NEUROLOGIC ORTHOPEDIC ASSOCIATES MEDICAL GROUP, et al., Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD, Fedco and Sedgewick James Adjusting, Respondents.
This writ proceeding stems from a decision of a workers' compensation judge (“WCJ”), upheld by the Workers' Compensation Appeals Board (“the Board”), to deny the lien claims of certain health care providers and to order said providers to reimburse money previously paid to them. Petitioners Neurologic Orthopedic Associates Medical Group, Bristol Diagnostics and Crown Imaging Associates (collectively, the “lien claimants”) challenge this ruling and ask this court to (1) order the Board to vacate its order denying their petition for reconsideration and for disqualification of the WCJ who ruled on their claims and (2) order the matter reassigned to another WCJ for another hearing.
The lien claimants contend they were denied due process of law with respect to the subject hearing before the WCJ because (1) they were given little opportunity to prepare for vital issues adjudicated at the hearing; (2) certain deposition testimony was admitted by the judge; (3) they were denied a continuance; and (4) the WCJ was biased against them. Additionally, lien claimants contend the Board failed to specify adequate reasons for its decision, the decision is not supported by the Board's findings, and said findings are not supported by substantial evidence.
We find lien claimants should be given a new hearing before a different WCJ and we reverse the challenged orders.
BACKGROUND OF THE CASE
Workers' compensation applicant Ramona Diaz (“Diaz”) suffered an admitted injury in June 1989 during her employment with respondent Fedco.1 Lien claimants evaluated and treated Diaz, beginning in October 1989 and ending in April 1990. They submitted their bills and liens. Diaz's case was settled in May 1992 by an order from the Board approving compromise and release dated May 19, 1992. Pursuant to the order, Fedco was to pay or adjust all liens and the Board reserved jurisdiction to resolve disputes regarding the liens.
In March 1990, petitioner Crown Imaging Associates (“Crown Imaging”) was paid $2,325. In August 1990, petitioner Neurologic Orthopedic Associates Medical Group (“Neurologic Orthopedic”) was paid $1,500 of its charges, with Fedco objecting to the balance of those charges. In a letter from Fedco's attorneys to lien claimants in April 1993, the attorneys indicated they considered the unpaid claims of lien claimants to be excessive. The claims totaled over $8,000. Subsequent letters in 1993 from Fedco's attorney made the same contention and offered settlement figures. In December 1993, the attorneys wrote saying the latest offer to settle was withdrawn. No reason was given for the withdrawal. By that time, trial was set for March 1994. Lien claimants had, in January 1993, filed a declaration stating they were ready to proceed to trial on their lien claims.
The following events took place between the time Fedco initially indicated it would only pay some of lien claimants' claims, and the hearing on said claims. On October 13, 1993, Fedco's attorneys took a deposition in an unrelated workers' compensation case in which Fedco was not the employer but in which lien claimants had provided services to the workers' compensation applicant. The deponent was a Patricia Lee Smith. She had previously worked as a word processor with a transcribing service that lien claimants had used in previous years. The focus of the deposition was lien claimants' practices regarding production of medical reports, including such things as who dictated the reports and who signed them,2 and the use of computer macros in the reports. No one appeared at the deposition on behalf of lien claimants. A secretary at the law firm used by Fedco stated (not under penalty of perjury) in the deposition record that she had telephoned the supervisor of Neurologic Orthopedic's legal department an hour before the deposition began and informed him it was going to commence. Fedco's attorney stated on the record at the deposition (but not under penalty of perjury) that lien claimant Neurologic Orthopedic was given written notice of the depositions. Attached to Fedco's answer to lien claimants' petition to this court is a document which states lien claimants were served with notice of the deposition. Lien claimants deny receiving it and also challenge the validity of the document itself as a means of providing notice. This challenge is discussed infra.
On February 14, 1994, Fedco's attorney's took the deposition of Patrick Case, D.C. Case was a chiropractor employed by Neurologic Orthopedic Associates from 1989 to 1993. Again, the deposition was taken in connection with an unrelated workers' compensation case in which Fedco was not the employer. Again, lien claimants were not represented at this deposition. Case testified to lien claimants' practice of having chiropractors examine workers' compensation claimants and then having a medical doctor examine them. He stated the chiropractors dictated most of the reports; however he also stated that some of the medical doctors preferred to do their own. To its answer to lien claimants' petition to this court, Fedco attached a document which states lien claimants were served with notice of Case's deposition. Lien claimants deny receiving it and they challenge the validity of the document. That challenge is also discussed infra.
On March 18, 1994, which was just six days prior to trial, Fedco filed and served a petition asking the Board to totally disallow lien claimants' claims and to order them to make restitution of any amounts already paid by Fedco. In its petition (hereinafter, the “pre-trial petition”), Fedco alleged the reports, bills and liens of lien claimants do not “constitute valid medical-legal costs as there has not been compliance with Labor Code Sections 4600, 4061, 4062, 4620, 4621, 4628 or Section 10978 of the Board's rules of practice and procedure.”3 The pre-trial petition also charged that lien claimants were commonly owned and referrals by Neurologic Orthopedic to claimant Bristol Diagnostics violated section 654.2 of the Business and Professions Code because patients were not told of the common ownership and were not told they could go elsewhere for their diagnostic treatment.
Additionally, Fedco's pre-trial petition charged that the “billing for the medical reports in this matter is improper in that the reports were prepared by chiropractors, [but were signed by medical doctors,] and [were] billed as orthopedics/neurologic reports.” Fedco charged “Neurologic Orthopedic Associates held out the medical reports in this matter as being prepared by medical doctors, who also performed the medical evaluations, with chiropractors acting simply as physicians' assistants [but] the notebook from [the medical transcription service], the diskettes in this matter, the depositions of Pat Smith and Patrick Case, all indicate that the involvement by the medical doctors is minimal, with the evaluations performed and the reports prepared mainly by the chiropractors, and the therapy provided by unlicensed therapists.” Fedco also asserted the reports are prepared using boiler plate paragraphs “with little dictation from the actual dictator.”4
Thus, Fedco had changed its whole theory of defense to lien claimants' liens in this case. What had previously been a challenge solely on the basis of the amount of the liens was now a charge of violations of the Labor Code and, arguably, a charge of fraud.5 (Indeed, at the subsequent lien proceedings, Fedco argued that the amounts it had previously paid to lien claimants were procured by fraud.) Additionally, the charge of common ownership between lien claimants was a new allegation of wrongdoing.
Fedco's pre-trial petition also challenged the number of assessments performed by claimant Neurologic Orthopedic. It alleged Diaz was initially evaluated on October 19, 1989, with a neurological exam by Neurologic Orthopedic and said claimant charged $975 for the evaluation and report and another $620 in other services. Additionally, there were nine reevaluations; and on March 21, 1990, there was a comprehensive orthopedic consultation, which was also billed at $975. Additionally, there was the permanent and stationary workers' compensation reassessment. The final reevaluation took place on April 20, 1990.
The proceedings on lien claimants' liens were held March 24, 1994. Fedco was represented by three attorneys. Lien claimants were represented by a non-attorney, Rick Solorio. At the outset of the trial, Solorio objected to the court considering Fedco's petition. He argued that the issues raised by Fedco's pre-trial petition “were not the issues of trial today” and further argued he was not given ample time to respond to the petition and the attorney who would normally represent lien claimants “in this type of situation” was not present. He also objected to the fact that Fedco had never honored an April 23, 1993 request for production of documents made under rule 10609.6 Solorio requested a continuance “so that we can prepare properly.” The court refused to grant the continuance saying that lien claimants had known for over a year that Fedco was contesting the lien claims and further saying that lien claimants had themselves filed a declaration of readiness in January 1993. At least twice during the proceedings, Solorio reiterated his objection to the pursuit of the issues raised for the first time in Fedco's pretrial petition to disallow lien claims and obtain reimbursement.
Matt Grippi, a chiropractor who had previously worked at Neurologic Orthopedic, testified as an expert for Fedco without objection from Mr. Solorio. Although not called as a witness under Evidence Code section 776, Fedco's three attorneys examined Grippi in a free-wheeling style. Grippi acknowledged the records show he examined Ramona Diaz. However, he admitted to having absolutely no independent recollection of seeing her. His testimony focused on general procedures at lien claimants' clinics.
Grippi stated that the chiropractors at Neurologic Orthopedic usually dictated the medical reports. The medical doctors signed them, although for awhile, the chiropractors were also signing them. It was his experience that a doctor who signed a report had actually seen the patient who was the subject of the report. In dictating reports on patients, he would use what could be described as an “exam template,” with preformed paragraphs for various matters to be included in a report, and to those paragraphs he would add the information unique to the particular patient, such as range of motion and abnormal findings. He stated he did “quite a lot” of individualized dictation. He stated that a report for an initial medical evaluation would take him 20 to 30 minutes to dictate, using the template method. He estimated he dictated about 20 insurance reports per week. He was paid $15 for each report he dictated. That was in addition to his salary. He stated he was also on a bonus system which was based on revenues when he worked for Neurologic Orthopedic.
Grippi described the process of how patients were seen. For their initial visit to Neurologic Orthopedic, patients were interviewed by “historians,” persons who took their history. They were then examined by chiropractors, who would make a diagnosis and treatment recommendation. Then the patient was seen by a medical doctor. Generally, the medical doctor would spend less time with the patient than the chiropractor and would do a limited exam, although sometimes they would do a more comprehensive exam. The patient usually did not see a medical doctor at an interim visit, only the chiropractor. Grippi stated he never felt he was doing anything wrong when he worked at Neurologic Orthopedic.
After Fedco's attorneys finished questioning Grippi, Solorio requested his testimony be stricken “since the trial was not set on Dr. Grippi's appearance today.”7 That request was denied. The judge indicated he would delay submission of the matter until a transcript of the proceedings had been obtained.
On May 6, 1994, lien claimants submitted a motion to the Board for further hearing in the case. The motion was based on due process grounds, with lien claimants asserting (1) they had not been competently represented at the lien proceedings on March 24 since no attorney was there to represent them; (2) they had not been served by Fedco with requested documentary evidence;8 (3) they had not yet cross-examined Dr. Grippi; (4) they had not yet presented rebuttal and documentary evidence; and (5) they had not had the opportunity to object to the admission into evidence of the deposition transcripts of Patricia Smith and Patrick Case nor to object to testimony of Dr. Grippi. These assertions were grounded on the short notice they were given of the allegations made in Fedco's pre-trial petition. However, on that very same day, May 6, 1994, the workers' compensation judge filed and served his findings and order. He disallowed the outstanding claims of the lien claimants and he ordered Crown Imaging and Neurologic Orthopedic to reimburse Fedco all sums previously paid in this case.
In his opinion, the judge stated it reviewed the transcripts of Smith, Case and Grippi. He specifically stated he found Grippi credible. He stated the medical reports were in violation of Labor Code sections 4600, 4061, 4062, 4620, 4621, 4628 and rule 10978 of the rules of practice and procedure “as they existed at the time of the preparation of the reports in this case[.]” Additionally, the judge determined the reports “(1) were not prepared pursuant to an examination by the M.D. who signed the reports and (2) were of such a ‘boiler plate’ nature as to be worthless in evaluating the disability suffered by [Diaz].” The opinion goes on to state: “The reports were produced in such a manner as to imply that they were the product of a careful and rigorous medical examination, when, in fact, to the extent an examination was conducted, it was done by the chiropractor. Thereafter, the reports were ‘dictated’ by a chiropractor, though only in the sense that the chiropractor would enter a few items into a computer program outline. Once prepared, the report was signed by a M.D., with or without some mention being made of the chiropractor.” [¶] The practice, may, most charitably, be described as disengenuous [sic], though such a term as deceit does come to mind.”
Thereafter, lien claimants petitioned for reconsideration of this ruling, vacation of the May 6, 1994 order, and disqualification of the workers' compensation judge. In addition to the grounds urged in their motion for further hearing, lien claimants contended (1) the WCJ had prejudged the issues, (2) the WCJ had acted without, or in excess of, his powers, (3) the evidence does not justify the findings of the WCJ, and (4) the findings do not support the decision of the WCJ. Regarding the contention that the WCJ was biased against them, lien claimants presented two pieces of evidence. One was a declaration from a man who appeared at a proceeding in another case as a representative on behalf of lien claimants. He states that upon disclosing to the court that he was representing lien claimants, the same WCJ stated to him: “Where is your bell like the lepers had, crying our, we're good not bad.” The declarant does not disclose when this remark was made by the judge or what case it was made in. The other piece of evidence was a ruling made by the WCJ on a motion for reconsideration in another case. The ruling is dated February 22, 1994, and thus was made prior to the trial in this case. In his ruling, the judge stated in part: “Lien Claimant, Neurologic Orthopedic associates (apparently speaking for its panoply of henchmen), has timely petitioned from the Order of 1-14-94 which disallowed its lien ․”
In his report and recommendation to the Board regarding lien claimants' petition for rehearing, the WCJ recommended the Board deny the petition. A portion of his report states: “The lien claimant has filed a lengthy screed, alleging, in essence, that it should not be held to its declaration under penalty of perjury in the Declaration of Readiness, that they were prepared to go to trial, and that it was the WCJ's fault that they had chosen a hearing representative, rather than an attorney, to represent them. Inferentially, it seems to be arguing that any defense to their liens was, somehow, immoral and unconstitutional. [¶] The WCJ does not concur; these lien claimants have been playing in the fast lane for many years; they know the rules of the game. They may not plead their collective bellies, by asking the Board to tell them when they are in for a spirited defense, for that, at bottom is what they are asking.”
CONTENTIONS ON APPEAL
As the basis for their petition for review, lien claimants assert the following:
1. They were denied their rights to a fair trial, and therefore to due process of law, when the WCJ denied their request for a continuance to meet allegations, raised for the first time in Fedco's pre-trial petition, that lien claimants' liens do not constitute valid medical-legal costs, because the liens fail to comply with portions of the Labor Code and Business and Professions Code in that they are (a) for unnecessary procedures and examinations, (b) based on medical reports signed by medical doctors but dictated by chiropractors, (c) based on medical reports which contain computer generated, pre-set paragraphs and contain little dictation by the chiropractors, and (d) the result of referrals to medical facilities in which the referring doctor has a significant beneficial interest and Diaz was not informed of this interest.
2. The WCJ further denied their right to due process when he refused to grant them a further hearing so that they could cross-examine Dr. Grippi and present evidence on the issue of whether their lien claims stem from valid medical procedures, referrals, and reports.
3. Lien claimants were denied their right to cross-examine witnesses when the WCJ admitted into evidence transcripts of depositions for which lien claimants were not noticed or present.
4. The Board failed to specify adequate reasons for its decision; the decision is not supported by substantial evidence; and the decision is not supported by the Board's findings.
5. The WCJ lacked impartiality, which further denied lien claimants their due process rights, and when remanded for a new hearing, this case should be assigned to a new WCJ.
1. Due Process Right to Adequate Notice of Charges and Witnesses
Recently, in Beverly Hills Multispecialty Group, Inc. v. Workers' Comp. Appeals Bd., supra, 26 Cal.App.4th 789 (“Beverly Hills Multispecialty Group ”), we had occasion to address similar allegations of denial of due process. There, as here, a lien claimant asserted its rights had been violated when allegations of fraud were made against it without sufficient notice for it to be able to meet the allegations at a hearing. We held that under due process of law considerations, a medical or medical-legal claimant must be given notice, prior to the hearing on the applicant's case, that allegations of fraud on the part of the applicant or lien claimant are to be addressed in the trial. (Id. at pp. 803-804.) The lien claimant must be given an opportunity to prepare to meet the allegations against it. “Thus, due process requires that a lien claimant be informed of the scope and purpose of a hearing that may affect its rights or liabilities. [Citation.]” (Ibid.)
In the instant case, the record shows that up to six days before the hearing on the lien claims, the basis of Fedco's stated objection to the lien claimants' liens was the amounts claimed by them. It was only six days before the lien proceedings that Fedco showed its hand and informed the WCJ and lien claimants that it would assert the total invalidity of lien claimants claims. A right to know the issues to be tried obviously includes the right to sufficient notice. Six days is not sufficient notice to enable lien claimants to meet the issues raised by Fedco's pre-trial petition by deciding how to confront evidence against them and what evidence to use in support of their case.
Lien claimants' position also finds support in standard civil procedure practice rules which govern changing a litigant's theory of its case. Section 473 of the Code of Civil Procedure permits a trial court to allow an amendment of a pleading to add a cause of action “upon any terms as may be just” including postponement of the trial, if “the amendment renders it necessary.” Obviously, changing a defense from excessive lien claims to totally invalid claims due to alleged fraud requires giving the lien claimant an extension of time to meet the new defense. Obviously, when lien claimants filed their declaration of readiness, they declared they were ready to try the excessive claims issue, not the new issues. We think lien claimants' assertion that they were subjected to “trial by ambush” is an apt description of what happened to them.
We reject the notion lien claimants have no cause to complain since it was their choice to send a lay representative to the hearing rather than an attorney. What they sought at the hearing was a continuance; that is something to which they were entitled and a lay representative was capable of presenting the request to the WCJ. Further, even if an attorney had been present, that would not negate the fact that due process was ignored when the lien claimants were required to answer the new charges against them upon only six days notice. No party whether represented by counsel or not should be expected to meet such a drastic amendment of the issues on just six days notice. The assault upon lien claimants' due process rights continued when the WCJ turned down their post-hearing request for a further hearing.
In its answer to lien claimants' petition to this court, Fedco states: “[Lien claimants were], on multiple occasions, put on notice of FEDCO's allegations against it. FEDCO, at multiple Boards, served its Petition to Disallow ․ or similar petitions also seeking restitution on [lien claimants].” This assertion is made without citation to supporting evidence. However, assuming arguendo it is true, the fact that lien claimants were advised in other cases that their liens were being challenged by Fedco in those cases on grounds other than excessive charges does not constitute sufficient proof that lien claimants knew, prior to six days before trial in this case, that such a challenge was being made in this case. Quite the opposite. Fedco sent letters to lien claimants throughout 1993 objecting only to the size of the outstanding balance of lien claimants' liens and offering to settle the claims for a specific amount. In its last letter, in December 1993, Fedco withdrew the offer of settlement but never indicated other issues were to be raised at the lien proceedings. Thus, even if lien claimants were being challenged in other workers' compensation cases on the same grounds raised in the pre-trial petition that was filed in this case, the very fact that Fedco's letters only addressed the amount lien claimants sought in this case can appropriately be characterized as a situation which lulled lien claimants into believing that only the amount of their claims would be addressed at the lien proceeding. In short, it appears lien claimants were sandbagged by Fedco on what issues would be raised in this case.
Additionally, it is without consequence that lien claimants' lay representative, Mr. Solorio, (1) did not object to Fedco's request to have its pre-trial petition admitted into evidence and (2) voiced no objection to Mr. Grippi being examined as an expert witness. The issue here is adequate notice of a major change of defense, and the actions of a non-attorney will not divert our attention from that. Further, Solorio objected to the hearing going forward at all.
We also reject the contention that Solorio “participated” throughout the trial. Other than strenuously voicing his objection, on several grounds, to having the hearing that day, he had little to say.11 It was Fedco's show all the way. Additionally, we find no refuge for Fedco in the fact lien claimants did “not take any measures before trial to have the matter taken off calendar or continued.” First, Fedco is hardly in a position to complain about timing. Second, given the WCJ's position that lien claimants should have to go forward since they filed a declaration of readiness, presenting a pre-hearing objection to having the proceedings take place on the appointed day would most likely have fallen on deaf ears.
Lastly, we agree that lien claimants were, in effect, prevented from cross-examining Dr. Grippi. He was apparently not designated as a witness, and they had no attorney at the lien proceedings to do the cross-examination even if he had been designated. Further, we suspect that if their lay representative had cross-examined Dr. Grippi, Fedco would assert to this court that having taken the opportunity to participate in the lien hearing, lien claimants waived their objection to insufficient notice.
2. Admission of the Deposition Testimony
The right to cross-examine a witness is a fundamental right of due process. (Beverly Hills Multispecialty Group, supra, 26 Cal.App.4th at pp. 804-805.) The WCJ specifically stated in his written decision he reviewed the deposition transcripts of Patrick Case and Patricia Smith. These were depositions taken in other workers' compensation cases, where lien claimants were not represented at the depositions and thus did not cross-examine the deponents. Lien claimants assert that the documents which Fedco has submitted to this court to support its assertion that lien claimants were notified of Smith's and Case's depositions (1) were not received by them and (2) do not comply with law. While we cannot judge the former contention, the latter is appropriate. By way of example, the “proof of service” on lien claimants for Smith's deposition is not signed under penalty of perjury. The deposition notice given for Case's deposition does not list his address and telephone number (Code Civ. Proc., § 2025, subd. (d)).
Additionally, nothing in the record shows Fedco complied with Evidence Code section 1291, which deals with the “former testimony” exception to the hearsay rule, in seeking to have the Smith and Case deposition transcripts admitted into evidence. Section 1291 requires the party against whom deposition testimony is offered to have had the right and opportunity to cross-examine the deponent. Further, section 1291 requires that the deponent not be available to be a witness at the hearing at which the deposition transcript is offered. No showing was made by Fedco of Smith's and Case's unavailability.
Lastly, the deposition testimony holds the same problem as Dr. Grippi's testimony--the generalized connection between their testimony and the lien claims in this case. Grippi did not remember treating Diaz. Smith is not shown to have transcribed reports for this case. Case is also not shown to have a connection to this case. Yet, the entirety of the claims made by lien claimants in this case is challenged on the basis of their testimony depicting the way things were generally done by lien claimants in handling examinations and reports, not on what happened in this particular case. Allowing such loose evidence would mean that challenges such as Fedco makes here would never have to be customized to any particular case in which Fedco sought to use them.
3. Sufficiency of the Evidence and the Board's Reasons and Findings
Because lien claimants' due process rights were violated in this case, the Board's decision to deny reconsideration and the order of the WCJ disallowing the outstanding liens of the lien claimants and ordering them to reimburse Fedco must be annulled and the matter remanded to the Board for a new hearing. Therefore, it is not necessary for us to consider lien claimants' contentions regarding whether the evidence, reasons, and findings are sufficient to support the decisions of the WCJ and the Board.
Nonetheless, we do note the following. In his opinion, the WCJ stated lien claimants' medical reports violated certain sections of the Labor Code. He mentioned sections 4061, 4062, and 4628. However, these sections apply only to workers injured on or after January 1, 1990, and are thus not applicable here. Section 4600 was also mentioned. That section governs responsibilities of the employer and other matters, none of which we perceive as being applicable to lien claimants' medical reports. The WCJ also mentioned rule 10978, which has been repealed. It bore the same title as current section 10606--“Physicians' Reports as Evidence.” Section 10606 directs that medicallegal reports must comply with Labor Code section 4628; however, as noted, that section applies only to workers injured on or after January 1, 1990 and is therefore not applicable here.
4. Assignment of Case to New WCJ
Lien claimants request we order the Board to assign this case to a new WCJ upon remand. It appears that would be best. The record shows the WCJ who handled this case was, to put it charitably, negative about lien claimants per se, not just about their claims in this particular case. Fedco asserts it is not unusual for a judge to be negative about persons committing fraud. The problem with the assertion is that it assumes a fact (fraud) which was not adjudicated in a hearing where due process prevailed. Further, the written remark made by the WCJ on February 22, 1994, in another case, preceded the lien proceedings in this case. In the remark, he referred to Neurologic Orthopedic as “apparently speaking for its panoply of henchmen.” This is an example of judicial intemperance sufficient to raise at least the appearance of bias.
The order of the Board denying reconsideration is annulled. The order of the WCJ made May 6, 1994 is annulled. The cause is remanded for further proceedings consistent with the views expressed herein.
1. The respondents in this writ proceeding are Fedco, Sedgwick James Adjusting, and the Board. Fedco and Sedgwick James Adjusting will be referred to collectively herein as “Fedco.” Fedco is self-insured for workers' compensation insurance, and adjustment of claims against Fedco is provided by Sedgwick James Adjusting.
2. Although we make no specific finding on this, apparently the reports were, for the most part, dictated by chiropractors and signed by medical doctors until a change in the law required the chiropractor to also sign them.
3. Unless otherwise indicated, all statutory references herein are to the Labor Code and all references to rules are to the Board's rules of practice and procedure.
4. Section 4628 provides that the physician who signs a “medical-legal” report must be the person who examines the workers' compensation patient and participates in the nonclerical preparation of the report. However, section 4628 is not applicable to injuries which occurred prior to January 1, 1990; hence, it is not applicable to this case.“[A] medical-legal expense means any costs and expenses incurred by or on behalf of any party, the administrative director, the board, or a referee for X-rays, laboratory fees, other diagnostic tests, medical reports, medical testimony, and, as needed, interpreter's fees, for the purpose of proving or disproving a contested claim.” (§ 4620, subd. (a).)According to Fedco's pre-trial petition, of the $6,770 lien of Neurologic Orthopedic, $4,295 is “medical-legal.”
5. Despite this profound alteration of the issues to be addressed at the lien proceedings, Fedco, in its answer to lien claimants petition to this court, characterizes its pre-trial petition as a “trial brief” and asserts it was entitled to file this “brief.”
6. Rule 10609 states: “Copies of all physicians' reports shall be served on lien claimants whose liens for medical or unemployment compensation disability benefits are proposed to be reduced or disallowed. Such service shall be made not later than the time such reduction or disallowance is proposed.” (Emphasis added.)Lien claimants' April 23, 1993 discovery letter to Fedco was broader in the scope of its request than rule 10609. It stated in part: “You are requested to serve lien claimant with a copy of all documentary evidence you propose to offer in support of your claim to have the claim for reimbursement for medical/legal or treatment costs reduced or disallowed, including depositions, ․” (Emphasis added.)At the lien proceedings, when Mr. Solorio objected that Fedco had not served the documents requested in the April 23, 1993 letter, one of Fedco's attorneys stated: “[W]e take the position that none of the materials that are being requested [by lien claimants] are going to be submitted into documentary evidence today. Therefore, we felt there was no need to serve them.” Solorio again objected to not having the documents and deposition transcripts. The WCJ responded that no one was going to introduce the medicals. Solorio stated it was still important to lien claimants to examine the documents. The WCJ asked Solorio what he would do with them. Solorio answered: “I don't know until I can see them.”Fedco's representation that none of the materials requested in lien claimants' letter would be introduced into evidence was patently false. Fedco submitted into evidence its pre-trial petition, and attached to it was a series of documents and deposition transcripts which the petition asserted supported Fedco's position that all of lien claimants' liens should be disallowed and monies already paid to lien claimants should be reimbursed to Fedco. These are now part of the record. Further, rule 10601 requires that written evidence to be offered in place of oral evidence should be served at least 20 days before the hearing. However, the deposition transcripts relied upon by Fedco were apparently never served on lien claimants.
7. Apparently, lien claimants were not given notice that Dr. Grippi would be a witness for Fedco at the lien proceedings.
8. Lien claimants invite this court to address the question whether they have a right to conduct discovery. In Beverly Hills Multispecialty Group, Inc. v. Workers' Comp. Appeals Bd. (1994) 26 Cal.App.4th 789, we declined a similar invitation, saying the issue was not squarely before us because the lien claimant had suffered no order denying it discovery. (Id. at p. 796, fn. 10.) In the instant case, lien claimants assert that the WCJ's order denying them the opportunity for a further hearing, (said further hearing to be based in part on Fedco's not having produced documents), is, in effect, an order denying them discovery. However, we perceive the denial of a further hearing to be based on the WCJ's opinion that having filed a declaration of readiness, lien claimants had no cause to claim that they needed more time or discovery before they would be ready to meet Fedco's defenses. Upon remand of this case, lien claimants can present their position regarding any needed documents to the WCJ, who will then either grant an order for discovery or deny it in whole or in part. Then, the issue will be ripe for appellate review should either side feel such review is necessary.
9. The Board's order denying reconsideration and denying disqualification states in part: “We have considered the allegations of the Petition for Reconsideration and the contents of the workers' compensation judge's Opinion on Decision and the Report and Recommendation on Petition for Reconsideration. Based on our review of the record, and for the reasons stated by the workers' compensation judge, which we adopt and incorporate, we will deny reconsideration. [¶] We see no basis in the record to disqualify the WCJ assigned to this case, and will deny the petition for disqualification.”
10. California Rules of Court, rule 57 governs writ review of workers' compensation appeals board cases. It provides for a petition to be filed by the petitioner, an answer which may be filed by the Board and/or by any real party in interest if they so choose, and a reply to the answer which may be filed by the petitioner. In addition to its answer, Fedco has filed a “response” to lien claimants' reply; and lien claimants have filed a “reply” to Fedco's “response” to their first reply. We have not considered these two extra pleadings, nor any documents attached to them. They were not requested by this court, nor were they filed with advance permission. This is a straightforward case which needs no additional pleadings.
11. After Solorio repeatedly voiced objection to the case proceeding that day and repeatedly stated the reasons for the objection, the WCJ asked Solorio: “You are declining to pursue the case?” Solorio responded: “Yes, your honor.” We find no waiver here, given the predicament with which Solorio was faced.
CROSKEY, Associate Justice.
KLEIN, P.J., and ANN ALDRICH, J., concur.