PONCE v. WORKERS COMPENSATION APPEALS BOARD

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Court of Appeal, Second District, Division 1, California.

Francisco PONCE and Neurologic Orthopedic Associates Medical Group, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and Citation Insurance Company, Respondents.

No. B096936.

Decided: November 26, 1996

Kumetz & Glick, Fred J. Kumetz, Barbara A. Kumetz, Patricia Atkins, Los Angeles, CA, and Scott H. Byrd, Culver City, CA, for Petitioners. Miller & Folse and John W. Miller, Thousand Oaks, CA, for Respondents.

INTRODUCTION

Petitioner Francisco Ponce seeks a writ of review to compel respondent Workers' Compensation Appeals Board (WCAB) to vacate its opinion and order denying his petition for reconsideration and to consider medical reports submitted by petitioner.

FACTUAL AND PROCEDURAL BACKGROUND

Francisco Ponce (Ponce) worked for Gangi Brothers Packing Company in 1990; Gangi Brothers' workers' compensation insurance carrier was respondent Citation Insurance Company (Citation). In April 1990, Ponce injured his lower back at work; he injured his shoulder at work in May 1990. Gangi Brothers provided medical treatment for his injuries.

Ponce sought further treatment for his injuries in August 1992 from Neurologic Orthopedic Associates Medical Group (Neurologic Orthopedic). Neurologic Orthopedic prepared a final report on petitioner's condition on October 6, 1992. The report indicated Ponce had objective and subjective factors of permanent disability requiring work restrictions, and his condition was permanent and stationary.

Ponce sought workers' compensation benefits for his injuries. Neurologic Orthopedic filed a lien claim for its treatment of Ponce.

Citation had its own doctor, Earl F. Jordan, examine Ponce. Dr. Jordan prepared a report for Citation dated February 1, 1993. According to his report, by the end of May 1990, Ponce was permanent and stationary with no residual subjective complaints or objective factors of disability. Ponce obtained treatment from Neurologic Orthopedic over two years later after seeing an advertisement by them on television. In Dr. Jordan's view, Ponce obtained treatment either for a new injury or for the purpose of obtaining financial gain thereafter.

A mandatory settlement conference was set for September 7, 1993. Petitioner filed a mandatory settlement conference statement on September 1, 1993. At the conference, Citation objected to the admission of evidence and testimony on Ponce's behalf pursuant to Labor Code section 5502, subdivision (d)(3), based on Ponce's late filing of his mandatory settlement conference statement. The summary of settlement conference proceedings also indicates that, at the conference, discovery was closed.

Thereafter, in its memorandum trial brief, Citation claimed Ponce was precluded from entering any documentary or testimonial evidence on his behalf at the hearing due to his late filing of his mandatory settlement conference statement. Citation also objected to the admission of any reports obtained from Neurologic Orthopedic on the grounds the reports violated numerous Labor Code sections, including section 4628.

A hearing was held before Workers' Compensation Judge L. W. Warren on November 17, 1993. It was not completed at that time and was continued to February 10, 1994.

On November 29, Citation's attorneys served on Drs. Kaufman and Hill of Neurologic Orthopedic notices to appear and produce documents in lieu of subpoenas pursuant to Code of Civil Procedure section 1987. The doctors were to appear at the continued hearing on February 10, 1994 and to produce the requested documents at that time.

The doctors failed to appear at the hearing and Judge Warren requested an explanation from Ponce's attorney. He also continued the hearing to May 23, 1994. Four days later, the attorney wrote to Judge Warren indicating that his office had never received a copy of the notice to appear and produce documents. Thereafter, Citation petitioned the judge for an order striking all reports and records of Neurologic Orthopedic and canceling the May 23 hearing. This was based on the failure to file a timely mandatory settlement conference statement, the failure to appear and produce documents, and violation of Labor Code section 4628. Neurologic Orthopedic objected to the petition and Ponce requested that it be dismissed. On May 23, Judge Warren heard evidence regarding the failure to respond and took the matter under submission.

Thereafter, Judge Warren issued an opinion on decision and findings of fact. The judge granted Citation's request that Neurologic Orthopedic's reports be stricken because of the failure to appear and produce documents at the hearing and their failure to produce an acceptable explanation for that failure. That left in evidence the report of Dr. Jordan. Based on that report, the judge found Ponce did not sustain any temporary or permanent disability other than two weeks about the time of injury. The judge therefore denied Ponce's application for workers' compensation benefits.

Ponce filed a petition for reconsideration. He claimed the workers' compensation judge had violated Labor Code section 5502, subdivision (d)(3), by allowing Citation to conduct discovery and attempt to submit documentary evidence after the mandatory settlement conference. Neurologic Orthopedic also filed a petition for reconsideration. It claimed Citation waived its objection pursuant to Labor Code section 4628, subdivision (d), by failing to include the issue of section 4628 compliance at the mandatory settlement conference or prior to the hearing. This invalidated its later notice to appear and produce documents directed at Neurologic Orthopedic and the exclusion of Neurologic Orthopedic's evidence based on its failure to comply with the notice to appear and produce documents.

Judge Warren recommended to the Workers' Compensation Appeals Board (WCAB) that the petitions be granted. He explained that he had been suffering from a serious personal illness and was not able to address the complex issues raised in the petitions. He recommended that the case be returned to him for further study of the record and the merits of the petitions. On December 14, 1994, the WCAB granted the petitions for reconsideration and returned the case to Judge Warren for further proceedings.

On June 29, 1995, Judge Warren again granted Citation's request that Neurologic Orthopedic's evidence be stricken and ruled that Ponce was not entitled to workers' compensation benefits. He again based this ruling on the failure to appear and produce documents. He also noted that, in any event, the evidence could have been excluded based on Ponce's late filing of his mandatory settlement conference statement. Additionally, he disagreed with Neurologic Orthopedic's position regarding Labor Code section 4628, subdivision (d).

Ponce filed a petition for reconsideration with the WCAB. He raised the same basic issues that had been raised in the previous petitions for reconsideration. This time, Judge Warren recommended that the petition be denied. The WCAB agreed with the recommendation and denied the petition.

CONTENTIONS

I

Petitioners contend the WCAB misinterpreted Code of Civil Procedure section 1987 and therefore erred in permitting the striking of their medical reports.

II

Petitioners further contend a failure to comply with Code of Civil Procedure section 1987 does not justify a refusal to admit medical reports at a hearing.

III

Petitioners finally contend the notice to appear and produce documents violated Labor Code section 5502, subdivision (d)(3), in that it was an attempt to conduct discovery after the mandatory settlement conference.

DISCUSSION

Petitioners contend the WCAB misinterpreted Code of Civil Procedure section 1987 and therefore erred in permitting the striking of their medical reports. Additionally, a failure to comply with Code of Civil Procedure section 1987 does not justify a refusal to admit medical reports at a hearing. Moreover, the notice to appear and produce documents violated Labor Code section 5502, subdivision (d)(3), in that it was an attempt to conduct discovery after the mandatory settlement conference. We agree.

Code of Civil Procedure section 1987 (section 1987) provides for a notice to appear at trial and produce documents. It requires that the notice “state the exact materials or things desired.” (Subd. (c).) In this respect, it differs from discovery statutes, which allow requests for broad categories of documents and do not require that the exact documents desired be specified. (1 Wegner, Fairbank & Epstein, California Practice Guide, Civil Trials and Evidence (1994) § 1:115, p. 1-25.)

Citation's notice to appear and produce documents did not state the exact documents to be produced. Rather it listed broad categories of documents Citation desired, e.g., all published advertisements, all written communications to and from Ponce and his attorney, all documentation regarding any examination or treatment of Ponce, and all X-rays and laboratory reports pertaining to Ponce. Clearly, it was intended for discovery purposes and did not meet the requirements of section 1987, subdivision (c); it therefore was invalid.

Moreover, Labor Code section 5502, subdivision (d)(3), provides that if a “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. Discovery shall close on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference.” (Italics added.) The summary of settlement conference proceedings indicates that, at the conference, discovery was closed. Citation never made any showing that the materials requested in its notice to appear and produce documents were not available or could not have been discovered by the exercise of due diligence prior to the mandatory settlement conference. Accordingly, Citation's attempt at discovery in the guise of a notice to appear and produce documents pursuant to section 1987 was improper.

It follows that the workers' compensation judge's imposition of a sanction in the form of exclusion of evidence for Neurologic Orthopedic's failure to comply with the invalid notice was erroneous. (Cf. Amoco Chemical Co. v. Certain Underwriters at Lloyd's of London (1995) 34 Cal.App.4th 554, 559, 562.) Ponce's and Neurologic Orthopedic's rights to a fair hearing (Fox v. Workers' Comp. Appeals Bd. (1992) 4 Cal.App.4th 1196, 1204) require that their evidence not be stricken based on Neurologic Orthopedic's failure to respond to an invalid notice to appear and produce documents.

Respondent WCAB's September 18, 1995 order denying reconsideration is annulled and the matter is remanded for further proceedings consistent with this opinion.

SPENCER, Presiding Justice.

MIRIAM A. VOGEL and MASTERSON, JJ., concur.