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Is a Venue Fight Worth It? Part 2 of 2

December 1st, 2011 No comments

Yesterday, your fearless blogger got on his soapblog and ranted about the reasons why local rules are an evil reality of California Workers’ Compensation practice.  Rather than using this blog to vent my professional frustration upon my poor, unsuspecting readers, this was actually in the context of the greater issue of venue – why it matters, and why it’s worth fighting for.

Now, let’s roll up our sleeves and look at the details of how venue is determined.

Venue is set by statute under Labor Code section 5501.5, at least in terms of where an application can be filed.  Subsection (a) holds that an application may be filed in the county where (1) the injured employee resides at the time of filing; (2) where the injury allegedly occurred, or, in cases of cumulative trauma, where the last alleged injurious exposure occurred; or (3) in the county where the applicant’s attorney maintains his or her principal place of business.

Note that, right out of the gate, the applicant has near total control of venue – by moving, even for a few months in order to establish proper venue, applicant can control the venue.  When my cynical imagination has full run of my waking state, I picture a sinister applicant’s attorney advising the injured worker to move to county X for a few months, file an application, and then move back – guaranteeing a favorable result!

Fortunately, subsection (c) allows the defendant to object, to venue based on the attorney’s place of business alone, and the statute requires venue to be changed to option (1) or (2), the residence or location of injury, so long as the objection is made within 30 days of receipt of the Notice of Application (California Code of Regulations § 10410).

But what if there is no Board office available in the county where applicant resides or was allegedly injured?  For example, if an applicant lives and works in San Mateo, San Mateo County, and sustained her injury there – where is she to file?

Subsection (d) requires the application to be filed in the nearest venue to that county, in this case probably San Jose.

It is important to note that section 5501.5 is not applicable only within the discretion of the Board – the law is mandatory!  (See Domino’s Pizza, insured by State Compensation Insurance Fund v. Workers’ Compensation Appeals Board (Don Kerr).

So applicant has filed an application at the appropriate office, that office now has venue.  (California Code of Regulations § 10408).  And now that there is a proper venue, either party may file a petition to change venue under Labor Code section 5501.6, including for the convenience of witnesses.  Either party has the right to object within 10 days of the petition being made (California Code of Regulations § 10411).  My more steadfast readers will know that, unlike witnesses, the convenience of applicant’s attorney is irrelevant.

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Is a Venue Fight Worth It? Part 1 of 2

November 30th, 2011 1 comment

The venue of a workers’ compensation case might seem like a relatively unimportant issue for someone outside the workers’ compensation industry.  After all, the case-law, labor code and California Code of Regulations are all state-wide in application right?  Sadly, if the Easter Bunny, Santa Claus, and state-wide uniformity of workers’ compensation law were all helping you paint your house, you would be engaged in a solo project.  All three are, of course, figments of the imagination.

If you are not familiar with the sad reality of “local rules,” I am sorry to be the one to burst this proverbial bubble for you.  Each venue has its own rules as to procedure, filing deadlines, etc.  For example, the accepted custom at Fresno is to have all exhibits filed and served twenty days before the trial.  If there are more than twenty days left until trial, the other side does not want them, and neither does the Board.

On the other hand if you appear for a Mandatory Settlement Conference in Oakland without your exhibits (and an EAMS separator sheet for each one), with copies for the applicant, lien claimant, Board, and curious strangers passing by, you’re not going to have a lot of material to work with come trial.

Just about every administrative director, including the recently appointed Rosa Moran, has sworn to stamp out local rules for the various boards. Although the Workers’ Compensation Community is readily giving of its best wishes, its confidence in such a matter is considerably more shy and reserved.

Aside from local rules, issues such as cost of travel, reputation of judges (sadly, some Workers’ Compensation Judges are known to be more receptive to one side than the other), and availability of witnesses all play into the question of whether it is worthwhile for a party to fight for a change in venue.

So, now that you are thoroughly persuaded that venue does matter, come back tomorrow morning for the procedure and law behind it all.

Categories: Uncategorized, Venue Tags: