WCJs Do NOT Have to Moonlight as Lawyers
Are you unhappy with the workers’ compensation Judge assigned to your case? Want to try to get a different one? What argument could you try that has never been tried before? What maneuver worthy of a John Grisham novel or an episode of Law and Order: Workers’ Comp. (some day, dear readers, some day) could be used to change the tide and swing the case back in your favor?
Why not cite Labor Code section 123.5 and get rid of any workers’ compensation Judge that seems to be inclined against your case? Wait, you mean you’re not familiar with section 123.5? But it’s the keystone to workers’ compensation!
In the case of Olga Garau v. State of California, Department of Industrial Relations, applicant argued that her case could not be assigned to a WCJ because section 123.5 requires all WCJs to be active members of the California bar. (It doesn’t; candidates for judgeship have to be members of the bar and must maintain membership with the State Bar during their tenure but there is no requirement that WCJs moonlight as attorneys to keep their robes.)
The Workers’ Compensation Appeals Board rejected applicant’s argument, as even inactive members are still members of the Bar. The Court of Appeal wasn’t impressed with this “rabbit” out of applicant’s legal hat either, denying applicant’s petition for a writ of review.
So relax, dear readers, the crazy world of workers’ compensation, for lawyers, attorneys, lien claimants, and employers, remains just as crazy as before but no crazier.
Now dear readers, remember, your humble blogger is an attorney who loves crackpot ideas and tactics. Crazy strategies are not far from this lawyer’s mind and new tactics are the reason he opens his heart and his brief case (yes, people still have brief cases) and goes to work hacking at monotony.
But really? Disqualifying a WCJ this way? Are there any WCJs that are “active members” of the bar in the sense that they maintain a legal practice? Even if applicant’s theory had worked, when she finally got to a WCJ she could be happy with, wouldn’t the defense attorney use the same tactic and keep her case from ever being concluded?