Dole Bakersfield, Inc. v. Workers' Compensation Appeals Board

Opinion

STONE (W. A.), Acting P. J.

Respondent Isaías Arguelles (Arguelles) worked as a general laborer for petitioner Dole Bakersfield, Inc. (Dole), from 1990 until June of 1996. He sustained admitted industrial injuries to his back on May 2b, 1994, and November 18, 1995. At a mandatory settlement conference before a workers’ compensation judge (WCJ), Arguelles’s attorney listed only his client as a witness. Dole listed three witnesses, not including Arguelles. At trial Arguelles’s attorney submitted the case on the record. Dole called Arguelles as a witness. The WCJ sustained Arguelles’s objection, finding Dole was precluded from calling him because he did not appear on Dole's witness list.

Following the findings, award and order, Dole sought reconsideration, contending the WCJ erred in two respects: relying upon the opinion of Dr. Alan Sanders to determine Arguelles’s disability and refusing to allow cross-examination of him. The Workers’ Compensation Appeals Board (WCAB), in a two-to-one decision, denied the petition.

Discussion

I

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II.

Cross-examination of Arguelles

Labor Code

1

section 5502, subdivision (d)(3) provides: “If the 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

[1276]

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.”

Petitioners contend the WCJ erred in refusing to allow cross-examination of Arguelles. Arguelles, however, argues that because