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WORKERS' COMPENSATION APPEALS BOARD

STATE OF CALIFORNIA

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MICHAEL PELUSO

Applicant,

vs.

CALGARY FLAMES, et al.

Defendants.

CaseNos. ADJ8643967
ADJ10070125
ADJ10069887
ADJ10525135
ADJI0525090
(Santa Ana District Office)
OPINION AND ORDER
DISMISSING PETITION
FOR RECONSIDERATION,
GRANTING REMOVAL, AND
DECISION AFTER REMOVAL

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Applicant seeks reconsideration, or in the alternative removal, of the order denying applicant's

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request to admit newly discovered evidence (Order) issued by the WCJ on August 31, 2016. In the

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Order, the WCJ found that the offered evidence would not be admitted because applicant failed to follow

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the proper procedures in order to re-open discovery, namely to file a petition for reconsideration of the

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order closing discovery entered on April 20, 2016 following conclusion of the Mandatory Settlement

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Conference.

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Applicant contends in pertinent part that the referenced evidence should be admitted because

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(1) defendant New Jersey Devils wrongfully failed to produce certain highly relevant medical records

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prior to the Mandatory Settlement Conference; (2) the additional medical and vocational reporting

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obtained by applicant are based on that wrongfully withheld evidence; (3) defendant agreed to keep

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discovery open until August 11, 2016; and (4) applicant's due process rights will be violated if the

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evidence is not admitted.

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We received an Answer to Applicant's Petition for Removal/Reconsideration on Admissibility of

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Evidence (Answer) from defendant Federal Insurance Company c/o Chubb Group of Insurance

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Companies. The WCJ filed a Report and Recommendation of Workers' Compensation Judge on Petition

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for Removal/Reconsideration (Report) on September 28, 2016, recommending that applicant's Petition

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be denied.

We have reviewed the record and considered the allegations of the Petition, defendant's Answer,

and the contents of the Report. For the reasons discussed below, we dismiss applicant's Petition to the

extent it seeks reconsideration, grant it as a petition for removal, rescind the Order, and return the matter

to the WCJ for further proceedings consistent with this opinion.

I.

Applicant, a former professional hockey player, has filed five worker's compensation claims

asserting various injuries arising out of and in the course of employment. The parties held a Mandatory

Settlement Conference (MSC) on April 20, 2016 to prepare this case for trial, after which the MSC WCJ

ordered discovery closed as of that date. Applicant subsequently obtained various pieces of evidence he

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asserts were unavailable prior to the close of discovery.

On August 31, 2016, the WCJ denied

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applicant's request to admit this evidence at trial. Applicant seeks reconsideration or removal of that

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Order, which denied his request for admission of this evidence.

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Applicant asserts that, on May 12, 2016, applicant's counsel obtained newly discovered medical

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evidence that should have been produced by the New Jersey Devils in this litigation pursuant to

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discovery requests served on November 28, 2012. (Petition, pp. 3:19-22, 7:9-15.) Applicant contends

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that he received this evidence from an attorney for the National Hockey League Players Association

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(NHLPA) as a result of compelled production in a presently pending national class action against the

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National Hockey League (NHL) alleging that NHL teams knew of the risks of head injuries and did not

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warn or take steps to protect its players (NHL Litigation). {Id., p. 3:16-18, 7:1-2.) This medical evidence

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includes: (1) Records of the New Jersey Devils dated December 18, 1993 demonstrating that applicant

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sustained a concussion and was hospitalized overnight, and (2) a February 21, 1994 neurologist report

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obtained by the New Jersey Devils discussing that (a) applicant suffered a Grand Mai seizure while

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working out on a treadmill for the team, (b) the seizure was attributable to the applicant's December 18,

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1993 concussion, and (c) further head trauma to applicant could cause long term neurological damage

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(collectively, the New Jersey Devil Records). {Id., p. 3:27-4:11.)

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Applicant further asserts that, on April 29, 2016, applicant was sent to Dr. Kerri Lamberty, a

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neuropsychologist, in response to an order issued by the federal court in the NHL Litigation.
PELUSO, Michael

{Id., p. 9:23-25.) Dr. Lamberty issued a medical report on May 10, 2016 offering significant and directly

relevant new medical opinions regarding applicant's injuries and current condition. {Id., p. 10:1-5.) In

connection with her report, Dr. Lamberty was able to review the New Jersey Devil Records, which no

qualified medical examiner in this case had yet been able to do. (Id. ) This report was unavailable at the

time of the MSC as it did not yet exist. {Id., p. 4:12-18.)

After it was completed, Dr. Lamberty's report was provided to applicant's treating physician,

Dr. Steven Stein.

connection with the NHL Litigation offering additional medical opinions regarding applicant's condition.

{Id., p. 10:9-12.) Dr. Stein's report was also unavailable at the time of the MSC as it did not yet exist.

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{Id., p. 4:22-23.) Applicant's counsel himself obtained copies of Dr. Lamberty's and Dr. Stein's medical

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reports on June 1, 2016. {Id., p. 7:18-21.)

(Petition, p. 4:19-23.)

On May 23, 2016, Dr. Stein issued a medical report in

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In light of the new information provided to applicant's counsel by the NHLPA and other

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unrelated issues, applicant asserts that in late May 2016 his counsel obtained defendants' agreement to

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keep discovery open until twenty days before trial, which was scheduled for August 31, 2016. (Petition,

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p. 17:15-27; Ex. 21, May 27, 2016 email from Shawn Stuckey to Samantha Deutschel.) On May 31,

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2016, counsel for defendant Federal Insurance Company c/o Chubb Group of Insurance Companies and

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for employer defendants the St. Louis Blues and New Jersey Devils wrote a letter to applicant's counsel

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in which she appears to acknowledge that agreement when asking that applicant's counsel "ensure that

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[NHLPA records that were subpoenaed prior to the MSC] are also served 20 days prior to Trial, as that

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will be deemed discovery closed(Ex.

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p. 1 [emphasis added].) Notably, defendant does not acknowledge or address this alleged agreement to

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extend the discovery cut-off in its Answer. (See Answer.)

6, May 31, 2016 letter from Samantha Deutschel to Ronald Mix,

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Applicant asserts that, in reliance on defendant's agreement to extend the discovery deadline until

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twenty day prior to trial, applicant's counsel spent significant time and energy to conduct additional

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discovery based on the new medical records received from the NHLPA. (Petition, p. 8:7-11.) Applicant

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asserts that he obtained the following discovery as a result of these efforts:

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PELUSO, Michael

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Psychoanalyst Reports of Dr. Leighton Reynolds, dated April 29, 2016,

July 15, 2016 and August 8, 2016;
Forensic Vocational Evaluation Reports of Dr. Luis Mas, dated June 29,
2016 and August 8, 2016;
QME Reports of Dr. Kenneth Nudleman, dated June 11, 2016, July 23,
2016, and August 10, 2016;
QME Reports of Dr. Michael Einbund, dated June 11, 2016, July 7, 2016,
and August 8, 2016;
Various news articles regarding the effects of concussions and multiple
head traumas suffered by applicant throughout his career. (Petition,
p. 12:3-17.)

(Petition, p. 10:16-12:17; Answer, p. 2-3.)

On June 30, 2016, applicant served defendant with the above discussed medical reports that had

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been obtained as of that date, which applicant would seek to have admitted into evidence at the

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August 31, 2016 trial. (Answer, p. 2.) On July 11, 2016, defendant filed a written objection to this

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additional discovery, asserting that its agreement to extend the discovery cut-off permitted admission of

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only records subpoenaed from the NHLPA, not the additional medical reporting obtained by applicant.

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(Defendant's Objection to Applicant's Petition for Serious and Willful [sic] and Sanctions with Notice of

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Errata to Pre-Trial Conference Statement, July 11, 2016, p. 6-7.) On August 11, 2016, applicant served

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defendants with the additional medical and vocational reports which had not yet been disclosed.

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(Answer, p. 3.)

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After receiving briefing from the parties on the issue, on August 31, 2016, the WCJ held a

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hearing to decide whether applicant's new evidence would be admissible at trial. (Minutes of Hearing

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and Order of Consolation, August 13, 2016 (MOH), p. 3:10-12.) The judge ruled that the evidence was

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inadmissible because applicant "failed to follow the proper procedures in order to re-open discovery,

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which would have been a Petition for Reconsideration of the final order of the MSC Judge on April 20,

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2016, and therefore discovery was closed at the MSC in accordance with Labor Code section 5502."1

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Although it is unclear from the MOH, the WCJ states in her Report that "the injury report dated
December 18, 1993 from the New Jersey Devils and the medical report of Dr. Marvin Ruderman dated
February 21, 1994 have been found to be admissible[.]" (Report, p. 3.) It thus appears that the WCJ
excluded the additional medical and vocational reporting obtained by applicant, but not the New Jersey
Devils Records applicant's counsel obtained from the NHLPA.
PELUSO, Michael

{Id., p. 3:17-20.) Applicant filed a petition seeking either reconsideration or removal of this decision on

September 17, 2016.

II.

First, we will dismiss applicant's Petition to the extent it seeks reconsideration. A petition for

reconsideration is properly taken only from a "final" order, decision, or award. (Lab. Code, 5900(a),

5902, 5903.) A "final" order has been defined as one "which determines any substantive right or liability

of those involved in the case." {Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores,

Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases

410|/; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39,

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45 [43 Cal.Comp.Cases 661].) Interlocutory procedural or evidentiary decisions, entered in the midst of

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the workers' compensation proceedings, are not considered to be "final" orders because they do not

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determine any substantive question. {Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th

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1068, 1075 [65 Cal.Comp.Cases 650]; Rymer, supra, 211 Cal.App.3d at 1180; Kaiser Foundation

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Hospitals (Kramer), supra, 82 Cal.App.3d at 45; see also, e.g., 2 Cal. Workers' Comp. Practice (Cont.

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Ed. Bar, 4th ed., 2000), 21.8, 21.9.)

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In this case, the Order determined that evidence obtained by applicant's counsel after the close of

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discovery would not be admissible at trial. This is a hornbook example of an interlocutory evidentiary

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decision that is not reviewable via reconsideration. The Petition, to the extent it seeks reconsideration,

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must accordingly be dismissed.

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66 Cal.Comp.Cases 272 (writ den.); Jablonski

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Cal.Comp.Cases 399 (writ den.); Beck v. Workers' Comp. Appeals Bd. (1979) 44 Cal.Comp.Cases 190

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(writ den.).)

(See, e.g., Elwood v. Workers' Comp. Appeals Bd. (2001)

v. Workers' Comp. Appeals

Bd.

(1987) 52

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Applicant's counsel does, however, seek either reconsideration or removal of the Order via his

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Petition. We will thus treat applicant's Petition as seeking removal of this matter to the WCAB pursuant

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to Labor Code section 5310. Removal is a proper method for obtaining interlocutory review where a

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party alleges that an order will result in significant prejudice or irreparable harm, and that reconsideration

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would not be an adequate remedy following issuance of a final order. (Cal. Code Regs., tit.8, 10843.)
PELUSO, Michael

Applicant asserts that he will be substantially prejudiced and irreparably harmed by exclusion of the

evidence at issue because it definitively demonstrates that applicant's seizure condition was caused by

his employment. (Petition, p. 22.) Because applicant's offered evidence was unavailable prior to the

close of discovery and is directly relevant to the merits of his claim, we agree that rescission of the Order

is warranted.

First, we cannot endorse the rationale adopted in the Order for inadmissibility of this evidence. In

the Order, the WCJ found that applicant's new evidence must be found inadmissible because applicant

failed to file a petition for reconsideration of the order closing discovery entered by the MSC WCJ on

April 20, 2016. (MOH, p. 3:17-20.) Procedural orders, such as orders taking off calendar, orders closing

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discovery, or orders of submission, which are issued before a decision is made on a substantive question,

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are not subject to attack by a petition for reconsideration. (2 Cal. Workers' Comp. Practice (Cont. Ed.

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Bar, 4th ed. June 2003 update), 21.9, pp. 1381-1382; see, e.g., Malinowski v. HWM Electronic

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Protection Services (2013) 2013 Cal. Wrk. Comp. P.D. LEXIS 214, p. 4; Mackay v. City of Vallejo

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(2011) 2011 Cal. Wrk. Comp. P.D. LEXIS 488, p. 3; Schrodt v. Shortridge Young Dental Laboratory

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(2009) 2009 Cal. Wrk. Comp. P.D. LEXIS 179, p. 3.) Applicant's failure to seek reconsideration of the

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April 20, 2016 order thus does not present a valid rationale for denying admissibility of new evidence

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obtained after the close of discovery.

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Labor Code section 5502(d)(3) governs the admissibility of evidence obtained after the close of
discovery but before a case proceeds to trial. That provision provides in relevant part that,

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Discovery shall close on the date of the mandatory 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.

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WCAB Rule 10856 (Cal. Code Regs., tit. 8, 10856) does not apply in the circumstances of this case
because that rule governs when evidence is discovered after a case is submitted and a final order issues.
Because there has not yet been a final, substantive determination after trial in this case, the less stringent
standard of Labor Code section 5502(d)(3) governs admissibility of applicant's newly discovered
evidence.
PELUSO, Michael

(Labor Code, 5502(d)(3).) We believe that the circumstances alleged in applicant's Petition more than

adequately demonstrate that the subject evidence "was not available or could not have been discovered

by the exercise of due diligence prior to the settlement conference." For that reason, we will grant

removal and rescind the Order.

The New Jersey Devils Records are essential to this analysis. These documents were responsive

to valid discovery requests propounded in this case but were inexplicably not produced by defendant

New Jersey Devils. (Petition, p. 13:22-14:17.) Instead, applicant's counsel received copies of these

records after the close of discovery from counsel to the NHLPA after their production was compelled in

the NHL Litigation. {Id., pp. 3:16-4:11, 7:9-15.) Due to defendant New Jersey Devils' dereliction of its

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discovery obligations, these documents clearly "were not available" to applicant prior to the close of

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discovery. Their admission is thus justified under Labor Code section 5502(d)(3), a fact which the WCJ

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appears to recognize in her report. (Report, p. 3.)

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Because the additional medical and vocational reporting obtained by applicant appears to be

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based on the doctors' review and assessment of the wrongfully withheld New Jersey Devils Records or

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were otherwise unavailable to applicant, those reports should be admitted as well. The April 29, 2016

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report of Dr. Lamberty, for example, was ordered by a federal judge in the NHL Litigation. (Petition,

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p. 4:12-15.) This report was unavailable and could not have been discovered by the exercise of due

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diligence because it did not exist at the time discovery closed. (Id., p. 7:15-18.) It is self-evident that

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Dr. Lamberty's previously unavailable medical report is directly relevant to issues to be determined at

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trial. Because applicant has demonstrated it was not available prior to the close of discovery, it is

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admissible under Labor Code section 5502(d)(3).

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Applicant's other proposed medical and vocational reports appear to be based on those doctors'

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review of the New Jersey Devils Records or the reporting of Dr. Lamberty. (Petition, p. 11:10-12:2.)

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Each of these doctors apparently found that the newly discovered New Jersey Devils Records

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"dramatically influenced and even altered their opinions." (Petition, p. 8:14-15.) Dr. Nudleman, for

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example, apparently increased his opinion regarding applicant's whole person impairment and altered his

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apportionment conclusions as a result of his review of these previously undisclosed documents.

PELUSO, Michael

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(Petition, p. 11:18-21.) After review of the New Jersey Devils Records, Dr. Reynolds concluded that

applicant may be a candidate for a finding under Labor Code section 4662(a)(4). (Id., p. 10:19-22.)

Applicant could not have obtained these opinions before the close of discovery because the New Jersey

Devils wrongfully withheld the documents underlying them. Because these opinions were not available

before the close of discovery due to a defendant's improper discovery conduct, their admission is

justifiable under Labor Code section 5502(d)(3).

Even if the above were not true, it appears that defendant agreed to an extension of the discovery

deadline until twenty days before trial, or August 11, 2016, and applicant produced all of the proposed

new evidence on or before that date. Although defendant argued before the WCJ that its agreement

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regarding additional discovery extended only to the records subpoenaed from the NHLPA, not to any

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other evidence, defendant leaves the scope of this agreement entirely unaddressed in its Answer.

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Considering the substance of defendant's communications with applicant's counsel as evidenced by

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exhibits in the file, it appears that defendants did agree to keep discovery open until twenty days before

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trial. Furthermore, defendant does not assert that it would be prejudiced by admission of applicant's new

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evidence. Under such circumstances, admission of the new evidence is warranted.

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Trust v. Workers' Comp. Appeals Bd. (Ziegler) (2006) 71 Cal.Comp.Cases. 533, 536 (writ den.).)

(See First Bank &

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Applicant's new evidence was unobtainable prior to close of discovery in this case. Even if that

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were not the case, defendant appears to have agreed to keep discovery open until August 11, 2016. The

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evidence offered by applicant is directly relevant to the merits of his claim.

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relevance, applicant would be substantially prejudiced and irreparably harmed if this evidence was

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excluded. We accordingly grant removal and rescind the Order. Upon return of this matter to the trial

Because of its direct

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In addition to the various medical and vocational reports relying on the New Jersey Devils Records,
applicant also requests that we direct the WCJ to admit various videos and articles he asserts demonstrate
the lasting effects of concussions and multiple head traumas suffered by applicant throughout his career.
(Petition, pp. 6:10-18, 12:3-17.) Although applicant has not demonstrated that these records were
unavailable prior to the close of discovery, their admission is justified pursuant to defendant's apparent
agreement to keep discovery open until August 11,2016.
PELUSO, Michael

level, we suggest that the WCJ set a hearing to discuss any additional discovery any party needs before

trial and set a reasonable new deadline for its completion.

Thus, we dismiss applicant's petition to the extent it seeks reconsideration, grant it as a petition

for removal, rescind the Order, and return the matter to the WCJ for further proceedings consistent with

this opinion.

For the foregoing reasons,

IT IS ORDERED that applicant's Petition for Reconsideration of the Order denying applicant's

request to admit newly discovered evidence issued by the WCJ on August 31, 2016 is DISMISSED.

IT IS FURTHER ORDERED that applicant's Petition for Removal of the Order denying

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applicant's request to admit newly discovered evidence issued by the WCJ on August 31, 2016 is

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GRANTED.

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PELUSO, Michael

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