A recent unpublished (which means that the case is not citable in legal proceedings as authority) opinion by the California Fourth District Court of Appeal reminds us that there are times when the Labor Code, the main governing body of statutes in California workers' compensation, takes a back seat.
One of those times is when it comes to evidence.
Shirley Lappi sustained a workplace injury in 2003 while working as an administrative assistant for the University of California at Irvine. Lappi filed a claim for benefits and demanded that her employer and the insurer produce certain documents related to her claim.
The defendants produced most of the documents, along with a privilege log identifying 205 documents that they asserted were not subject to discovery because of the attorney-client privilege and work-product doctrine.
After reviewing the log, Lappi's attorney objected to the defendants' failure to disclose 47 of the listed documents because they were not communications between the defendants and defendants' attorneys.
A workers' compensation administrative law judge ordered the defendants to provide Lappi with copies of some of the documents.
In her order and opinion, the judge stated that she had determined that the documents, which consisted of communications between claims personnel, were not privileged unless they specifically discussed a communication that had been made by counsel.
The defendants filed a petition for reconsideration in December 2012. They argued that the documents which the judge had ordered them to turn over were communications between claims personnel discussing "action plans," which were based on legal opinions, discussions and advice from defense counsel. They insisted that these documents ought to be deemed privileged and protected attorney work product.
A WCAB panel rescinded the judge's order, but the commissioners said they were not convinced that the documents were, in fact, privileged.
So on remand, the WCAB said the parties have to select a special master, or the judge will have to appoint one if the parties cannot agree on one.
The Board also said the defendants would have to pay the special master to review the substance of the alleged protected documents and prepare a report for the judge and the parties on what he or she considers to be shielded from discovery.
The 4th DCA, on review, said it was "beyond dispute" that the Evidence Code would have prohibited the type of document review ordered by the WCAB if this dispute had arisen in the context of an ordinary civil case.
"(W)hen it comes to the treatment of privileged information specifically, division 8 of the Evidence Code trumps," the court said.
Division 8 expressly applies to "any action, hearing, investigation, inquest or inquiry (whether conducted by a court, administrative agency, hearing officer, arbitrator, legislative body, or any other person authorized by law) in which . . . testimony can be compelled."
Ergo, the WCAB remains bound by the statutory requirements for dealing with privilege found in division 8. "As a consequence, the WCAB erred in this case when it ordered an in camera review of the University's allegedly privileged documents by a special master for the purpose of assessing the merits of that privilege claim," the court concluded.
The WCAB's order was annulled.
The case is Regents of the University of California v. WCAB (Lappi), No. G048217, 05/23/2014.
By the way - you didn't happen to notice that the date of injury in this case was 2003 ... still messing around 11 years later with legal maneuvering. If anyone want to know what's wrong with work comp, this should be an example.