All of the discussion with applicant concerning his motion was on the record.

Applicant first moved to declare unconstitutional the Labor Code sections and other provisions governing workers’ compensation which result in him not being able to obtain an attorney to represent him. I advised him that I believed I had no power to address that issue and that, indeed, only the court of appeal could probably do so. However, I did tell him that perhaps his first step in raising the issue could be by petition for removal to the Appeals Board in San Francisco, if it is his desire to pursue the motion.

After that, I directed the attention of the parties to the carrier’s motion to quash the two subpoenas duces tecum. Recognizing that there did appear to be technical defects, as pointed out by Liberty, with applicant’s subpoenas, I nevertheless invited them to focus on how appropriate information could be provided to applicant to move his claims along towards resolution.

1. The carrier will provide a privilege log identifying by reasonably specific classification the types of documents deemed subject to the attorney-client privilege or the work product privilege, with citation of authorities to substantiate any claim of privilege. The balance of the request for manuals, regulations, or guidelines for determining what was privileged was deemed overbroad and not calculated to led to the discovery of admissible evidence.

2. This second request will be dealt with in the same way as the first, but counsel agreed to provide to applicant copies of any written documentation that will form the basis of the carrier’s lawful, good faith, non-discriminatory personnel action defense. And he will identify the persons at Liberty who made the decision to deny applicant’s claim. The carrier will also provide applicant copies of any documents upon which it will rely to establish timely denial of applicant’s claim before expiration of 90 days after he filed his claim form.

3. It was determined from applicant that this request basically seeks much of the same information requested in paragraph two of his letter to Collins.

4. This request for copies of Liberty’s manuals or regulations or procedures concerning how to gather information regarding an injured workers’ claim was deemed overbroad and the motion to quash is granted.

5. Counsel assured me that there was no transcript per se. To the extent that Liberty’s conclusion that applicant’s termination was not discriminatory in nature may be reflected in the claims file, the previous discussion of what portions, if any, of the claims file would be provided to applicant suffices to cover this request.

6. Again, this request for information is basically covered by what has been mentioned above.

7. Applicant conceded that this request and others were basically redundant or duplicative requests, written by a non-lawyer trying to describe in various ways the types of information he wants. The information sought has previously been discussed.

8. Because only the timing of the first denial of applicant’s claim on December 18, 1996 is pertinent to the presumption of injury issue, as the second denial dated January 17, 1997 is conceded to have been issued more than 90 days after applicant filed his claim form, the information sought in this paragraph is not calculated to lead to discovery of admissible evidence and it is therefore ordered quashed.

9. This last item is deemed duplicative of the other items previously discussed and, to that extent, the previous resolution will suffice.

SUBPOENA TO MIKE KANIENSKI

(UPS DISTRICT MANAGER)

1. The information applicant seeks is intended to demonstrate that he did not abandon his job, which was apparently the grounds for terminating his employment, and that UPS treated him differently in determining to fire him than it treats other similarly situated employees. Aside from the obvious relevance to the issues in this case of why applicant was fired, it seems clear that Liberty’s determination to defend the case on the grounds of lawful, good faith, non-discriminatory personnel action would entitle applicant to delve into information that could show that he was not treated the same as other employees in regard to the grounds of his termination. Accordingly, it is reasonable that the carrier provide to applicant copies of information in writing that will be offered at trial to prove the grounds of applicant’s termination and to establish the above-mentioned defense, including documents that may reflect company procedures or rules that formed part of the thought processes leading to the determination to terminate applicant’s employment. It does not appear likely to me from the discussion that bargaining notes or arbitration summaries, if they exist, would be likely to lead to the discovery of admissible evidence on those issues. In regard to this point and as to some other points, applicant was advised he would be entitled to take depositions of witnesses to further develop information on whether any documentation sought in this paragraph may lead to the discovery of admissible evidence.

2. Applicant says the union is supporting his position. Accordingly, it seems reasonable that he obtain whatever documentation he may be seeking concerning union statements from the union. To the extent that this paragraph seeks documentation that will be used by the carrier to demonstrate that applicant was not treated in a discriminatory manner, the previous discussion will suffice. In regard to the request for names and locations of employees who have been subjected to discipline for violating the same policy for which applicant was discharged, the carrier is ordered to provide those names and locations.

3. The carrier takes the position that the UPS investigative procedures would not be relevant. However, to the extent that company policy may be reflected in manuals, written memos, or other guidelines, concerning disciplinary action that may or may not be taken against employees for attendance related problems, those documents might well lead to admissible evidence to demonstrate that applicant’s job terminati9on or the process of reasoning used by any supervisor to reach the decision to fire him.

4. Applicant acknowledged that this paragraph seeks information the same as what he was seeking in the Liberty subpoena, just coming at it from a different direction. Basically, he wants to know the basis for denial of his claim. The same privilege problems may arise in relation to this request, and the same resolution regarding the Collins subpoena seems appropriate.

5. Again, this request seeks the same sort of information previously discussed concerning the decision to deny his claim and to defend his job termination as non-discriminatory. I also advised applicant that he was more likely to obtain admissible evidence by taking the deposition of responsible parties.

6. It was agreed that applicant will be provided with a copy of his personnel file.

7. This duplicates the previous request for documentation that will be used to substantiate the grounds for terminating applicant’s employment and to show that it was a lawful, good faith, non-discriminatory personnel action. Defendants agreed to provide any written investigative report that led up to the decision to terminate his employment.

8. This request again seeks documentation of company policies or procedures regarding time off for personal emergencies. To the extent that the policies or procedures played a part in the determination to terminate applicant, production of such documents could reasonable lead to admissible evidence to demonstrate that the grounds of applicant’s job termination were not as the employer represents or that the action against him w3as discriminatory. Accordingly, defendant should provide any such documentation that exists.

9. Defendant previously agreed to provide applicant’s personnel file, and it was agreed that any separate file maintained concerning applicant that might be considered to contain personnel documents would also been provided.

2. 10. This request is really the same as the last paragraph.
3. 11. This paragraph is totally duplicative of information previously sought and the solutions previously mentioned suffice.
4. 12. Applicant seemed to think that there might be some separate file UPS kept of his correspondence over the years and any replies. Asked if he didn’t keep copies, he said he was really attempting to find out if there was some other "personnel" file by means of this request. The request is too nebulous and not shown to be likely to lead to discovery of admissible evidence.

Applicant felt that this request for information would help establish a pattern of harassing good UPS employees who are trying to address workplace problems, but he said that he had not suffered any discipline of any sort between 1989 and termination of this employment in 1996. I expressed the doubt that any pattern could be established and concluded that the requests for information would not likely lead to admissible evidence. Accordingly, the subpoena for that information is quashed.

DISPOSITION: Matter ordered off calendar and to be assigned to an assigned judge and not to the Law and Motion Judge when the matter next comes before the Board other than for law and motion proceedings.

CHRISTOPHER E. HAMILTON (Signed 10-15-97)

WORKERS’ COMPENSATION JUDGE

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