2011-SPD-1 (2011). JOSE H. HERNANDEZ ADJ3329537 (ANA 0360928) vs. OPINION AND ORDER DISMISSING PETITION FOR REMOVAL AMS STAFF LEASING.

• Court: California

California Workers Compensation Decisions 2011. Significant panel decisions 2011-SPD-1 (2011). JOSE H. HERNANDEZ ADJ3329537 (ANA 0360928) vs. OPINION AND ORDER DISMISSING PETITION FOR REMOVAL AMS STAFF LEASING WORKERS' COMPENSATION APPEALS BOARD STATE OF CALIFORNIA JOSE H. HERNANDEZ, Applicant, vs. AMS STAFF LEASING,(fn1) Defendant(s).Case Nos. ADJ2182149 (LAO 0837423)ADJ3329537 (ANA 0360928) OPINION AND ORDER DISMISSING PETITION FOR REMOVAL Defendant sought removal, requesting that the Appeals Board rescind the Orders filed and served on July 27, 2010, wherein the workers' compensation administrative law judge (WCJ) ordered defendant to produce its claims adjuster for deposition on September 28, 2010, and "to produce at said deposition the original and/or copies in his/her control of each of the documents identified in Appendix A, Item #3 of applicant's Notice of Taking Deposition and Demand for Production of Documents, and all utilization review referrals and responses." Defendant contended that it would be irreparably harmed by the WCJ's Orders, arguing that the broad scope of discovery ordered would require deposition testimony and document production that exceeds any reasonable or established needs of applicant. Defendant further contended that it was prejudiced in pursuing removal because the WCJ did not explain the reasons for his decision, the exhibits offered by the parties were not admitted into evidence, no summary of evidence was prepared, the issues and stipulations were not formulated on the record, and the exhibits relied on by the WCJ were not scanned into the Electronic Adjudication Management System (EAMS) "due to a back log [sic] in scanning." (Petition to Remove, 4:20.) We have considered defendant's petition and applicant's answer, and we have reviewed the record in this matter. The WCJ prepared a Report and Recommendation on Petition for Removal (Report) recommending that the petition be denied. In preparing this opinion for filing and service, we discovered that this matter was settled by a Compromise and Release (C&R), which was approved by a different WCJ on January 18, 2011. But for that discovery, we would have granted removal, rescinded the WCJ's Orders, and returned the matter to the trial level for preparation of a proper record, because the record in this case, as discussed below, is inadequate and incomplete. Those actions are no longer necessary because approval of the C&R has rendered defendant's petition moot. Nevertheless, defendant's petition for removal is still pending and must be acted upon. Given that the issues raised in the petition are now moot, we will dismiss it. BACKGROUND According to defendant's petition and applicant's answer, applicant served a Notice of Taking Deposition and Demand for Production of Documents on February 26, 2010. This document was listed as an exhibit by applicant on the pre-trial conference statement, but we were unable to find it in EAMS or in paper format in the legacy file. On March 18, 2010, defendant served a Motion to Quash Notice of Taking Deposition and Demand for Production of Documents and Motion for Protective Order, which has not been scanned into EAMS. Applicant stated that he filed an Opposition to Motion to Quash and for Protective Order and Motion to Compel the Deposition on March 24, 2010, and this document was also listed as an exhibit on the pre-trial conference statement; but we saw no paper or electronic record of this document. The parties stipulated at the June 9, 2010 mandatory settlement conference that applicant sustained industrial injury to his back on October 21, 2001, and that he claimed injury to multiple additional body parts. In the pre-trial conference statement, which is in EAMS, the parties identified the issues in dispute, including "defendant's objections to request for production" and "motion to compel claims adjustor's deposition." Applicant listed numerous documents as exhibits. According to the pre-trial conference statement, as it appears in EAMS, defendant did not list any exhibits. We located in the paper, or legacy, file a stack of documents labeled "Petition for Removal additional defendant's exhibits." According to defendant, these exhibits were attached to the petition for removal. The Minutes of Hearing for the July 26, 2010 trial, also available in EAMS, indicate that the matter was taken off calendar and include the following comment: "After consideration of Defendant's objections - Order Compelling Deposition and limited production of documents - Signed." In their petition and answer, the parties gave widely differing accounts of what happened at trial. Defendant claimed exhibits were offered by both parties...