WCDefenseCA

The Workers’ Compensation Appeals Board recently affirmed a workers’ compensation Judge’s award of sanctions and costs against an attorney representing lien claimants.  The WCJ had found a pattern of failing to appear or appearing late.

The case is that of Ramona Anaya v. Port Hueneme Unified School District.  The attorney for the lien claimant (recall, dear readers, that your humble blogger does not like to name names) apparently caused six of the eighteen delays in the case, providing various excuses of illness, vacation time, and other excuses.

Under Labor Code section 5813 and Code of Regulations section 10561(b)(1), the WCJ found that the long string of delays, which resulted in a lien trial finally happening on December 16, 2009 after being originally set for November 15, 2007.  That’s right, the delays added up and the lien trial had to wait two years from its original date.

Just so we’re not losing sight of the difficulties experienced by the self-insured employer in this case, the date of injury is January 25, 2002.  This means that for more than 10 years, this file has remained open and required the attention of an adjuster and an attorney to keep it current as it consumed hours, sunlight, desk space and, to some small extent, the good will and sunny disposition of the defense professionals connected with it.  As new files came in, this one lingered and added to the pile.  Two of those years can be attributed to this lien issue.

The WCJ found that, although the attorney appeared to have an excuse for every delay, section 10561 allowed for the imposition of sanctions upon the finding of a pattern of delay and non-appearance, even if justified.

The attorney fired back that the other 12 delays were not caused by her, and that the WCJs had all conspired to punish her and her clients in all of her cases.  The WCAB didn’t really address the conspiracy allegation, simply noting that it was made in the attorney’s briefs.

From what your humble blogger has observed, there is not so much a conspiracy against lien claimants as a widespread frustration with the effect they are consciously and collectively having on the workers’ compensation system.  Even applicants’ attorneys must recognize that money wasted on these liens is money out of their clients’ respective recoveries, and perhaps the age-old tactic of using lien claimants to drive up the costs to the defense of not settling has started to backfire.  After all, even the most useful scorpion eventually stings its master.

As to delays allegedly caused by the defense, the WCAB simply noted that “it is [not] relevant whether defendant caused any of the other continuances because defendant’s behavior is not at issue.”

The sanctions held up, as did the defense’s attorney costs.

Now, before my dear readers shake their heads at the calloused and insensitive writings of their cold-hearted blogger, allow him to say the following in his defense.  Everyone gets sick from time to time, scheduling conflicts arise, and continuances are needed here and there.  They can be frustrating and wasteful, but necessary at times.

But here, we’re looking at two years of delays before a trial finally happened – many of these delays were reported on the date of the hearing when they should have been noticed ahead of time to avoid unnecessary preparation and travel.  Even if these delays were the product of the lien-claimant’s attorney’s bad luck, it seems unreasonable that the defense must continue to suffer the effects of the attorney’s ill fortune.

The defense’s time was wasted.  The WCJ’s time was wasted.  And most of it could have been avoided with proper regard and diligence.