WCDefenseCA

Happy Monday, dear readers!

I trust all is well and you are refreshed and eager to start a new week.  Well, at least half a week, since Thanksgiving approaches.  On Thursday, we can all be forward-thinking and noble, with gratitude in our hearts for all that we are lucky enough to have, and the company of our family and friends around a table laden with delicious food. 

Certainly, no one would ever think of spoiling such an atmosphere by bringing up recent events that might spoil the harmony and bring on discord, right?  We should all practice saying the following line so that it’s ready by the time we sit down for Thanksgiving dinner: “I know we can’t agree on this, but can we agree that it’s good to be together for a meal after such a rough year?”  If that’s not likely to work, then perhaps a change of venue for dinner is appropriate.

Speaking of changing venue (see what I did there?), have you seen the very recent panel decision in the case of Shuey v. City of Redlands Police Department?  Well, an application was filed in February of this year designating Marina del Rey as the venue.  Defendant mailed an objection about three weeks later, but the EAMS system does not show a change of venue until August!

Defendant presented evidence from the U.S. Post Office that the objection to venue under Labor Code section 5501.5 was delivered within 30 days of service of the notice of the application.  The WCJ denied the petition and recommended that removal be denied on the basis that the petition was untimely.

The WCAB granted removal and sent the matter back down for the trial level to consider the evidence of the USPS delivery proof.  However, the matter would be heard further at the same venue which defendant was seeking to move out of… at least for now.  In any case, I’m sure both the parties and the WCJ will consult 8 CCR 10615(b) which reflects that a “document is deemed filed when received…”.

Your humble blogger was certainly around when EAMS was just coming online, and remembers well the grumbling and complaints about the system.  Well, it’s been over a decade since then and EAMS is still here and I think we’ve all gotten used to it.  More than that, and as a credit to Kevin Star who oversaw its implementation, EAMS allows us to not only e-file documents, but receive a time-stamp of receipt by the WCAB. 

If you are not currently an e-file, your humble blogger cannot urge you enough to become one, if for no other reason than to avoid such a situation. 

In the meantime, this case serves as a friendly reminder for all of us – if the venue selected is not (1) the county where the applicant resides on the date of filing, or (2) the county where the alleged injury occurred, defendant has 30 days from receipt “of the information request form” to object to venue, and have venue transferred to option (1) or (2).

Practicing in Northern California, I can report that we regularly receive applications for injuries sustained in Northern California by employees living in Northern California, but with venue selected for Southern California.  This puts defendants at a significant and, dare I say it… unfair disadvantage and it is probably a good practice to have an objection letter ready to knock these out as they come in.

Straight on till Wednesday, dear readers!

Hello, my beloved readers!  As you sail off into your weekend, full of revelry and escape, I hope you will allow me to send you off with a thought.

As some of my first few readers will recall, the issue of venue has been touched upon a time or two by this blog.  Today, I want to tell you about my friend Jack.

Jack is a defense attorney, and comes from a long line of defense attorneys, particularly in workers’ compensation.  His cousin, Jill and he both do workers’ comp defense, one in southern California, the other in Northern, for the law firm of Whey, Cheatum, and Howe.

I was having a drink with Jack the other day, and he let me in on a little secret of his practice.

He says he ALWAYS tells his clients that they should object to venue based on the applicant’s attorney’s principal place of business.

You will recall, dear readers, that Labor Code section 5501.5 provides that an applicant must be filed in the county nearest to (1) the employee’s residence at the time of filing; (2) where the injury occurred; or (3) the county where the employee’s attorney maintains his or her principal place of business.

However, subsection (c) of the same provides that if venue is chosen based on the attorney’s place of business, then the employer can object within thirty days of receiving the notice of application.  In fact, the WCAB in Koine v. Fontana USD (1998 panel decision) held that there is no discretion on the part of the presiding Judge when faced with a timely venue objection under 5501.5(c).  If it’s within 30 days, with or without a showing a good cause, venue must be transferred to the nearest board to an applicant’s residence or injury location.

So, as Jack finished off his fourth Old Fashioned, he told me his family of defense attorneys routinely recommended to their clients to automatically object to venue based on the attorney’s address.

His reasoning was as follows:  odds are, the applicant lives close to where he or she got hurt (not always, but most times).  So if the attorney is in the same county as where the injury occurred or where the worker lives, venue would be selected based on one of those and no objection would be possible.

If, however, the injured worker resides somewhere in northern California, and the applicants’ attorney is one of those completely ethical ones from southern California (you know the ones, and, no, I won’t name them here), you’ve just severed the cord between the attorney and the client.

The southern California attorney is going to be on tilt trying to handle a northern California venue, and will have to rely on contract appearance attorneys for every hearing.  Soon enough, the profit margins will disappear… possibly leading the same unethical nature that allows this far-off attorney to hire steerers, runners, and cappers to bring him clients, to abandon his client as well…

Once this lecturer was completed, Jack cackled madly and ordered another drink, and I vowed to myself never to join him for happy hour again (I did not seek Jack genuinely “happy” even once during that hour, but that’s par for the course with a workers’ compensation defense attorney).  But it did get me thinking – should the defense always object to AA’s choice of venue?  Should there be a boilerplate objection the intake person at the adjusting agency should have?

After all, the county where in the applicant lives or where the injury occurred is going to be the most convenient for defense witnesses.  Additionally, the go-to attorney is probably closer to there than the applicant’s attorney’s nearest DA.

Additionally, why should the applicant be inconvenienced with unnecessary travel?

What do you think dear readers?  Is Jack crazy for always objecting to venue, or is your humble blogger crazy for having some doubts and reservations?

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.

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.

In California Workers’ Compensation, what constitutes good cause to grant applicant’s change of venue motion?  This is a question that was touched upon in the recent panel decision French v. Warner Brothers (2011) 13 WCAB Rptr. 13,216.  However, the answer one can walk away with is not what is, but rather what is not, good cause.

The skinny:  The convenience of applicant’s attorney is not sufficient good cause to change the venue of a case.

Here are the essential facts:  Applicant filed an application for adjudication of claim, and later an amended application, and in both cases consented to venue at Marina del Rey.  Applicant then switched his attorney to one with an office in Long Beach, and moved to South Carolina.  His attorney filed a motion to change the venue to Long Beach.

Defendant objected, asserting that the place of injury and the place of business for its witnesses were both in Burbank.  As you can imagine, the Workers’ Compensation Judge granted applicant’s motion.  (Somehow, the convenience of defendant’s witnesses, or even defendant’s own attorneys, did not seem to matter to the WCJ).

After the matter was set for a Mandatory Settlement Conference, defendant filed a petition for reconsideration, arguing that no order changing venue had ever been received and that there are no valid grounds to change the venue.

As a side-note, because defendant’s grievance was an interim order, the order changing venue, the proper course of action was a petition for a removal, not a petition for reconsideration.

The Workers’ Compensation Appeals Board, denied the petition for reconsideration, granted the petition for removal, and rescinded the order changing venue.

In other words, the convenience of a new applicant’s attorney is not proper grounds for changing venue.

The WCAB also noted that the WCJ did not make any findings as to the good cause for the change of venue, and that the WCJ erroneously placed the burden of showing good cause not to change the venue on defendant.

Happy Monday dear readers!

Your humble blogger is still around – never fear!

Now, please allow me to ask you a question: what issue in California’s workers’ compensation system keeps adjusters, attorneys, and risk managers up at night?  What is the number one biggest concern shared by the defense community?

Well, if you guessed 5710 fees, I would be really surprised.  They don’t even rank in the top 10 probably.  But, since the humble blogger is nothing if not a merchant of disappointment, let’s do a blog post on 5710 fees anyway!

For those unfamiliar with Labor Code section 5710 governs depositions in the workers’ compensation system (with due deference to the Code of Civil Procedure).  But, if you wake up any applicant attorney in the middle of the night with a violent shake his or her first response will be “protect 5710(b)!”  Why? Because Labor Code section 5710(b)(4) provides for a “reasonable” allowance for attorney fees for representing the deponent in a deposition.

Just as a fun aside, this section, last amended in 2016, reflects “[t]he administrative director shall, on or before July 1, 2018, determine the range of reasonable fees to be paid.”  There does not appear to be a fee schedule set by the administrative director as yet.  Instead, common practice is for the Judges in each WCAB venue to adopt practices of reasonable fees.

Mind you, dear readers, the typical rates for defense attorneys ranges from $170 to $210 per hour, depending on the terms and circumstances.  However, the range for 5710 fees for applicant attorneys as set by the various WCAB venues typically range from $250 to $450 per hour depending on experience of the applicant attorney.

It’s odd really – you could have a defense attorney billing at $195 per hour with 20 years of experience, but if that attorney represents a family member as an applicant attorney, he would be awarded $450 per hour.  The market and the WCAB are clearly not in sync.

Anywho, I want to bring to your attention an interesting case your humble blogger recently had occasion to review – Cowens v. ABC Unified School District, a 2022 panel decision.  Therein, Applicant was deposed by defense counsel, and at that deposition was represented by an applicant attorney with 14 years of experience and who was not a certified specialist.  The firm submitted a bill for $450 per hour, plus $50 for a half hour of “staff time.” 

Defendant objected to the rate for the attorney, agreeing to pay $400 per hour, and objected to the “staff time” out of hand.

There are some other issues in the panel decision as well, but the key one your humble blogger would like to address is that the WCJ found a reasonable rate for the applicant attorney involved was $400 per hour.  If the attorney involved had 14 years of experience at the time of the deposition, and the WCJ awarded $400 per hour… doesn’t this panel decision set at least some authority for a ceiling of $400 per hour for 5710 fees?

We see this dispute come up often and we have the glaring difference between what the “free market” pays to defense attorneys and the WCAB awards to applicant attorneys.  The difference does not turn on years of experience or certified specialist status.  But, without formal guidance from the administrative director as contemplated by Labor Code section 5710, does this panel opinion signal that the WCAB finds up to $400 per hour reasonable?

If so, shouldn’t the Cowens panel decision, which affirmed the WCJ’s opinion and rate, be used as the basis for an objection to any 5710 fee demand in excess of $400 per hour?

What are your experiences, dear readers?  Let your humble blogger know!

Alrighty dear readers – your humble blogger has a question for you.

What, pray tell, are your plans for right after thanksgiving.  Do you plan on sharpening your pitchforks?  Are you going to be re-binding and re-oiling your torches?  Do you plan to grumble vague angry sounds as you coalesce into an unruly mob not unlike the following?

Well, so long as you promise that the answer to all of these is an honest “no” I can report to you that the Department of Workers’ Compensation is holding an in person hearing on December 6, 2022 at 10:00 a.m.

As you can see in this announcement all stakeholders, “including insurers, attorneys, employers, injured workers and health care providers” are invited to share their thoughts on how to improve all aspects of the workers’ compensation system.

Your humble blogger’s first suggestion?  Stop making in-person the default.  Travel in urban areas has become extremely tolling on the time budget when traveling by car, and exceedingly dangerous when traveling by public transit.  Remote hearings, depositions, trials, and town halls are well within the scope of feasibility and would be a good start to providing accessibility to the community.  Your humble blogger’s office is in the Peninsula just south of San Francisco, but there are countless stake holders all over the state for whom Oakland is not realistically accessible.

What are your suggestions for improving the workers’ compensation system, dear readers?

Mind you, the DWC is not going to be able to implement any rule or regulation contrary to the labor code, so if your suggestion is to ban cumulative traumas or provide “pain and suffering” damages in workers’ comp, you’re probably barking up the wrong proverbial tree, as it were.

Your humble blogger would like to see a refresh on all forms: minutes of hearing, order approving C&R, pre-trial conference statement, stipulations, C&R, etc.

Your humble blogger would also like the walkthroughs to move back to remote appearance, and the trials to be set to default remote hearings absent good cause to have the trial in person.

As a defense attorney who is referred walkthroughs of settlement paperwork all over the state, it would be nice to have uniform rules.  For example, some venues put a cap on how many walkthroughs will be heard on a particular morning – your humble blogger can find no authority for such a limitation in the labor code of the rules and regulations.  Others want a waiver of the right to QME in writing, while some are satisfied with a notice of the right to a QME.

Another improvement your humble blogger would like to see is more stringent enforcement of the rules requiring parties to meet and confer BEFORE a hearing.  There is already such a requirement prior to filing a DOR, and there is pandemic-era rule requiring such efforts before an MSC.  It is rare enough that your humble blogger sees these requirements enforced and would like to see more of it.

All these suggestions, though solid gold if you ask the author to evaluate them, will fall on deaf ears unless your humble blogger braves the traffic, the violent crime, and the car break-ins to deliver them in a five minute burst of oratory. What do you say dear readers – do you plan on attending and making your voices heard?  Your humble blogger’s bow tie is shimmering in anticipation.

Have a great weekend!

Happy Monday, dear readers!  Your humble blogger hopes the October winds are kind and forgiving in how they howl across California.  Those winds bring Halloween closer and closer, along with trick-or-treaters and scary movies.  Dentists rejoice as with every “trick-or-treat” a new patient is created.

But Halloween isn’t the only thing on the wind – as always, the times they are a-changin’.  Governor Newsome has announced that he intends to lift the COVID state of emergency in February of 2023.  This shouldn’t feel like change – it should be reverting to some semblance of normal.  Of course, how do you go back to normal after all the patent insanity we saw since March of 2020?

But, in the more practical sense, we can expect to see some changes procedurally and legally in the handling of claims.

For example, remember 8 CCR Section 46.3?  This extended the time for the initial appointment by a QME from 60 days to 90 and allowed for telehealth evaluation.  Well, subsection (a) of 46.3 states that this is only “during the period that this emergency regulation is in effect” and this will continue to be in effect until January 16, 2023.  Will we still see machinations to make section 46.3 permanent when there is no longer a COVID emergency?

What about hearings at the WCAB?  Think of all those billable hours defendants didn’t have to pay in travel time because status conferences and MSCs were done via telephone.  Will we transition back to in-person hearings for everything now?  The “emergency” that prompted this shift is about to be declared over, after all.

Now how about depositions?  As a defense attorney for some thirteen years now (just long enough to receive my California Bar Mitzvah – get it… Bar Mitzvah, but California Bar… tip your waitress folks!) your humble blogger isn’t the first to accurately compare the deposition of an injured worker, especially in the Bay Area, to herding cats.  If the stars align, and proper sacrifices have been given unto the appropriate deities, applicant, applicant’s counsel, the court reporter, and the interpreter will all appear on time at the right place.  Often enough, one of these professionals would not attend, if not the deponent him or herself!

With remote depositions, this if fixable – a phone call can find another interpreter or another court reporter (or, if need be, another defense attorney to pitch hit at the last moment).  And, if applicant really does flake, the cost is some vendor fees that can be demanded as costs.  The defense attorney has not invested Bay Area travel times in the aborted deposition.

Well, fortunately, SB 1146, signed by the Governor in September of 2020, has made electronic service mandatory and remote deposition available on a permanent basis, regardless of the California state of emergency.

Your humble blogger hopes that remote appearances will remain, at the very least for status conferences and mandatory settlement conferences.  The time saved not pointlessly sitting in a car, and the calendar shortened by appearing at multiple venues in a single day is just gold.  There is an obligation, of course, to provide speedy justice.

Anywho, dear readers, it’s time to brace ourselves for a new shift.  It’s not entirely clear how much of the “emergency” way of doing things will remain and how much will go back to “normal”, but come February, we should all be nimble, alert, and, much like a 6-year-old at a urinal: on our toes.

As always, your humble blogger will be here, at your service, to make lame puns and sarcastic remarks about or unfortunately worsening situation. 

Happy Wednesday, dear readers!

So, as your humble blogger mentioned in his last post, I had the privilege of being invited to be a panelist at the California Applicants’ Attorneys Association conference in Carlsbad, California.  The venue was beautiful, the sessions very informative, and, surprisingly, the pitchforks very rare.

Now, obviously, your humble blogger can count on the fingers of one Chernobyl hand how many times he agreed with the presenters (it’s six, in case you are wondering), but hearing the theories and proposed tactics from the other side was informative and will no doubt be useful in your humble blogger’s never-ending quest to see every benefit denied.

If you have the opportunity to attend next year, even as a member of the defense community, it may well be worth your while to do so, as the seminars provided advance warning of some of the claims we can expect to see in the near future.

Thanks again to my colleagues on the other side for allowing me to participate!

Straight on till Friday, dear readers…

Happy Monday dear readers!

The question that is asked over and over by every Californian, and, of course, every workers’ compensation practitioner, is if we are going back to “normal” and if so, then when?  For well over a year now, every hearing has been either over the phone or via LifeSize, and almost every deposition has been over ZOOM or its equivalent.

With vaccinations approaching “herd immunity” in the California, one would have thought that we would be on the road to return to the grand halls of the WCAB, plying our scholarly trade in suits and ties rather than shorts and flip-flops.  But, with the Delta variant, perhaps that is not to be.  Further, after doing this for over a year, attorneys, judges, and clients have all seen the benefit of a relatively remote system.

For example, defense attorneys no longer have to bill their clients for travel time since the travel from bedroom to kitchen to living room is often waived as a professional courtesy, given how generous defense attorneys are.  Further, applicant attorneys never got to bill for travel time to the WCAB, but they can now represent their clients in more than one venue each morning, and use that travel time to prepare their cases and counsel their clients.

The Judges too, I imagine, are benefiting from not having to brave the traffic to and from work, and can spend more of their precious hours adjudicating panel disputes and UR litigation over $27.35 tissue boxes.

The Department of Industrial Relations has signaled some inclination to reopen, given that as of today, parts of the WCAB venues will reopen, including the front counters to answer questions and receive in-person filing.  This is, of course, primarily geared at providing more access to the WCAB for unrepresented injured workers. 

For now at least, all hearings and trials continue to be conducted over the phone and LifeSize, but your humble blogger is throwing his weight into the camp of wanting things to remain as they are.