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Kelly Snow filed an Application for Adjudication of Claim against her employer, Health Net, alleging that she sustained an industrial injury to her upper extremities, wrist, shoulders and back. She later filed an amended Application, alleging additional injury to her psyche. She apparently disclosed in her deposition that she had been treated by Ms. Bradley, a Licensed Clinical Social Worker in the past.

Defendant attempted to obtain the records of Ms.Bradley and to depose her, contending that these records are relevant to causation of the alleged psychiatric injury and apportionment of permanent disability caused by that injury. The workers’ compensation administrative law judge (WCJ) denied applicant’s Petition to Quash Subpoena Duces Tecum, denied applicant’s Petition to Quash the Deposition of J. Bradley, LCSW; and ordered applicant to sign a release for the records of J. Bradley, LCSW and ordered the deposition to go forward. Applicant filed a timely, verified Petition for Removal, requesting that the Appeals Board rescind the Orders. Removal was granted in the panel decision of Kelly Snow v Health Net.

Applicant contends in her Petition that both she and Ms. Bradley may assert and have asserted the psychotherapist-patient privilege and refused to disclose confidential communications between them; and that because Ms. Bradley is neither a physician nor a psychologist, pursuant to Labor Code section 3209.3(a) and (b), her records cannot be reviewed by an evaluating qualified medical evaluator (QME), pursuant to Administrative Director Rule 35(a)(l) and (2) (Cal. Code Regs., tit. 8, § 35(a)(l) and (2)) and therefore are not discoverable.

The WCAB concluded that as to whether the records of Ms. Bradley can be provided to the QME for review, Rule 35(a)(5) provides that “[n]on-medical records … which are relevant to determination of medical issue(s) in dispute” may be provided to a QME. Even though Ms. Bradley is not a physician pursuant to section 3209.3( a) and (b ), her records and her testimony are “non-medical records” and may be sent to the QME.

As to the psychotherapist-patient privilege, as a licensed clinical social worker, Ms. Bradley is a “psychotherapist” pursuant to Evidence Code section 1010(c). Applicant is the “holder of the privilege” pursuant to Evidence Code section 1013(a). Both she and Ms. Bradley may claim the privilege to refuse to disclose confidential communications between them, pursuant to Evidence Code section 1014(a) and (c). However, Evidence Code section 1016 provides: “There is no privilege under this article as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by: (a) The patient.”

However, the waiver contemplated by Evidence Code section 1016 may not be a complete waiver of the privilege but only a limited waiver concomitant with the purposes of the section. As the Supreme Court stated In re Lifschutz (1970) 2 Ca1.3d 415 that the patient is not obligated to sacrifice all privacy to seek redress for a specific mental or emotional injury; the scope of the inquiry permitted depends upon the nature of the injuries which the patient-litigant himself has brought before the court.

The WCAB noted that in this case, Ms. Bradley wrote a letter to the process server of the SOT for her records, stating: “The records that I have regarding the above named precede the accident of March 14, 2011 by a number of years. As these records do not relate to this event or injuries, I do not feel comfortable in releasing her private information.” Therefore, there is an issue as to whether the records of Ms. Bradley relate to the mental conditions that applicant has disclosed in this case or whether they relate to “other aspects of [her] personality,” in which case disclosure may not be compellable. For this reason, the WCJ in his Report and Recommendation recommended that the WCAB grant applicant’s petition so that there can be further consideration of whether some or all of Ms. Bradley’s records may still be privileged, despite applicant’s allegation of injury to psyche in her injury of March 11, 2011.

Thus the WCAB agreed with the Recommendation of the WCJ and granted removal, rescinded the Orders dated June 19, 2013, and returned the matter to the trial level for further proceedings.