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Grupe Co. v. Workers' Compensation Appeals Board9/15/2005
e [citation], we think the long quiet interval here gives rise to as strong an arguable inference of acquiescence as is possible." (Maranian, supra, 81 Cal.App.4th at p. 1080.)
II.
Applying the rubric developed by Safeway and Maranian, we find Ridgeway's petition for reconsideration raised, and the WCAB's reconsideration decision was a final ruling on, a threshold issue affecting a substantial right. The admissibility of Ridgeway's expert Sidhu's testimony on the issue of Ridgeway's LeBoeuf claim is pivotal to the question of Ridgeway's entitlement to benefits. A legally incorrect decision by the WCAB allowing the testimony would prevent petitioners from exercising a substantial right to which they are entitled -- the ability to rely on the discovery statutes and to be fully informed of expert testimony prior to hearings. If the WCAB's reading of the statutory requirements for informing the opposing party of potential expert testimony is incorrect, petitioners will, in effect, have been sandbagged, surprised by undisclosed expert testimony on a crucial issue.
The interpretation of the discovery statute is also determinative of the scope of trial. With the aid of the testimony by Sidhu, Ridgeway may be able to establish a LeBoeuf claim, finding her 100 percent disabled because she is medically and vocationally precluded from competing in the labor market. If Sidhu's testimony is not allowable under the relevant discovery statutes, Ridgeway's LeBoeuf claim disappears. As a corollary, petitioners' liability to Ridgeway hinges upon the admissibility of Sidhu's testimony.
We in no way imply that all orders concerning discovery disputes automatically qualify as appealable orders. Interim orders that do not decide a threshold issue, such as intermediate evidentiary decisions, are not final for purposes of section 5900 and as a corollary should not be final under section 5950.
In Hughes v. Willig Freight Lines (1981) 46 Cal.Comp.Cases 685 (Hughes), the WCAB denied a petition for consideration of an order directing the exhumation and autopsy of a deceased worker. The WCAB found the order not "final" under section 5900, noting: "Even by applicant's view . . . the order for autopsy is one regulating the production or presentation of evidence, rather than determining substantive rights." (Id. at p. 688.) The WCAB also reasoned: "To allow delay for reconsideration and judicial review would, as a practical matter, make autopsy impossible in most, if not all, cases. This would completely undermine the legislative purpose." (Ibid.)
Unlike the order in Hughes, the order in the present case finding the testimony of an expert admissible under the discovery statute is not an order regulating the production or presentation of evidence but an order determining a substantive right of liability. In addition, an authoritative pretrial decision about the admissibility of expert testimony under the discovery statute will promote both efficiency and economy. If the expert testimony is not admissible, a pretrial decision will avoid the waste of a trial on the LeBoeuf issue. In our estimation, these characteristics of the WCAB's decision on reconsideration bring it within the ambit of appealability announced by Safeway and Maranian.
III.
Petitioners contend the WCAB's decision to admit the testimony of Sidhu runs afoul of section 5502, former subdivision (d)(3), which states: "If the claim is not resolved at the mandatory settlement conference, the parties shall file a pretrial conference statement noting the specific issues in dispute, each party's proposed permanent disability rating, and listing the exhibits, and disclosing witnesses. Disc
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