Opinion
San Jose District Office
OPINION AND ORDER GRANTING PETITION FOR RECONSIDERATION AND NOTICE OF INTENTION REGARDING EVIDENCE
KATHERINE A. ZALEWSKI, CHAIR
Applicant seeks reconsideration of the Findings and Order (F&O) issued on December 20, 2021, wherein the workers’ compensation administrative law judge (WCJ) found that (1) while employed during the period ending February 11, 2020, applicant claims to have sustained a cumulative injury arising out of and in the course of his employment to his feet and ankles; (2) EAMS document number 7426332 is relevant to the subject matter of this litigation, is not unduly prejudicial, and refers to matters about which applicant testified at his September 10, 2020 deposition; and (3) exhibits A, 3, 4, 6, 7, and 8 are not relevant to the subject matter of this litigation and not admitted in evidence.
The WCJ ordered that EAMS document number 7426332 is discoverable; and, as such, may be sent to a qualified medical evaluator (QME).
Applicant contends that the evidence does not show that EAMS document number 7426332 is relevant to the subject matter of this action or that he waived his right to privacy in the document.
We received an Answer from defendant.
The WCJ issued a “Report and Recommendation on Petition for Removal” (Report) recommending that the Petition be denied.
We have reviewed the allegations of the Petition, the Answer, and the contents of the Report. However, inasmuch as EAMS document number 7426332 has not been entered into evidence, the basis for the WCJ's determination is not in the record before us. Accordingly, we will issue a Notice of Intention (NIT) to designate EAMS document number 7426332 as Exhibit XX in 15 days and mark it for “ID only” so as to consider the issue of its admissibility, absent written objection filed within that time stating good cause to the contrary. This is not a final decision on the merits of whether EAMS document number 7426332 is admitted into evidence and whether it is discoverable.
Reconsideration will be granted for this purpose and for such further proceedings as we may hereinafter determine to be appropriate.
For the foregoing reasons,
IT IS ORDERED that applicant’s Petition for Reconsideration of the Findings and Order issued on December 20, 2021 is GRANTED.
NOTICE IS HEREBY GIVEN that without further order, absent objection and good cause to the contrary shown in writing and received within fifteen (15) days from the date of service indicated below at the Office of the Commissioners of the Workers' Compensation Appeals Board at either its street address (455 Golden Gate Avenue, 9th Floor, San Francisco, CA 94102), or its e-mail address (WCABgrantforstudy@dir.ca.gov), EAMS document number 7426332 will be designated as Exhibit XX and marked for ID only.
IT IS FURTHER ORDERED that pending the issuance of a Decision after Reconsideration in the above case, all further correspondence, objections, motions, requests and communications relating to the petition shall be filed only with the Office of the Commissioners of the Workers’ Compensation Appeals Board at either its street address (455 Golden Gate Avenue, 9th Floor, San Francisco, CA 94102), or its e-mail address (WCABgrantforstudy@dir.ca.gov). It is within the discretion of the Workers’ Compensation Appeals Board to determine whether any document submitted for filing is accepted for filing (Cal. Code Regs., tit. 8, § 10615(c) [eff. January 1, 2022]).
IT IS FURTHER ORDERED that all trial level documents not related to the petition are not subject to this order EXCEPT that given WCAB Rule 10961 (Cal. Code Regs., tit. 8, § 10961), when the parties file a stipulations with request for award or a compromise and release agreement in this case, all parties shall simultaneously notify the Workers’ Compensation Appeals Board of the filing at either its street address (455 Golden Gate Avenue, 9th Floor, San Francisco, CA 94102), or its e-mail address (WCABgrantforstudy@dir.ca.gov).
IT IS FURTHER ORDERED that if the party filing the petition decides to withdraw the petition for any reason, the party shall immediately notify the Workers’ Compensation Appeals Board of the withdrawal at either its street address (455 Golden Gate Avenue, 9th Floor, San Francisco, CA 94102), or its e-mail address (WCABgrantforstudy@dir.ca. gov).
I CONCUR, MARGUERITE SWEENEY, COMMISSIONER, CRAIG SNELLINGS, COMMISSIONER