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Defendants Not Required to Disclose Sub Rosa Video Prior to Mandatory Settlement Conference

KENZY vs. PENSKE TRUCK LEASING

(2015) 2015 Cal. Wrk. Comp. P.D. Lexis 635

 

Applicant, a mechanic for Penske Trucking, sustained injury to his back, shoulder and psyche on May 17, 2011. The parties utilized Qualified Medical Evaluators to evaluate the injuries.

The orthopedic QME reported that the injuries resulted in 11% Whole Person Impairment to the shoulder and 5% to the lumbar spine. The psychiatric QME report resulted in 61% Whole Person Impairment. Applicant’s attorney also retained a vocational expert who offered the opinion that the applicant’s injuries made him incapable of rehabilitation and that he had a 100% loss of future earning capacity. After receiving the vocational expert’s report, defense counsel noticed the expert’s deposition. The deposition notice was dated March 13, 2015 and scheduled the deposition for July 7, 2015.

On June 5, 2015, applicant’s attorney filed a Declaration of Readiness requesting a Mandatory Settlement Conference. Defendant filed a timely objection, citing the pending deposition, as well as other discovery.

The MSC was held on July 7, 2015. The Workers Compensation Judge overruled the defendant’s objection to the Declaration of Readiness. The parties filled out the MSC Statement and identified issues, witnesses and evidence. Among the evidence listed by the defendant was “all sub rosa video to date”. Defense counsel served the video to applicant’s attorney at the Mandatory Settlement Conference. Applicant objected to the video, asked that it be excluded and asked that discovery be closed. These requests were granted. Defendant filed a Petition for Removal.

The Board granted removal and ordered that discovery remain open. The panel noted that defense counsel acted diligently in setting the depositions upon receipt of the vocational expert’s report. Further, the depositions were scheduled before applicant’s attorney filed his Declaration of Readiness.

With regard to the sub rosa video, the panel cited 8 CCR 10601 which states that copies of videotapes shall be served on all adverse parties “no later than the Mandatory Settlement Conference”. Here, the videotapes were served on applicant’s attorney at the Mandatory Settlement Conference. Therefore, there was compliance with the regulations and the evidence was admissible.