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Grupe Co. v. Workers' Compensation Appeals Board9/15/2005
lly feasible at the time of my evaluation, and I do not believe her to be a feasible candidate for the plans as written . . . ."
On cross-examination, Sidhu admitted his opinion as to Ridgeway's inability to compete in the labor market was created after August 17, 2001. Petitioners moved to strike the testimony, arguing it was developed after the close of discovery on July 10, 2001. The trial court denied the motion without prejudice.
Petitioners presented testimony by a rehabilitation counselor, who testified Ridgeway's rehabilitation plans were part time with a goal of part-time work. Although the counselor stated Ridgeway experienced pain, she was also enthusiastic. While the counselor shared Ridgeway's concerns about her ability to work, the counselor believed Ridgeway could work if she felt able. Ridgeway was personable and could sell herself to employers.
Petitioners Submitted a Posttrial Brief
The WCJ issued a "Findings and Award and Orders and Opinion on Decision." The WCJ made numerous findings, including: (1) Ridgeway suffers partial disability in the amount of 39 percent, (2) there is need for further medical treatment to cure or relieve the effects of the industrial injury, (3) self-procured medical treatment was reasonable and reimbursable by petitioners, and (4) an attorney fee of 12 percent would be allowed.
The WCJ also concluded Ridgeway "was not a credible witness on her own behalf. When faced with contradictions between her testimony and the history given to examining physicians and her rehabilitation counselor, she had not explanation except that others were mistaken. [ ] The reporting and conclusions of Dr. Tempkin [the treating physician] are unfounded and speculative. The Court cannot rely upon such an opinion that does not have its basis in the facts of this case. In contrast, the opinion of Dr. Weitz (who the parties will note the Court previously had relied upon for a substantive finding) was found to be thorough, correct, and corroborated by the entire credible factual record. Dr. Weitz' opinion was used for all determinations of a medical nature including permanent and stationary date, permanent partial disability, and need for medical treatment."
The WCJ also discussed the testimony of Ridgeway's witness Sidhu. The WCJ found: "What is clear from Exhibit `3' and the testimony witness Sidhu was that this discovery was not even attempted until after the Court specifically ordered discovery closed on 7/10/01. Applicant clearly violated the discovery order of this Court. Applicant cannot now stand before this Court and seek reimbursement for such costs. Further, applicant cannot introduce testimony of a supposed expert based on matters not attempted until after discovery was closed. To allow the testimony in would be a clear-cut denial of due process for defendant. [ ] The Court did review the testimony and exhibits of witness Sidhu and, even if his testimony and documents were to be fully considered by the Court, nothing would change. His testimony was less than compelling as to applicant's ability to profit from vocational retraining. It is clear that her lack of ability to profit is more a motivational problem than related to her industrial injury."
Ridgeway filed a motion to strike the recommended rating, arguing the rating failed to incorporate the testimony of her vocational rehabilitation expert, Sidhu. According to Ridgeway, Sidhu's testimony provided substantial evidence as to the vocational impact of her medical restrictions.
Petitioners filed a response to Ridgeway's motion to strike the recommended rating. Petitioners argued, under section 5502, former subdivision (f), disc
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