Capital Builders Hardware, Inc. v. Workers' Compensation Appeals Board

Filed 11/16/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

CAPITAL BUILDERS HARDWARE, INC., No. B271987

Petitioner, (W.C.A.B. Nos. ADJ7170139 & ADJ7176930) v.

WORKERS’ COMPENSATION APPEALS BOARD,

Respondent;

ROBERT GAONA,

Real Party in Interest.

PROCEEDINGS to review a decision of the Workers’ Compensation Appeals Board. Annulled and remanded.

Stockwell, Harris, Woolverton & Muehl, David R. Erwin and George Woolverton for Petitioner.

John F. Shields for Respondent.

Graiwer & Kaplan, Gilbert Katen and Borris Vernik for Real Party in Interest. _________________________ The applicant and real party in interest, Robert Gaona (Gaona), claimed industrial injury and filed a workers’ compensation claim. Following the circulation of a medical

report, his employer, petitioner Capital Builders Hardware, Inc. (Capital Builders), objected to the admissibility of the report and requested that it be stricken. The workers’ compensation judge (WCJ) denied Capital Builders’s motions “without prejudice.” Capital Builders appealed the decision of the WCJ to the Workers’ Compensation Appeals Board (appeals board) by filing a petition for removal and a petition for reconsideration. The appeals board dismissed and denied those petitions. Capital Builders now seeks writ review in the Court of Appeal. At issue is whether the appeals board’s order is reviewable. We conclude that it is not. It is well- established that a petition for writ of review may be sought only from a final order or decision of the appeals board. (Lab. Code, §§ 5900, 5901;1 Maranian v. Workers’ Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1074 (Maranian).) Here, the appeals board’s order is not final. To the extent Alvarez v. Workers’ Comp. Appeals Bd. (2010) 187 Cal.App.4th 575 (Alvarez) suggests that either the WCJ’s order or the appeals board’s order is reviewable by writ of review, we disagree. Accordingly, we annul the writ of review and remand the case to the appeals board. FACTUAL AND PROCEDURAL BACKGROUND Gaona claimed industrial injury. He was evaluated by Dr. Sherry Mendelson, the agreed medical evaluator (AME), who opined that he should be evaluated by a chronic pain specialist and recommended Dr. Lawrence R. Miller. Dr. Miller recommended “24 hours 7-day a week home care assistance.” His report was sent to Dr. Mendelson, who accepted his opinion and recommended that 24/7 care be provided. Capital Builders later objected to the admissibility of Dr. Miller’s report. It then filed a petition to strike Dr. Mendelson’s reports and remove her as the AME in psychiatry pursuant to section 4062.3, subdivision (g). The petition alleged that there was no agreement to provide Dr. Miller’s report to the AME and that sending Dr. Miller’s report to Dr. Mendelson was an improper ex parte communication.