Petition for Writ of Certiorari — Spaletta v. California Workers' Compensation Appeals Board

FILED

NE @88n205 Fg 7 1994

Supreme Court of the Units State cuss

OCTOBER TERM, 1993

JUDITH SPALETTA,

Petitioner,

V.

CALIFORNIA WORKERS’ COMPENSATION APPEALS BOARD, COUNTY OF

MENDOCINO AND CLAIMS MANAGEMENT, INC.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL, STATE OF

CALIFORNIA, FIRST APPELLATE DISTRICT,

DIVISION FIVE

PETITION FOR WRIT OF CERTIORARI

JAMES REYER, ESQUIRE

Post Office Box 5876

Santa Rosa, California 95402

(707) 576-1244

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether Petizioner was denied her

Procedural Due Process right to notice

in the workers' compensation appeals

board June 15 Order, when that order

failed to provide in writing evidence

relied upon and detailed reasons

therefor, required by California Labor

Code, Section 5908.5, a state statute

enacted to enforce Fourteenth Amendment

Procedural Due Process guarantees?

2. Whether Petitioner was denied her

Procedural Due Process right of reply

pursuant to California Rule of Court

57(b), when the state court of appeal

granted Petitioner until October 20,

1993, an extension to exercise her

right of reply, but then on September

14, 1993, denied Petitioner's petition

for writ of review prior to receiving

her Rule 57(b) reply?

ii

TABLE OF CONTENTS

Table of Authorities

Petition

Court Decisions and

Administrative Orders Below

Jurisdiction

Statement of the Case

1. The board's June 15 Order

fails to comply with the

legislatively mandated

public purpose of Labor

Code, Section 5908.5, to

prevent the careless and

arbitrary abrogation of

injured workers' rights by

stating evidence relied upon

and by specifying in detail

the reasons for denial of

those rights to assist the

reviewing court in

ascertaining the principles

relied upon.

= State court of appeal

granted petitioner an

extension until October 20,

1993, to exercise her right

of reply to the board

answer, but then on

September 14, 1993, denied

Petitioner's petition for

writ of review prior to

receiving her Rule 57 (b)

reply.

REASONS FOR GRANTING WRIT

iii

vi

~

11

(1) Certiorari should be

granted because the _ state

court of appeal in its

September 14 Order has

ignored the requisites of

the state statutory

requirement, enforcing Due

Process notice requirements

on an administrative body

for the purposes of (1)

demonstrating that the body

is performing its function

of review and (2) providing

appellate courts with notice

of the bases for the

administrative decision.

(2) Certiorari should be

granted, because Petitioner

was denied her Procedural

Due Process right of reply,

secured by California Rule

of Court S7 (Bb), when the

state court of appeal denied

her petition for review

prior to receiving her reply

to the board answer and

after granting her an

extension to file that

reply.

CONCLUSION

APPENDIX - DECISIONS, ORDERS,

CONSTITUTIONAL PROVISIONS AND

STATUTES

Court of Appeal

September 14 Decision

iv

13

17

20

Al

A2

Court of Appeal August 27

Reply Extension Order

Board June 15 Decision

Workers' Compensation Judge

April 9 Order

California Supreme Court

November 10 Order

Fourteenth Amendment,

U.S. Constitution

Art. XIV, §& 4,

California Constitution

’ | 4 : r } i ic

California Labor Code,

’ . 4 r i , 7

Section s20]

California Labor Code ,

od S &

Section 5950

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TABLE OF AUTHORITIES

CASES

Bridges v. Wixon,

326 U.S. 135 (1945) 18

Cleveland Bd. of Education v.

Loudermill,

470 U.S. 532 (1985) 18

Compton v. Naylor

392 F. Supp. 575 (D.C. N.D.

Texas 1975) 15

Fidelity & Casualty Co. of

New York v. WCAB (1980)

103 Cal. App. 3d 1001,

163 Cal. Rptr. 339

Granado v. WCAB (1968)

69 C. 2d 399

71 Cal. Rptr. 678

445 P. 2d 294 10,11

Interstate Commerce Comm. v.

Louisville & Nashville R.R. Co.,

227 U.S. 88 (1912) 19

Morgan v. U.S.,

298 U.S. 468 (1936) 20

North Carolina v. Pearce,

395 U.S. 711 (1969) 16

Ohio Bell Telephone Co., v.

Public Utilities Commission,

301 U.S. 292 (1937) 19

Ortwein v. Schwab,

410 U.S. 656 (1973) 15

vi

Painter v. WCAB (1985)

166 Cal. App. 3d 264

212 Cal. Rptr. 354

Robinson v. Beto,

426 F. 2d 597 (Sth Cir. 19709)

U.S Caceres,

74)

VY,

“440 U.S. (1979)

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES

FOURTEENTH AMENDMENT,

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UNITED STATES CONSTITUTION

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ARTICLE XIV, § 4,

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CALIFORNIA CONSTITUTION

la ,ig ' - ’

‘alifornia Labor Code,

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Sect Or $Z }/

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Section YSU

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California Rule of Court 5/(b)

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OV

No.

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1993

JUDITH SPALETTA,

Petitioner,

Vv.

CALIFORNIA WORKERS '

COMPENSATION APPEALS

BOARD, COUNTY OF

MENDOCINO AND CLAIMS

MANAGEMENT, INC.

Respondents.

PETITION FOR

WRIT OF CERTIORARI

TO THE COURT OF APPEAL,

STATE OF CALIFORNIA,

FIRST DISTRICT, DIVISION FIVE

Petitioner Judith Spaletta

respectfully prays that a Writ of

Certiorari issue to review the (1)

September 14 Order of the state court

of appeal denying Petitioner's

discretionary petition for review of

the June 15 Order of the California

Workers' Compensation Appeals Board, an

administrative review body, (2) that

June 15 Order of the Board and (3) the,

April 9 Order of an administrative

judge referred to in the state court of

appeal September 14 Order. Appendix,

at Page A2.

COURT DECISIONS AND ADMINISTRATIVE

ORDERS BELOW

The state court of appeal

decision, entered September 14, 1993,

denying discretionary review of the

Board's June 15 Order, which is not

published in official reports, is set

forth at Page A2 of the Appendix. The

state court of appeal order, entered

August 27, 1993, extending to October

20, 1993 Petitioner's time to reply to

respondents' answers to her petition

for writ of review, is set forth at

Page A3 of the Appendix. :

The June 15 Order of the

California Workers' Compensation

Appeals Board, an administrative review

body, which is not published in

official reports, is set forth at Pages

A4-A8 of the Appendix.

The April 9 Order, the order of an

administrative judge, which the state

court of appeal September 14 Decision

implements and upon which the Board's

administrative review June 15 Order is

based, which is not’ published in

official reports, is set forth at Pages

A9-All of the Appendix.

The November 10, 1993 order of the

Supreme Court of California, denying

Petitioner's discretionary petition for

review before that state court of last

resort, which is not published in

official reports, is set forth at Page

All of the Appendix.

JURISDICTION

The order of the Supreme Court of

the State of California was entered on

November 10, 1993. Jurisdiction of

this Court is invoked under 28 U.S.C.

1257, 28 U.S.C. 2101 (c) and Supreme

Court Rules 13.1 and 13.4.

STATEMENT OF THE CASE

The California Workers'

Compensation Appeals Board (hereafter

the "board") is an administrative body,

established under the Constitution and

Laws of the State of California.

California Constitution, Article XIV,

Section 4; California wabor Code

(hereafter "Labor Code"), Sections 3201

et seq. See Appendix, Pages A13-Al1b6.

Labor Code, Section 5908.5,

requires that, when the appeals board

renders a decision on a petition for

reconsideration of an order of an

administrative judge, that such a

decision must state in writing the

evidence relied upon by the board and

specify in detail the reasons for the

decision:

"Section 5908.5. Decision by board.

"Any decision of the appeals' board

granting or denying a petition for

reconsideration (emphasis added) or

affirming, rescinding, altering or

amending the original findings, order,

decision or award following

reconsideration shall be made by the

appeals board and not by a workers'

compensation judge and shall be in

writing, signed by a majority of the

appeals board members assigned thereto,

and shall state the evidence relied

upon and specify the reasons for the

decision (emphasis added).

"The requirements of this section shall

in no way be construed so as to broaden

the scope of judicial review as

provided for in Article 2 (commencing

with Section 5950) of this chapter."

The board opinion and order that

is the subject of the court of appeals

September 14 Order in this Petition and

designated herein as the June 15 Order

fails to attempt to meet the above Due

Process standard that is intended to

demonstrate that the board has properly

performed its function to provide

effective review. Painter v. WCAB

(1985) 166 Cal. App. 3d 264, 270-271,

212 Cal. Rptr. 354, 358. Fidelity &

Casualty Co. v. WCAB (1980) 103 Cal.

App. 3d 1001, 1016, 163 Cal. Rptr. 339,

347.%

1 The issue of the violation of

Procedural Due Process through careless

and arbitrary action under Labor Code,

Section 5908.5 was first raised,

immediately after the entering of the

board's June 15 Order, in the petition

filed by Petitioner for discretionary

review of that order by the court of

appeal, citing Fidelity & Casualty Co.

v. WCAB, supra, at 347. Petitioner's

Petition to Court of Appeal, at Page 9.

1. The board's June 15 Order fails to

comply with the legislatively mandated

public purpose of Labor Code, Section

5908.5, to prevent the careless and

arbitrary abrogation of injured

workers' rights by stating evidence

relied upon and by specifying in detail

the reasons for denial of those rights

to assist the reviewing court in

ascertaining the principles’ relied

upon.

The board issued the June 15 Order

denying Petitioner's petition for

reconsideration, failing therein to

perform its duty pursuant to Labor

Code, Section 5908.5:

a. To make a factual determination of

the content of the reconsidered April 9

Order that the board in its conclusory

statement in the June 15 Order argues

is "an interim or procedural order not

subject to reconsideration;" June 15

Order, Appendix, at Page A8;

b. To identify "the substantive

question" in the June 15 Order about

which the board offers there has no

final decision; June 15 Order, at

Appendix Page A7; and

c. To state legal authority in the June

15 Order for the board's standard of

review that is not inconsistent with

the outdated 1985 citation stated

therein; June 15 Order, at Appendix

Pages A7-A8.?

2 The board August 17 answer, to

which Petitioner was not afforded her

Rule 57(b) right of reply to the state

court of appeal, cited cases decided in

1987, 1988 and 1989 in support of its

proposed standard of review in the June

15 Order. Board August 17 Answer (8:11-

133 8:24-25). These cases sustain

Petitioner's argument in her petition

to the state court of appeal that the

1985 citation in the June 15 Order is

outdated. Petitioner's Petition to

Court of Appeal, at Pages 33 to 37.

The board's June 15 Order, based

on these failures, dismissed Petit-

ioner's petition for reconsideration,

without considering (1) the effective

denial, without a hearing prior to the

issuance of the reviewed April 9 Order

on the issues of Petitioner's injured

worker right to the presence of an

attorney and her’ statutorily-secured

right to the presence of her physician

to monitor the defense medical

examination and (2), most importantly,

without consideration of information

about the absence of availability of

those professionals on the fast-

approaching April 26 examination date

scheduled in that April 9 Order:

"The WCJ's present order compelling

applicant's attendance at a medical

examination with certain protections

for applicant is an interim or

procedural order not subject to

reconsideration." June 15 Order, at

Appendix Page A8.

The board in the June 15 Order has

a duty under’ state law to prevent the

careless and arbitrary abrogation of

Petitioner's rights, protecting the

medical privacy of her physical and

psychological person, secured by the

California Constitution, by stating

evidence relied upon and by specifying

in detail the reasons for denial of

those rights to assist the reviewing

court in ascertaining the principles

relied upon by the board in ,abrogating

those protections. Labor Code,

Section 5908.5. Granado v. __WCAB,

(1968) 69 C. 2d 399, 404-407, 71 Cal.

Rptr. 678, 682-683, 445 P. 2d 294, 298,

299. Fidelity & Casualty Co. v. WCAB,

supra, 103 Cal. App. 3d, at 1016, 163

10

Cal. Rptr., at 347.

The board has the duty to construe

workers' rights favorably for’ the

protection of an injured worker's basic

rights to the presence of an attorney

and her attending physician, as well as

other protections, at a proposed

defense medical examination. Labor

Code, Section 3202. See Pages 13 and

14 hereof. Granado v. WCAB, supra, 69

C. 2d, at 404, 71 Cal. Rptr., at 682,

445 P. 2d, at 298.

2. State court of appeal granted

petitioner an extension until October

20, 1993, to exercise her right of

reply to the board answer, but then on

September 14, 1993, denied Petitioner's

petition for writ of review prior to

receiving her Rule 57(b) reply.

The court of appeal on August 27,

1993, granted Petitioner an extension

until October 20, 1993, to reply to the

board answer to her petition for writ

11

of review. Appendix, at Pages A2-A3.

California Rule of Court 57(b)

reads as follows:

"(b) [Answer and briefs] Within 20 days

after service of the petition, the

board and any real party in interest

may serve and file or join in the

filing of an answer and brief. Within

10 days after service of an answer, the

petitioner may serve and file a reply.

Service of the answer and reply shall

also be made upon all adverse parties."

Nevertheless, that appellate

court, after granting Petitioner an

extension to exercise her Rule 57(b)

reply right, filed on September 14,

1993, its order denying her petition

and sustaining the scheduling of the

medical examination under the April 9

Order. Appendix, at Pages A2-A3.

The court of appeal order was

entered on September 14, five (5) weeks

prior to the date due for Petitioner's

reply. Petitioner had not yet filed

12

her Rule 57(b) reply to the board

answer. 3

. 3 The issue of the violation of

Petitioner's Procedural Due Process

right of reply pursuant to California

Rule of Court 57(b) was first raised,

immediately after the entering of the

court of appeal September 14 Order, in

Petitioner's petition for discretionary

review to the State Supreme Court, at

Pages i, 6 and 15.

REASONS FOR GRANTING WRIT

(1) Certiorari should be granted

because the state court of appeal in

its September 14 Order has ignored the

requisites of the state statutory

requirements, enforcing Due Process

notice requirements on an admin-

istrative body for purposes of (1)

demonstrating that the body is

performing its function of review and

(2) providing appellate courts with

notice of the bases for the

administrative decision.

The California Legislature has

spoken in the workers' compensation act

that:

13

es

"This division and Division 5

(commencing with Section 6300) shall be

liberally construed by the courts with

the purpose of extending their benefits

for the protection of persons’ injured

in the course of their employment."

Labor Code, Section 3202.

The California Legislature under

the specific authority of the State

Constitution has provided a means for

discretionary court review of

administrative board decisions in the

provisions of the workers' compensation

act, with the stated purpose that such

protections be liberally construed in

the favor of injured workers. Article

XIV, Section 4; Labor Code, Section

5908.5; Labor Code, Section 3202. The

board may not replace that Legislative

mandate and place limitations on an

injured worker's right to seek such

review which are discriminatory,

arbitrary and contrary to that

14

legislative policy. Labor Code,

Section 5908.5. See Pages 7 to 11

hereof.

Procedural Due Process is

fulfilled by an opportunity to be heard

in an initial hearing which is fair and

not unreasonably burdened. In this

case, the state workers' compensation

law provides an enlightened and un-

fettered means of board review, secured

by Labor Code, Section 5908.5.

Contrary to that stated policy, the

board has placed its own unreasoned

distinctions that impede open and equal

access to board review and to later

appellate court review by an injured

worker. Ortwein _v. Schwab, 410 U.S.

656 (1973). See also Compton _v.

Naylor, 392 F. Supp. 575 (D.C. N.D.

Texas 1975).

aS

* a aneaiaeesettalallll

Due Process requires that once the

state establishes avenues of review,

those avenues must be kept open and

free of unreasoned distinctions that

impede open and equal access to the

courts. North Carolina v. Pearce, 395

U.S. 711 (1969). Here, the statutory

scheme encouraged open and equal access

to board review and later appellate

review by an injured worker

representing herself. Here, contrary

to that statutory scheme, Judith

Spaletta was not welcomed by the

reviewing administrative body, although

that body was cautioned against

unreasoned denial of access by the

statutory scheme itself. Labor Code,

Section 3202; Labor Code, Section

5908.5. See in contrast Robinson vv.

Beto, 426 F. 2d 797 (5th Cir., 1970).

16

(2) Certiorari should be granted,

because Petitioner was denied her

Procedural Due Process right of reply,

secured by California Rule of Court 57

(b), when the state court of appeal

denied her petition for review prior to

receiving her reply to the board answer

and after granting her an extension to

file that reply.

The state court of appeal granted

Petitioner an extension until October

20, 19°93, to exercise her right of

reply to the board answer, but then on

September 14, 1993, denied Petitioner's

petition for review without receiving

her Rule 57(b) reply, a full five (5)

weeks before that reply was-~ due.

Appendix, at Pages A2-A3.

Rule 57(b) and the extension

provided by the court of appeals

thereto provided notice to Petitioner

Spaletta that she would have-= an

opportunity to rebut the answer of her

adversary respondent. This right of

17

rebuttal was not honored.

The denial of Petitioner's Rule

57(b) rebuttal right denied injured

worker Spaletta her Due Process right

to give in rebuttal her side of the

story. Cleveland Bd. of Education v.

Loudermill, 470 U.S. 532, 546 (1985).

The violation of a rule designed to

afford due process of law by providing

safeguards against unfair procedures

denies a right secured by the Due

Process Clause. U.S. v. Caceres, 440

U.S. 741, 749 (1979), citing Bridges v.

Wixon, 326 U.S. 135, 152-153 (1945).

The summary dismissal of injured

worker Spaletta's petition for review

to the court of appeal, without an

opportunity for rebuttal | to

respondents' answer does not indicate

what was done by the appellate court in

18

both finding facts and applying law.

From the standpoint of Due Process -

the protection of the individual

against arbitrary action - we do not

Know upon what facts or law the state

appellate court rested to make its

conclusion. Ohio Bell Telephone Co. Vv.

Public Utilities Comm., 301 U.S. 292,

302 (1937), Cardozo, J.

There is no way for Petitioner to

maintain her rights without being given

the opportunity for rebuttal provided

by Rule 57(b). Interstate Commerce

Comm. v. Louisville & Nashville R. R.

Co., 227 U.S. 88, 93 (1912). See also

Fidelity & Casualty Co. v. WCAB, supra,

aus 6 Cel. App. 3d, at 2026, 163 ¢al.

mpee., a¢ 347. Without that right of

rebuttal noticed to Petitioner in Rule

57(b) and recognized by the court of

19

aa

appeal in its extension of time to file

her reply, Petitioner Spaletta is

operating in an essentially structure-

less procedural environment where. the

vigilance of the Petitioner provides

the only insurance against arbitrary

and capricious denial of Due Process.

The full hearing requirement of a

judicial proceeding requires that the

facts that underlie an order result

from the interplay of argument. Morgan

v. U.S., 298 U.S. 468, 480-481 (1936).

CONCLUSION

For the above reasons, a writ of

certiorari should issue to review the

state appellate court September 14

Order and the board June 15 Order and

administrative judge's April 9 Order

embraced thereby.

20

aati,

In the alternative, Petitioner

respectfully requests this Court, in

accordance with Supreme Court Rule

16.1, to summarily reverse the court of

appeal September 14 decision and direct

the court of appeal to order the board

to review and decide Petitioner's

petition for reconsideration of the

administrative judge April 9 Order, in

accordance with the standards set forth

in Labor Code, Section 5908.5.

Dated: February 7, 1994

Respectfully submitted,

/s/ James Reyer, Esq.

James Reyer, Esquire

Post Office Box 5876

Santa Rosa, CA 95402-5876

(707) 576-1244

Counsel to Petitioner

21

™

ell

Al

APPENDIX

DECISIONS, ORDERS, CONSTITUTIONAL

PROVISIONS AND STATUTES

A2

COURT OF APPEAL OF THE STATE OF

CALIFORNIA

IN AND FOR THE

FIRST APPELLATE DISTRICT

DIVISION FIVE

FILED

SEP 14 1993

COURT OF APPEAL

First Dist.

RON D. BARROW,

Clerk

Judith Spaletta,

Petitioner,

vs.

California Workers'

Compensation No. A0Q62593

Appeals Board, WCAB Case No.

County of Mendocino, 87 SRO 51387

et al.,

Respondents.

BY THE COURT:

The petition for review is denied.

The matter is returned to the Workers’

Compensation Appeals Board for the

purpose of allowing respondent County of

Mendocino to reschedule a medical

examination in compliance with Workers'

Compensation Judge David Applen's Order

Compelling Medical Examination dated

April 9, 1993.

Dated: SEP 14 1993 PETERSON, P.J.

A3

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION FIVE

JUDITH SPALETTA, lst Civ. No. A0Q62593

Petitioner,

“versus.

CALIFORNIA

WORKERS COMPENSATION

APPEALS BOARD, CASE NO.

COUNTY OF MENDOCINO, 87 SRO 51387

and CLAIMS MANAGEMENT, INC. 87 SRO 51333

Respondents

ORDER EXTENDING TIME

TO FILE ANSWER REPLY

Good cause appearing, it is ordered

that Petitioner, JUDITH SPALETTA, may

have until and including October 20, 1993

within which to file a reply to

respondents' answerss [sic] to the

petition for writ of review.

Dated: AUG 27 1993

KING, J.

ACTING Presiding Justice

A4

WORKERS' COMPENSATION APPEALS BOARD

STATE OF CALIFORNIA

JUDITH SPALETTA, Case No.

Applicant, 87 SRO 51333

vs. 87 SRO 51387

COUNTY OF MENDOCINO;

Permissibly Self-Insured,

Defendant(s).

OPINION AND ORDER DISMISSING

PETITION FOR RECONSIDERATION

Applicant Judith Spaletta, in propria

persona, seeks reconsideration of the

order issued by the workers' compensation

judge ("WCJ") on April 9, 1993. The WCJ

ordered applicant to appear for a medical

examination by Thomas Leonard, M.D., on

April 26, L333. The WCJ ordered

defendant to provide a certified

shorthand reporter to transcribe the

history taking and the physical

examination process and to prepare a

typed transcript of the proceedings to

file with the Board with a copy to

applicant. He ordered that applicant may

A

U1

employ at her own expense a physician to

be present at the examination. He

allowed applicant to have an attorney, if

she wishes, attend the medical

examination with the qualification that

the attorney be one who represents her in

these proceedings with prior notification

to the Board. The WCJI granted

applicant's request to have her husband

present in the examination room.

precluded the performance of any

diagnostic tests or procedures which were

painful, protracted, or intrusive without

further specific order by the Board,

except for a blood sample which, if a Dr.

Leonard deemed necessary, to be drawn by

an independent laboratory geographic

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convenient to applicant. Except as

specifically granted, the WCJ denied

applicant's request for a protective

A6

order.

Applicant contends error. She

claims that she is unable to pay for the

cost of her personal physician Jeffrey

Anderson, M.D., at $250.00 an hour to

attend the examination with her. She

requests an order for defendant to prepay

Dr. Anderson for an anticipated cost

between $1,250.00 and $2,000.00, and to

provide at least 6 weeks advanced notice

of the medical examination to allow Dr.

Anderson to plan for the examination.

She alleged that his presence is

necessary to provide a balanced

examination. She claims that she is

entitled to medical-legal costs.

Applicant further requests she be

allowed to tape record the examination

because the reported can make mistakes

and a transcript does not reflect the

tone and manner of an examination. She

requests that Dr. Leonard be ordered to

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A8

Practice ([(Cont.Ed.Bar 1985) 10.4, p.

353.) The WCJ's present order compelling

applicant's attendance at a medical

examination with certain protections for

applicant is an interim or procedural

Order not subject to reconsideration.

Therefore, we will dismiss the petition

for reconsideration.

For the foregoing reasons,

IT IS ORDERED that applicant's

Petition for Reconsideration filed April

23, 1993, be, and hereby is, DISMISSED.

WORKERS' COMPENSATION APPEALS BOARD

/s/ John S. Oda

I CONCUR /s/ J. Wiegand

/s/ Jacob Margosion

DATED AND FILED IN SAN FRANCISCO,

CALIFORNIA

JUN 15 1993

SERVICE BY MAIL ON SAID DATE TO ALL

PARTIES SHOWN ON THE OFFICIAL ADDRESS

RECORD

mnl [SEAL]

AY

WORKERS' COMPENSATION APPEALS BOARD

OF THE STATE OF CALIFORNIA

JUDITH SPALETTA, Case No.SRO 51387

Applicant,

vs.

COUNTY OF MENDOCINO, FILED

Defendants. APR 9 1993

ORDER COMPELLING MEDICAL EXAMINATION

After reviewing the defendant's

February 24, 1993 Petition Compelling

Attendance at Medical Examination and the

responses thereto and based on the

information and oral arguments presented

at the conference of April 2, 1993, good

cause appearing,

IT IS ORDERED that Judith Spaletta

appear for medical examination by Thomas

Leonard, M.D. at 95 Montgomery Drive

Suite 222, Santa Rosa, California, at

3:45 p.m. on April 26, 1993.

IT IS FURTHER ORDERED that defendant

County of Mendocino have present at the

the examination a certified shorthand

A10

reporter for the purpose of transcribing

the history taking and physical

examination process itself. © The

stenographer shall prepare a typed

transcript of the proceeding with the

Original of that transcript to be filed

with the WCAB and a copy provided to

Judith Spaletta at defendant's cost. If

Judith Spaletta so desires she may employ

at her own expense a physician to be

present at this examination. Should she

choose to retain an attorney to represent

her in these proceeding [sic] that

attorney, after giving notification to

the Board of his representation in this

matter, shall also be permitted to attend

the examination. Judith Spaletta's

request to have her husband present in

the examination room is granted.

ae ee ee ee ee ee wo bwhetied

All

Judith Spaletta shall not be required

to endure any diagnostic test or

procedure that is painful, protracted or

intrusive without further specific orders

by this Board, except that in the event

that Dr. Leonard believes a blood sample

is required this procedure is authorized

so long as the blood is drawn by an

independent laboratory that is

geographically convenient to the

applicant.

Except as specifically granted above

Judith Spaletta's request for protective

orders are hereby denied. :

/s/ DAVID A. APPLEN

Workers' Compensation Judge

Served by mail on persons as shown on the

Official Address Record

DATE: APR 9 1993 by L. Hunt

/s/ L. Hunt

Al2

First Appellate District,

Division Five, No. A062593

S035180

IN THE SUPREME COURT OF THE STATE OF

CALIFORNIA

IN BANK

JUDITH SPALETTA, Petitioner,

V.

WORKERS’ COMPENSATION APPEALS. BOARD

Et Al., Respondents

SUPREME COURT

FILED

NOV 10 1993

Robert Wandruff Clerk

DEPUTY

Petition for review DENIED.

Arabian

Acting Chief Judge

st

ey PbO RT Rhea GA as A ORS eee

Al13

CONSTITUTION OF THE

UNITED STATES OF AMERICA

AMENDMENT XIV

Section 1. All persons born or

naturalized in the United States and

subject to the jurisdiction thereof, are

citizens of the United States and of the

State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall

any State deprive any person of life,

liberty, or property, without due process

of law; nor deny to any person within its

jurisdiction the equal protection of the

laws.

CALIFORNIA CONSTITUTION

ART. XIV, §$ 4

§ 4. Workers' compensation T

Legislature is hereby expressly veste

with plenary power, unlimited by an

provision of this Constitution, t

create, and enforce a complete system o

workers' compensation by appropriate

legislation, and in that behalf to create

and enforce a liability on the part of

any or all persons to compensate any or

all of their workers for injury or

disability, and their dependents for

death incurred or sustained by the said

workers in the course of their

employment, irrespective of the fault of

any party. A complete system of workers’

compensation includes adequate provisions

for the comfort, health and safety and

general welfare of any and all

Al4

workers and those dependent upon them for

support to the extent of relieving from

the consequences of any injury or death

incurred or sustained by workers in the

course of their employment, irrespective

of the fault of any party; also full

provision for securing safety in places

of employment; full provision for such

medical, surgical, hospital and other

remedial treatment as is requisite to

cure and relieve from the effects of such

injury; full provision for adequate

insurance coverage against liability to

pay or furnish compensation; full

provision for regulating such insurance

coverage in all its respects, including

the establishment and management of a

State compensation insurance fund; full

provision for otherwise securing the

payment of compensation; and full

ae ; Fagg! '

= Ladint | imin3 -

bod ‘t) lt) “soe ;

€ , 13 )

Matter arising under such legislation ’

(emphasis provided) to the end that the

administration of such legislation shall

accomplish substantial justice in all

cases expeditiously, inexpensively, and

without encumbrance of any character; all

of which matters are expressly declared

to be the social public policy of this

State binding upon all departments of the

State government.

The Legislature is vested with

plenary powers, to provide for the

settlement of any disputes arising under

such legislation by arbitration, or by an

industrial accident commission, by the

Al5

courts, or by either, any, or all of

these agencies, either separately or in

combination, and may fix and control the

method and manner of trial of any such

dispute, the rules of evidence and the

manner of review of decisions rendered by

the tribunal or tribunals designated by

it; provided, that all decisions of any

such tribunal shall be subject to review

by the appellate courts of this State.

The Legislature may combine in one

statute all the provisions for a complete

system of workers' compensation as herein

defined.

The Legislature shall have power to

provide for the payment of an award to

the state in the case of death, arising

out of and in the course of the

employment, of an employee without

dependents and such awards may be used

for the payment of extra compensation for

subsequent injuries beyond the liability

of a single employer for awards to

employees of the employer.

Nothing contained herein shall be

taken or construed to impair or render

ineffectual in any measure the creation

and existence of the industrial accident

commission of this State or the State

compensation insurance fund, the creation

and existence of which, with all the

functions vested in them, are hereby

ratified and confirmed.

Al6

California Labor Code, Section 3201

§3201. Divisions 4 and 5; Purpose

This division and Division 5, (commencing

with Section 6300) are an expression of

the police power and are intended to make

effective and apply to a complete system

of workers' compensation the provisions

of Section 4 of Article XIV of the

California Constitution.

California Labor Code, Section 5950

$5950. Writ of review; Application

Any person affected by an order,

decision, or award of the appeals board

may, within the time specified in this

section, apply to the Supreme Court or to

the court of appeal for the appellate

district in which he resides, for a writ

of review, for the purpose of inquiring

into and determining the lawfulness of

the original order, decision, or award or

of the order, decision, Or award

following reconsideration. The

application for writ of review must be

made within 45 days after a petition for

reconsideration is denied, or if a

petition is granted or reconsideration is

had on the appeal board's own motion,

within 45 days after the filing of the

Order, decision, cr award following

reconsideration.