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WCAB Limits Scope of Discovery

WCAB Limits Scope of Discovery

By Kia Myers

Recently, the WCAB issued a decision limiting the scope of discovery of Defendant’s subpoena for medical records. In Gildo Beitia v. City of Oakland, 2018 Cal. Wrk. Comp. P.D. 228, the WCAB denied Defendant’s Petition for Removal of WCJ’s Ordering Limiting the Scope of its subpoena for medical records in a split decision. Defendant argued that by issuing the order without a hearing Defendant’s right to due process was denied. The WCAB disagreed.

In Beitia, Applicant filed a specific injury claim on September 3, 2015 involving his back and spine and included hypertension and weight gain as a compensable consequence. Defendant issued subpoenas for Kaiser and Advance Physical Medicine and Rehabilitation Group (Advance Physical Medicine). On September 19, 2017 applicant filed a Motion to Quash defendant’s subpoenas for any and all medical records from Kaiser and Advance Physical Medicine. The WCJ issued the Order limiting the scope of the subpoenas to injuries filed in the claim (back, spine, weight gain, and hypertension) on November 6, 2017.

In its decision the WCAB appear to agree that the subpoena was overbroad and therefore was not persuaded that substantial prejudice would result from the denial of the Petition for Removal. The WCAB opined that there are other forms of discovery to determine if additional records are necessary, such as the deposition of a treating physician or subpoenaing of additional records.

What is not clear from the decision is whether applicant’s deposition has been taken. If it had not Defendant could question applicant about their medical history. Was there a medical condition that applicant did not want revealed?

As a defense attorney, I have to own up to my immediate suspiciousness about this case. My thought is what is the applicant trying to hide? When I put myself in applicant’s position, I can understand why one would be concerned about one’s entire medical history being released to the insurance company. Having your medical records released could feel extremely invasive at worst, and unnerving at best. However, when one puts their medical condition at issue, it opens the discovery into one’s relative medical history.

Applicant has claimed compensable consequences of weight gain and hypertension. A relevant medical records should be reviewed to determine causation. Weight gain and hypertension are conditions that could have various causes, including other medical conditions or medications.

Let’s consider hypothyroidism, a condition that is known to cause weight gain. What if applicant was diagnosed with hypothyroidism and the condition was possibly the cause of applicant’s weight gain? Based on the Order limiting, it is likely that records related to this condition may not be released. If applicant fails to disclose the thyroid condition, would Defendant have a basis for additional discovery such as a physician deposition to support a release of the records? What other options would Defendant really have to support the release of records of other possibly relevant medical conditions?

As the dissent noted, it is necessary for the doctor to review all available medical records which might impact the issue of weight gain and hypertension. Without the complete records, an evaluating physician would not have all of the relevant information to make a fully informed opinion. Kia Myers Holsey is an associate attorney at Armstrong Law Firm in San Jose, California.

© Copyright 2018 Kia Myers. All rights reserved.



reference this article was written for the CLA eNews, Sept 2018 edition



By: William J. Armstrong, Esq.


The WCAB is once again amending their Rules, even though they amended and renumbered them as recently as 1/1/15.

The new proposals include Rule 10498.

For reasons which are not clear,  even when there is no application filed, this proposed Rule will preclude a claims organization  from taking  credit for any  overpayment of  benefits  without an Order from the WCAB.
As an example, when TTD is being paid and we receive the MMI/P&S report of an AME, QME or PTP some 30 days after an evaluation, during which time TTD continued, we will be unable to take credit for the TTD overpayment against any PD advance requirement, or even the ultimate PD, without an order from a WCJ specifically allowing this credit. For those of us who regularly appear in Department 5 in San Jose or some of the Oakland hearing rooms, this new and proposed rule is troublesome in many ways.

When no application is filed, this provision could require the filing of an application and a credit petition if we want to assert the credit at that point. Otherwise, unless the new provisions of Section 4656 can be applied, PD advances would need to be made even though there may be a $3,000 to $4,000 overpayment of TTD.

As we all know, EAMS makes it problematic that action is taken on a petition filed without a DOR. If we are forced to that step, and the workers is not represented, filing the DOR triggers the attorney fee provisions of SB863.

Our system has existed and by and large operated well, on these situations, without this Rule. This could be troublesome if the WCAB ultimately adopts the rule.

We will keep you updated.