Happy Monday, dear readers!

Did you know, the study of lore is particularly valuable to those willing to invest the necessary time?  If cornered by a werewolf, a silver weapon is the best defense where a typical bullet is useless.  If, on a dark night, you are assailed by a vampire, a wooden stake (or a delicious garlic steak) will be your best defense.  Even if cornered by a swarm of doctors, just having an apple or two on hand will have them hissing and scurrying off in retreat.

But what is that one device that will put fear into the heart of Nature’s apex predator – the lawyer?  There is only one thing these denizens of the State Bar (easy, friends, that’s a professional association, not where we lawyers meet for drinks) fear, and that’s the malpractice lawsuit!

Malpractice exists to provide a remedy to the victims of attorney incompetence, neglect, malfeasance, or malicious breach of duty.  When lawyers screw up, the malpractice lawsuit is supposed to make their clients whole, or pretty close to it.

So consider the panel decision in Escamilla v. Cacique.  Applicant sustained an admitted injury due to third-party tort.  While receiving workers’ comp benefits, the injured worker retained civil counsel to seek civil damages against the third-party tortfeasor.  Well, the applicant then sued those attorneys for allegedly blowing the filing deadline, and ended up receiving $320k, of which the applicant ultimately recovered almost $180k.

Well, the defendant in the workers’ comp case filed a petition for credit for third-party recovery against future benefits.

To your humble blogger, this makes perfect sense – the malpractice suit, in whole or in part, is to make applicant whole for a breach of duty from the civil attorneys.  The breach of duty caused harm to the extent that it failed to make applicant whole for the tort of the third-party defendant.  So if the malpractice suit makes applicant whole in general, why not let it offset the exposure for the workers’ comp case, as if applicant had recovered the money directly from the tort-feasor?

Well, the WCAB didn’t see it this way.

In the Escamilla decision, both the WCJ and the WCAB essentially found that defendant gets nothing (or, if you want to get a peek into the twisted mind of your humble blogger, the WCJ and the WCAB ruled that applicant gets a double recovery).

In answer to the defendant’s contention that it was entitled to credit, the WCAB noted that even if applicant was going to blow the deadline to file a civil suit, the defendant can always instigate the civil suit itself.  There is no need to wait by the sidelines – defendant can file its own actions and seek its own recovery directly from the third party.

Of interest, the WCAB decision pointed out that applicant and the WCJ on one side, and defendant on the other, rely on competing panel decisions that reached different conclusions, while there is a published Court of Appeal decision available: Soliz v. Spielman, a 1974 decision which specifically denied recovery for an employer from a malpractice suit against the injured worker’s attorneys.

Now, I know this will make me sound like a Russian man who was given wrong directions to the county fair, but: “this is not fair!”

I understand the logic of the decision well enough – the civil attorneys had no duty to the employer.  But I also understand that applicant receiving double recovery: first from the employer and its insurer and then from the civil attorneys for what the applicant might have recovered in the civil suit.

But, as frustrating as this is, let us pull from it a reminder to diligently pursue our third-party rights and not wait for applicants to do so for us.

“As President of California, I will Make Workers’ Compensation Fair!”