Barr v. Workers' Compensation Appeals Board

The dispositive issue presented by these consolidated petitions for review is whether the authority of the Workers’ Compensation Appeals Board (WCAB) to award costs for the preparation of a vocational rehabilitation consultant’s report depends on the report’s admissibility as evidence under Labor Code section 5703. The workers’ compensation judge denied applicant Jim Barr’s costs because he found the report was inadmissible. The WCAB affirmed. A different judge, however, determined the expense of a report prepared by the same consultant for applicant Bradley Dorigo was reasonably and necessarily incurred and therefore would be awarded as a cost under section 5811. We conclude the WCAB retains discretion to award costs whether or not the report itself is admissible. Because the WCAB failed to exercise its discretion in Barr’s case by erroneously finding that an inadmissible report precludes an award of costs as a matter of law, we remand the case to the WCAB to exercise its discretion. We affirm the award of costs in Dorigo’s case.

FACTS

Jim Barr had preexisting injuries when, in August 1999, he sustained additional injuries while working for Maita Oldsmobile Body Shop…