A common tactic used by often less-than-ethical applicants’ attorneys is to list the adjuster as a witness for each and every possible trial.  “What? You don’t want to buy my client a vacation home? Well, that’s bad faith! Bring your adjuster to testify as to why you guys are such jerks, why the sky is blue, and why my mommy never bought me that shiny red fire truck I always wanted.”

And don’t kid yourself – whatever nonsense they state at the mandatory settlement conference, they know exactly what they’re doing.  They know that the adjuster’s testimony will have no bearing on the case – they also know that adjusters are always swamped and have deadlines to meet, and that a day or two out of the office, depending how far away the office is, can be brutal for deadlines.  It’s about scorched Earth as it gets.

Recently, the WCAB had occasion to review this practice in the matter of Reis v. Silvas Oil Company, Inc.

At the Mandatory Settlement Conference, the WCJ granted applicant’s request to have the adjuster appear personally at an expedited hearing to be held in two weeks.  The issue at hand was a Utilization Review determination non-certifying a request for carpal tunnel surgery.

Defendant filed a petition for reconsideration, or, in the alternative, removal.  The claims adjuster did not appear at the expedited hearing, and while the matter was pending before the WCAB, the expedited hearing was held on the issue of authorization of carpal tunnel syndrome.

Now, the WCAB did something rather interesting here: in an opinion, filed July 1, 2014, it dismissed the petition for reconsideration, and granted the petition for removal.  Granting the petition for removal, the WCAB held that “substantial prejudice or irreparable harm will result if removal is not granted.”

The WCAB further noted that the expedited hearing was held despite Rule 10859 transfer of jurisdiction to the WCAB 15 days after the filing of a petition for reconsideration. Therefore, the WCJ’s decision was ordered vacated, with instructions to reset the matter for an expedited hearing, absent consent of the parties to submit it on the current record.

The reasoning here notes that there is nothing in the adjuster knowledge that would justify a trip from the insurance company’s office in Portland, Oregon, to Fresno, to testify regarding a utilization review determination.

But here’s the kicker – the WCAB is saying this matter is not appropriate for reconsideration, but had the defendant filed ONLY a petition for removal and not reconsideration, the WCJ would have continued to have jurisdiction over the matter, and the defendant would have been violating the WCJ’s order by failing to produce the adjuster-witness.

Play it out with me, dear readers: the defendant files for removal, the WCJ retains jurisdiction, the expedited hearing is held two weeks later, and the adjuster either has to appear, thereby suffering the very “substantial prejudice or irreparable harm” that the WCAB recognized in its opinion, or violate the WCJ’s Order.

To a large extent, it is only by filing for reconsideration and invoking the power of 10859 that the defense can avoid this tactic by applicants.

Although there has been some talk about sanctioning practitioners who improperly petition the WCAB for reconsideration when removal is the appropriate remedy, perhaps the WCAB is inclined to refrain from sanctions or reprimand when a petition for removal will prove no remedy because of the time-sensitive nature.