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Irene Yera claims to have incurred industrial injury to her neck, upper extremities, chest, nervous system and other body parts while employed as sales assistant by J.C. Penny.

During the course of investigating the claim, the employer scheduled Yera’s deposition. Yera appeared at the noticed time and location but refused to go forward in the presence of defendant’s store manager, who was designated as the employer’s representative. Defendant then petitioned to compel the deposition to proceed in the store manager’s presence, but the WCJ denied the petition. The defendant petitioned for removal to obtain an order to compel from the WCAB.

In his Report, the WCJ explained that he denied defendant’s motion because he was informed by applicant’s representative at that time that the presence of the store manager “would intimidate applicant.” However, the WCJ further writes that defendant is correct that applicant’s counsel did not seek a protective order prior to the deposition and that no specifics were provided at the conference “regarding applicant’s perception of being intimidated by the manager.” In the absence of such specifics, the WCJ agrees with defendant that it has the right to have the manager present during applicant’s deposition.

The WCAB panel granted the Petition for Removal and rescinded the decision denying defendant’s petition to compel in the case of Irene Yera v J.C. Penny.

The panel noted that there was no evidence from applicant identifying any right to privacy that would or could be affected if the store manager is present during the deposition.To the contrary, the only reason given by applicant’s representative to the WCJ for not proceeding at the deposition was that applicant would feel intimidated by the store manager’s presence. Such a summary assertion of subjective feelings is not sufficient reason to exclude the store manager from the deposition, particularly in light of the fact that applicant is represented by counsel and has remedies available to address any improper behavior that may occur at the deposition.