 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Grupe Co. v. Workers' Compensation Appeals Board9/15/2005
overy closes at the mandatory settlement conference, and therefore Sidhu's testimony was inadmissible. In addition, petitioners argued the recommended rating reflected the medical evidence.
After the WCJ issued his findings and award, Ridgeway filed a petition for reconsideration with the WCAB. Ridgeway contended the WCJ erred in striking Sidhu's testimony, Sidhu's testimony constituted substantial evidence, and Weitz's opinion was not substantial evidence. Petitioners filed a response to the petition.
Subsequently, the WCJ submitted an amended report and recommendation on the petition for reconsideration. In April 2002 the WCAB issued an "Opinion and Order Granting Reconsideration and Decision after Reconsideration." In the opinion, the WCAB concluded the disclosure of Sidhu as an expert on the pretrial conference statement fulfilled the requirements of section 5502, former subdivision (d)(3). The WCAB noted: "Although it was not until . . . 15 days after the [mandatory settlement conference] that Mr. Sidhu first met with the applicant, we note that defendant could have reserved its rights at the MSC to depose Mr. Sidhu prior to trial or to obtain its own rehabilitation consultant and conduct a deposition in rebuttal." The WCAB held: " n remand, consideration must be given to the testimony of Mr. Sidhu, which is relevant on the issue of the extent of applicant's permanent disability . . . ."
The WCAB traced the series of reports by Dr. Weitz, petitioners' expert, and found: "Given applicant's testimony and the fact that Dr. Weitz did not change his opinion in May 2000 from that of his initial permanent and stationary report of November 19, 1998, we are persuaded that his report on applicant's permanent disability is stale [fn. omitted] and therefore deficient. [ ] We are persuaded that further development of the record is necessary including a new permanent and stationary report on the extent of applicant's permanent disability. Therefore, on remand, the WCJ should require the parties to obtain updated medical evidence."
Grupe and Ace filed a petition for writ of review. Ridgeway filed an answer. The California Applicant's Attorney's Association filed an amicus curiae brief in support of Ridgeway.
DISCUSSION
I.
Appealability
At the outset, the parties disagree over whether the order at issue is a final order subject to review. Petitioners contend the order granting reconsideration and decision after reconsideration is a final order because it affects a substantive right of a party: the liability of petitioners.
Ridgeway argues that if the order in question is construed to affect a substantive right simply because of the potential for higher liability, "then each and every decision of the WCAB is subject to Judicial Review." The amicus curiae agrees with Ridgeway, claiming petitioners "challenge 80+ years of case law in an effort to overturn a preliminary evidentiary ruling which does nothing more than entitle both parties to go back before the trier of fact. It does not immediately expose defendant to any greater liability that the initial award. It does not guarantee the result sought by the respondent."
The WCAB decision and order challenged by petitioners did not decide the merits of Ridgeway's claim for compensation, and it is possible Ridgeway may receive an increase in her disability rating and compensation following further discovery and trial. Were the usual rules of civil appellate practice to apply, the WCAB's order would not be a final, and therefore not an appealable, order. (See Code Civ. Proc., ยง 904.1; Rao v. Campo (1991) 233 Cal.App.3d 1557, 1565.) The final judgm
Page 1 2 3 4 5 6 7 8 9 10 California Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|