p.m. – 4:10 p.m.
The Petition for Reconsideration is perhaps the most important brief a workers’ compensation litigator writes. The petition should concisely state the issue on appeal, outline the facts and evidence, explain the law and draw a clear conclusion. Join us as Commissioner Jose Razo shares his experience reviewing petitions for reconsideration at the Office of the Commissioners and provides practical tips for putting your best case forward.
By Kia Myers
Recently, the WCAB issued a decision limiting the scope of discovery of Defendant’s subpoena for medical records. In Gildo Beitia v. City of Oakland, 2018 Cal. Wrk. Comp. P.D. 228, the WCAB denied Defendant’s Petition for Removal of WCJ’s Ordering Limiting the Scope of its subpoena for medical records in a split decision. Defendant argued that by issuing the order without a hearing Defendant’s right to due process was denied. The WCAB disagreed.
In Beitia, Applicant filed a specific injury claim on September 3, 2015 involving his back and spine and included hypertension and weight gain as a compensable consequence. Defendant issued subpoenas for Kaiser and Advance Physical Medicine and Rehabilitation Group (Advance Physical Medicine). On September 19, 2017 applicant filed a Motion to Quash defendant’s subpoenas for any and all medical records from Kaiser and Advance Physical Medicine. The WCJ issued the Order limiting the scope of the subpoenas to injuries filed in the claim (back, spine, weight gain, and hypertension) on November 6, 2017.
In its decision the WCAB appear to agree that the subpoena was overbroad and therefore was not persuaded that substantial prejudice would result from the denial of the Petition for Removal. The WCAB opined that there are other forms of discovery to determine if additional records are necessary, such as the deposition of a treating physician or subpoenaing of additional records.
What is not clear from the decision is whether applicant’s deposition has been taken. If it had not Defendant could question applicant about their medical history. Was there a medical condition that applicant did not want revealed?
As a defense attorney, I have to own up to my immediate suspiciousness about this case. My thought is what is the applicant trying to hide? When I put myself in applicant’s position, I can understand why one would be concerned about one’s entire medical history being released to the insurance company. Having your medical records released could feel extremely invasive at worst, and unnerving at best. However, when one puts their medical condition at issue, it opens the discovery into one’s relative medical history.
Applicant has claimed compensable consequences of weight gain and hypertension. A relevant medical records should be reviewed to determine causation. Weight gain and hypertension are conditions that could have various causes, including other medical conditions or medications.
Let’s consider hypothyroidism, a condition that is known to cause weight gain. What if applicant was diagnosed with hypothyroidism and the condition was possibly the cause of applicant’s weight gain? Based on the Order limiting, it is likely that records related to this condition may not be released. If applicant fails to disclose the thyroid condition, would Defendant have a basis for additional discovery such as a physician deposition to support a release of the records? What other options would Defendant really have to support the release of records of other possibly relevant medical conditions?
As the dissent noted, it is necessary for the doctor to review all available medical records which might impact the issue of weight gain and hypertension. Without the complete records, an evaluating physician would not have all of the relevant information to make a fully informed opinion. Kia Myers Holsey is an associate attorney at Armstrong Law Firm in San Jose, California.
© Copyright 2018 Kia Myers. All rights reserved.
As a benefit of Section membership, CLA is pleased to offer six hours of MCLE credit, offering credit in all of the MCLE subfields, Elimination of Bias in the Legal Profession, Detection and Prevention of Substance Abuse and Emotional Distress and Legal Ethics. Just watch these programs found at the link below, and keep a record of having done so, in the event you're audited for MCLE compliance.
CLA Workers’ Comp Section members may also use this link to access a plethora of our most popular articles from our publications.