Discovery Cannot Be Left Open After Conference

This Estrada case did not deal with rehabilitation, but may be just as significant as the other recent Estrada case. This appellate decision deals with a workers’ compensation judge’s (WCJ) authority to allow additional discovery after a mandatory settlement conference.

In this case the applicant obtained an evaluation from a qualified medical examiner (QME). The applicant wished to rely on this and filed for an expedited hearing. Somehow, a mandatory settlement conference was set. The defendant objected to applicant’s QME exam. Defendant objected on the basis of Labor Code section 4628 for failure to state what was relied on in forming the QME’s opinion. The QME had also issued a one page report with no reference to records provided to the doctor. The WCJ overruled the defendant’s objection and left discovery open to obtain a supplemental report from applicant’s QME.

The QME submitted a one page supplemental report. The WCJ found temporary disability based on this report issued after the MSC. The WCJ did not rule on defendant’s objection.  The WCJ disallowed defendant’s medical report on the basis that defendant was not entitled to a rebuttal QME. The defendant petitioned for reconsideration. The Workers’ Compensation Appeals Board upheld the WCJ findings and award. The defendant filed for writ of review and the applicant did not respond.

The appellate court addressed section 5502, subdivision (d) (3). The section deals with the closure of discovery at the time of the mandatory settlement conference. “The bounds of discretion vested in the workers’ compensation judge for keeping discovery open after the mandatory settlement conference are defined in section 5502. Discovery closes at the time of the mandatory settlement conference as to all evidence except for which the proponent can demonstrate was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference.” In this situation the WCJ did not have discretion to allow a supplemental report.

The appellate court also indicated discovery could not be kept open in this case by giving a continuance since there was no showing of good cause for granting a continuance.

What the case teaches is that both sides should make sure they are prepared and ready to proceed at the mandatory settlement conference.

Case: Court of Sacramento V. W.C.A.B. (Estrada)

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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