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Grupe Co. v. Workers' Compensation Appeals Board9/15/2005
Petitioners’ petition for rehearing was denied October 14, 2005.
CERTIFIED FOR PARTIAL PUBLICATION
Respondent Ruby Ridgeway, while working for petitioner Grupe Company (Grupe) as a computer operator, injured her upper extremities and neck and was awarded temporary disability payments. Petitioner Ace USA (Ace) provided workers' compensation insurance coverage for Grupe. Grupe and Ace's petition to terminate temporary disability was granted. A Workers' Compensation Appeals Board judge (WCJ) found Ridgeway suffered from a permanent partial disability of 39 percent and awarded future medical treatment and attorney fees. In so finding, the WCJ struck the testimony of Ridgeway's vocational rehabilitation expert as violating a discovery order. Ridgeway filed a petition for reconsideration. After granting the petition, respondent Workers' Compensation Appeals Board (WCAB) issued a decision after reconsideration, finding Ridgeway's expert's opinion was admissible and remanding the matter for further development of the medical record.
Petitioners appeal, contending: (1) Ridgeway violated the discovery order, and her expert's opinion should not be considered; (2) petitioner Ace should not be required to pay costs because of the violation of the discovery order; (3) the medical opinion relied upon by the WCJ constituted substantial evidence; and (4) the WCAB erred in ordering further development of the medical record. We find, as a threshold matter, that the opinion and order granting reconsideration and decision after reconsideration is a final order that can be appealed. We conclude the admission of Ridgeway's expert's testimony comported with Labor Code section 5502, former subdivision (d)(3). We shall deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Ridgeway suffered an industrial injury in March 1987 that affected her upper extremities and neck. In March 1989 a WCJ awarded temporary disability payments from the date of injury and continuing, along with further medical care.
In 1992 petitioners filed a petition to terminate temporary disability benefits. The parties entered a stipulation agreeing temporary disability would terminate at the end of July 1992 and vocational rehabilitation temporary disability benefits would begin immediately thereafter.
Subsequently, Ridgeway's condition deteriorated, interrupting vocational rehabilitation. Temporary disability payments began again in August 1994. In April 1996 vocational rehabilitation began anew but was again interrupted. Temporary disability payments recommenced in August 1997.
In June 1999, relying on the opinion of its expert, Dr. Ernest M. Weitz, petitioners filed a petition to terminate liability for temporary disability under California Code of Regulations, title 8, section 10466.
Ridgeway objected.
At the hearing, the parties submitted medical reports, but no testimony was taken. The WCJ issued findings and an order. The WCJ determined there was no good basis to terminate temporary total disability. The WCJ also considered Dr. Weitz's opinion, submitted by petitioners. The WCJ concluded: "The reporting of Dr. Weitz is anything but substantial evidence on the issue at hand. The report is stale (11-19-98), and his statement that applicant is permanent and stationary is not based upon substantial evidence."
Petitioners filed another petition to terminate temporary disability in June 2000. Petitioners relied on a May 2000 report by Dr. Weitz. Following a hearing, the WCJ granted petitioners' petition to terminate liability for temporary total disability.
In his opinion, the WCJ found: "The applicant is
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