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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1229%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1006

## Text

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

Al3
A16
y: } ‘a

a

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,

r rr ocr rmonc ‘ eke mrtn la
UNITED STATES CONSTITUTION
: oa a “
6, Ve LS, | As 16, i ly
mTeCTE wrt P
ARTICLE XIV, § 4,
. - rand a - ‘ala Torn mrrmnTre y
CALIFORNIA CONSTITUTION
la ,ig ' - ’
‘alifornia Labor Code,
an yA
Sect Or $Z }/
yA
Sectior $2U2Z
c , c fi. Cc c
>€ Cty 10°F > PUSS « ,
“ 14,
c £ ead ft
Section YSU
f= 7 . ie cr , ‘ Ee ’
California Rule of Court 5/(b)
“ in ie as am "
BS, bas S66 4276 8
wr +
» a

y P
4
Oy, tae
5,
r
ty
c co
= r
4 =» 7
*)
/ ~~ 7

N)

vy

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

ey)

t-

t—
Ke

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

clarify his requirement of 48 business

} ; c ‘ nr r ee an ¢ ms r a } . r f

hours advance notice for canceiiation ol

+ r > r _. + / ¥ > + ¢ > v + r
rié examina A Jibs »Ne .Seuves bia te ow

Tatar - ot = | > ~ rx r + £ =~ + r + mr o>
Lif tidal a I AU ¢ i I i a | i I L itlé
r ar. " ? cr. Y > ‘ye mrt or rere
De iu S€é i JW i © rOAV GilG bla A114

Mas Ts f\T f ¥ ty y FP » v s/f rt
2) € A ) Aus rev CW ) il & JLUy
‘ ! + + +
t Py rq r rr / art L Z Z ¥ s -
we Wii Jd Ad oh i Gwe ai , £ i A VUi) ge,
Wworryr) < fief2rart ‘ate
i e\ALIOaA A 4 A Jibs
A ra * + ¥ + y roc , / - + ¢
/ s - 4 4 4 A> + s | 4 s A A - / 4 ,
i
rrryr _¥ ‘ manna nr , y , , - _we ey -
b/s IWC I - / i A 1é Aria / a/ ¥ P a4 OCA 4 / . } ,
i j 4 d ‘ d
Tatan. +* 7, | r - + r m~rriay ror r -
agqqrieveda hs) y 4 P71 22 UCL yg A he a de , di
> | 4
T ‘Gu k k avs
Y4rarr ( ar Ort A } >
GWwaia A-« LiGh) « ,UUL , yf JAYS Ams \A ae ¢@
car ?, ff, £ “a rw + r- - roa a a a a ae | -
» i= “4
DIV « , IewVvVades A 4 — A Ji AJLUVCS bin GS
njordaerc« wr or are S ¢ ern etfore >
As s@ fk > s Wilia Wad Ad - AI YW UT nd 4 J » a
‘an =" 5 | 1c r 5, < marta nr - roe c r ran + “reo
4EeCi18Si100N . lila e Jib ~ 4i& Sune asesa VG
— orann are nn o Maar ~~ - eo r 9 -
= Q i=) = a“ a
JUE SL I Aas = >* - as\/ vu et iii - A ee ae CAN —/ y -
+
7 ‘ ‘ - - —_
VPe?T 6. Ff 3 ea ae Ba Recoqnsiqera eke
- oe ee en ee ae a - > =~ wwe YVsivd «+ AN & HK LH & J 4s ot
/ >: ‘ r.7T 1 Qn ~ -
7 rns 2 Or ra r ANM@enanr an
(CL@alLLEOrnia WOFrACIS COMDPDeEeNSAaALLO?
bs

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1229%3A1. Public record. Not legal advice.