MYRICK ENTERPRISES v. WORKERS COMPENSATION APPEALS BOARD (1984)

The Workers' Compensation Appeals Board (WCAB) found that Richard D. Brown sustained a permanent partial disability in the course of his employment with petitioner, Myrick Enterprises, and awarded him benefits.   We issued a writ of review to consider Myrick's contentions that:  (1) its request to cross-examine the ratings expert was improperly denied;  (2) such denial deprived it of procedural due process;  and (3) there is no substantial evidence to support the finding that the injury to Brown's right shoulder was sustained in the course of employment.   We will annul the award.

FACTS

Brown was employed by Myrick as a timber faller when he suffered injuries in a fall on October 23, 1978.   He filed a workers' compensation claim thereafter, alleging permanent and temporary disability.   Following Brown's examination by physicians, a recommended rating was requested from the Disability Evaluation Bureau.  (Cal.Admin.Code, tit. 8, § 10602.1)  A disability rating specialist submitted a formal response, which was forwarded to counsel on November 9, 1982.

On November 17, 1982, Myrick sent a letter to the WCAB judge objecting to the rating, requesting that it be stricken, “but in the event that it is not ․ that the matter be set for formal hearing to permit [Myrick] to cross-examine the rating specialist.”   The judge responded by letter, indicating that if cross-examination was requested, Myrick must file a Declaration of Readiness to Proceed (§ 10414) prior to December 2, 1982.   Myrick did not file the declaration and the judge issued his findings on December 14, 1982.   Myrick subsequently filed a request for reconsideration.   The request was granted, but the original decision was affirmed.

DISCUSSION

Myrick contends that the WCAB improperly insisted upon a “Declaration of Readiness to Proceed” as a prerequisite to preserving its right to cross-examine the ratings specialist.   We agree.

 The Administrative Code permits the WCAB to request the Disability Evaluation Bureau to prepare a recommended rating, based upon described disability factors and medical reports.   The report filed in response to the request constitutes evidence of the percentage of the permanent disability based on the described factors.  (§ 10602.)   Each party has a right to cross-examine the ratings specialist.  (Lab.Code, § 5704;  Pence v. Industrial Acc. Com. (1965) 63 Cal.2d 48, 50–51, 45 Cal.Rptr. 12, 403 P.2d 140;  Department of Motor Vehicles v. Workmen's Comp. Appeals Bd. (1971) 20 Cal.App.3d 1039, 1047, 98 Cal.Rptr. 172;  Young v. Industrial Acc. Com. (1940) 38 Cal.App.2d 250, 257, 100 P.2d 1062.)   Failure to allow cross-examination of the specialist amounts to a deprivation of due process and compels annulment of the award.  (Hegglin v. Workmen's Comp. App. Bd. (1971) 4 Cal.3d 162, 175, 93 Cal.Rptr. 15, 480 P.2d 967;  Nielsen Freight Lines v. Workers' Comp. Appeals Bd. (1980) 113 Cal.App.3d 434, 439, 169 Cal.Rptr. 854.)   No formal procedure is specified to initiate the request for cross-examination, other than that the request must be in writing.²  The code merely provides that the request from the Disability Evaluation Bureau “shall include or be accompanied by a notice that the case shall be submitted for decision seven (7) days after service unless written objection is made within that time.”  (§ 10602.)   The report from the disability specialist included the following statement:  “NOTICE IS HEREBY GIVEN that the above instructions and reports have been received in evidence and that the case will be submitted for decision 7 days from the date of service as shown hereon unless good cause be shown to the contrary in writing.”   In the case at bench, Myrick's letter of November 17 clearly constituted a timely written objection to the rating within the meaning of section 10602.³  As such, the written request properly preserved Myrick's right to request a hearing for the purpose of conducting cross-examination.

WCAB contends, however, that the judge properly included a demand for a Declaration of Readiness prior to taking the matter under submission.   We disagree.

The “Declaration of Readiness to Proceed” is strictly a creature of WCAB rules.  “Applications or petitions shall not be placed on calendar for pre-trial conference, regular hearing, or any other hearing unless one of the parties has filed and served a Declaration of Readiness to Proceed in the form prescribed by the Workers' Compensation Appeals Board wherein the declarant states under penalty of perjury that he or she is presently ready to proceed to regular hearing on the issues stated therein and specifies efforts made to resolve those issues.”  (§ 10414.)   The obvious purpose of the declaration is merely to indicate that the matter is ready to proceed to a hearing and to alert the WCAB to the nature of the proceeding.   In addition to the specification of issues, the declaration also includes the number of expected witnesses and the time estimated for the hearing.

 “Regular hearing” as specified in section 10414 means a proceeding ⁴ set for the purpose of receiving evidence.  (§ 10301, subd. (m).)  Unquestionably, the product of cross-examination is evidence.   Accordingly, we have determined that the WCAB properly may insist upon the filing of a Declaration of Readiness to Proceed as a condition of formally setting the hearing for the purpose of conducting cross-examination.   Nothing in the code, however, requires that such request for setting be made within the seven days prior to the case being submitted for decision.⁵  Since the right of cross-examination is fundamental to due process, we shall not imply such a condition.   It follows, then, that the WCAB judge improperly conditioned the request for cross-examination on the filing of a Declaration of Readiness.

In holding that WCAB rules require the filing of a Declaration of Readiness prior to setting a hearing for cross-examination, we are nevertheless concerned with the acknowledgment by counsel for the WCAB during oral argument that section 10414, in some cases, may be more honored in its breach than in its observance.   It is apparent that enforcement of the section is left to the discretion of the individual WCAB judge.   We also note in passing that the WCAB failed to observe our rules in filing a formal brief as a party to this appeal.  (Cal.Rules of Court, rules 14 and 17(b).)   Given WCAB's apparent proclivity to selectively observe and enforce rules,⁶ we can only speculate as to the motive for its zealous desire to enforce section 10414 in this particular case.

We suspect that uniform application of section 10414 in every instance where cross-examination is requested may soon be regarded even by the WCAB as bureaucratic excess.   If such is the case, the rules should be changed.   We remind respondent board that rules are designed to promote uniformity of action so that every litigant is given a fair opportunity to properly present its case and to understand what is expected of it.   Selective enforcement of rules merely creates a trap for the unwary and may turn a particular rule into a sword to be wielded against the disfavored.

Having determined that the action of the WCAB improperly denied Myrick of the right to cross-examine the rating specialist, we annul the award and remand the matter to respondent board for further proceedings not inconsistent with this opinion.⁷

FOOTNOTES

FOOTNOTE.  

FN1. Unless otherwise indicated, all references are to the California Administrative Code, title 8, subchapter 2:  Workers' Compensation Appeals Board—Rules of Practice and Procedure..  FN1. Unless otherwise indicated, all references are to the California Administrative Code, title 8, subchapter 2:  Workers' Compensation Appeals Board—Rules of Practice and Procedure.

2.   One commentator suggests that the request for cross-examination can be made in a one-sentence letter.  (St. Clair, Cal. Workers' Compensation Law and Practice (1st ed. 1980) p. 151.)

3.   The report was served on November 9, 1982, by mail.   Myrick's objections were served by mail on November 17, 1982.   The use of the mails for service of the recommended rating extended the seven-day period one day.  (Code Civ.Proc., § 1013;  Industrial Indem. Co. v. Ind. Acc. Com. (Hicks) (1961) 57 Cal.2d 123, 126, 17 Cal.Rptr. 821, 367 P.2d 413.)

4.   A “proceeding” means “any regular hearing, conference hearing, rating pre-trial, standby calendar, or any other act which may result in a finding, order, decision or award of the” WCAB.  (§ 10301, subd. (j).)

5.   The better practice may be to include the declaration with the request for cross-examination.  (See St. Clair, supra, at p. 151.)   Clearly, however, such practice is not compelled by WCAB rules.

6.   See Fidelity & Cas. Co. of New York v. Workers' Comp. Appeals Bd. (1980) 103 Cal.App.3d 1001, 1016, 163 Cal.Rptr. 339.

7.   We do not reach Myrick's last contention that there was insufficient evidence to support the WCAB award.

COUZENS, Associate Justice *. FN* Assigned by the Chief Justice.

BLEASE, Acting P.J., and CARR, J., concur.