WCAB Denies Defendant’s Petition for Removal Over Discovery Denial

In a 2023 panel case Richard Beck v. Cal Trans, State Compensation Insurance Fund, 2023 Cal. Wrk. Comp. P.D. LEXIS 248, involving a 58-year-old heavy equipment operator who suffered a hand and wrist injury in 2012, the Workers’ Compensation Appeals Board (WCAB) denied the defendant’s petition for the extraordinary remedy of removal after a judge denied keeping discovery open.

The key events leading up to the petition were:

  • In September 2022, the parties received the report from the Agreed Medical Evaluator, Dr. Brourman.
  • Over the next 9 months, the defense did not file any Objection to Dr. Brourman’s report.
  • In June 2023, the applicant filed for a Mandatory Settlement Conference (MSC).
  • One week before the June 29, 2023 MSC, the defense scheduled Dr. Brourman’s deposition for October 2023.
  • At the MSC, the judge closed most discovery except allowing the parties to obtain a disability rating.

The defendant’s petition argued that the order closing most discovery at the MSC violated its Fifth and Sixth Amendment Constitutional Rights by being arbitrary, unreasonable, and exceeding the judge’s authority.

However, the WCAB panel denied the petition, finding the defendant failed to meet the extremely high bar for removal, which requires:

  • Showing substantial prejudice or irreparable harm.
  • Demonstrating reconsideration would be an inadequate remedy.

The panel cited several key facts undermining the defendant’s petition:

  • The defense never objected to Dr. Brourman’s report for 9 months after receiving it.
  • The deposition was not scheduled until after the MSC was set.
  • No substantive issues with Dr. Brourman’s analysis were identified.

Since the defendant did not show that the order closing discovery met the high standard for an extraordinary remedy, the WCAB denied removal. However, the defendant can still pursue the regular reconsideration process if it receives an adverse final decision.

This decision highlights the high bar for the rarely granted removal remedy in California workers’ compensation cases, especially when seeking to overturn discovery rulings. Defendants must rigorously document any alleged due process violations and make diligent efforts to complete discovery to preserve substantive issues for reconsideration.

At Yrulegui & Roberts, our Sacramento workers’ compensation defense lawyers deal with discovery disputes daily. Call us now or contact us online to set up your completely confidential case review. We defend workers’ compensation cases in Sacramento and all across Central California.