California: The Use of a Special Master in Complex Discovery Disputes

In Von Ritzhoff v. Ogden Entertainment Food Services, 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB rescinded the WCJ’s order appointing the applicant’s attorney as the special master assigned to monitor the depositions in the applicant’s workers’ compensation case. While the WCAB agreed with the WCJ that a special master should be appointed to facilitate the completion of discovery in this case, the WCAB concluded that to preserve the appearance of impartiality, it was best to select a special master from outside the Van Nuys district office of WCAB. The WCAB referred the matter to the Associate Chief Judge for the South to select a special master by utilizing a selection procedure for arbitrators as set forth in Labor Code § 5270.5(d) and 8 Cal. Code Reg. § 10995(d).

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Commentary:

In 2012 and again 2014, the Workers’ Compensation Appeals Board (WCAB) has confirmed the Workers’ Compensation Judge’s (WCJ’s) ability to appoint a “special master” so as to manage complex discovery disputes in workers’ compensation cases (see, Borrayo v. Tobar Industries, 2012 Cal. Wrk. Comp. P.D. LEXIS 10 and Garcia v. Arun Enterprises dba Subway, 2014 Cal. Wrk. Comp. P.D. LEXIS 567).  The power of the WCJ to appoint a “special master” can be found in Labor Code Section 111, which vests the WCAB with broad judicial powers so as to adjudicate workers’ compensation cases.

Von Ritzhoff is not only an excellent illustration as to those types of cases where a “special master” should be appointed, but also of the limitations that will be placed on the WCJ by the WCAB if he or she does not exercise this authority carefully. 

Von Ritzhoff involved the defendant taking an ex-wife’s deposition.  The WCJ specifically cited the witnesses prior objection to being deposed, the potential harassment that could occur by defendant in taking her deposition, as well the witness’ privacy interests as being the basis for his appointment of a “special master”.

There are many, many discovery disputes that are difficult to resolve by submitting them to a WCJ. For example, what about subpoenaed records from a family therapist whose records reflect discussions with other family members? Should a WCJ review all of the disputed records redacting those that may violate the other family member’s rights to privacy? What about those cases where defendant alleges that employee is interfering with their discovery rights as a result of obstructive behavior? The examples of where a “special master” might be appointed are numerous.

As Von Ritzhoff further points out, however, the WCJ must be very careful not to appoint a “special master” that might appear biased towards either party.  The panel in Von Ritzhoff advocates for a procedure analogous to that used for the selection of arbitrators (8 Cal. Code Reg. § 10995(d)) administered by the Associate Chief Judge so as to preserve impartiality. If more parties request “special masters”, it is unclear whether the Associate Chief Judges are staffed to administer these disputes. The procedure identified by the panel in Von Ritzhoff does highlight the importance being placed by the WCAB on preserving impartiality in these matters.

In conclusion, the use of a “special master” in a workers’ compensation case is not something that most practitioners may be aware of. However, several recent WCAB panel cases would indicate, though not frequently used, it is available. More importantly, the use of a “special master” could prove to be an extremely useful tool in the appropriate case.

Read the Von Ritzhoff noteworthy panel decision.

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