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Always Object to Venue Based on AA’s Office

August 1st, 2014 3 comments

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?

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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.

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Proper Grounds for Changing Venue

August 11th, 2011 No comments

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.

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Deported Applicant Allowed to Testify via iPhone

August 23rd, 2017 No comments

Alrighty, dear readers, your humble blogger has a pop quiz for you.

Why do we have live testimony?  Why can’t all witnesses call/Skype/Facetime in to trial or a hearing?

Most of the WCABs venues have some form of wi-fi available, and almost everyone is sporting a smart phone nowadays.

We already saw in the Simmons case that an adjuster was allowed to appear via Skype and in the Alvarez case, an applicant was allowed to testify via Skype at his own trial after being deported to Mexico.

Recently, the WCAB allowed a deported illegal alien applicant to testify at his own trial via a 4-inch iPhone screen.

deported testify

In the case of Vargas v. Becker Construction, a recent panel decision, the WCAB did not disturb the WCJ’s allowing of a deported applicant to testify by iPhone.  Your humble blogger is agreeable to the fact that we should avoid “gotchya” litigation in workers’ compensation matters.  However, if credibility is in question, a WCJ needs to be able to observe applicant testify.  Additionally, the WCJ should be able to have certainty that no one in the room is feeding answers or responses to the witness from behind the iPhone transmitting the testimony.

Practically speaking, this might be addressed by having the injured worker sit in front of floor-to-ceiling mirrors so that the trier of fact can confirm no one else is in the room.  But the small screen of the iPhone presents its own problem – how is one to observe credibility on so small a screen, especially if the rest of the hearing room is to observe it as well?

Personally, if the world finally lost its mind and entrusted your humble blogger with a spot on the bench, I would think a phone is too small a device upon which to observe a witness’s testimony (and determine credibility).

It is not clear what the proper course of action is – do the federal and state constitutions’ guarantees of due process (including the ability to present and cross-examine witnesses) outweigh California’s interest in providing benefits to workers that for one reason or another are not present in the country (or state)?

What do you think, dear readers?  Would defendants be willing to have their adjusters and employer witnesses avoid being dragged in from out-of-state if it meant that an applicant could prosecute his or her case from across the border?  As much as your humble blogger is a fan of technology, somehow testimony over a hand-held iPhone screen doesn’t seem to meet the standard of decorum and substance of an in-person trial.

 

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AB1244 Signed Into Law – Medical Fraud Liens Now Even Weaker

October 7th, 2016 No comments

Happy Friday, dear readers!

Your humble blogger brings you a tiny bit of news from Sacramento.  AB1244 has been signed into law and will take effect on January 1, 2017.

The bill, signed into law by Governor Brown on September 30, 2016, holds that “[t]he administrative director shall promptly suspend … any physician, practitioner, or provider from participating in the workers’ compensation system as a physician, practitioner, or provider if the individual or entity meets any of the following criteria…” which primarily focus on felony or misdemeanor convictions having to do with fraud or abuse of Medi-Cal, Medicare, workers’ comp, or a patient.

Other reasons for suspension include financial crimes, or fraud related to qualifications, functions, or duties of a provider of services.

Basically, when there is a plea or conviction for medical-treatment related fraud, all of  the fraudster’s liens will be consolidated for a special hearing, across all WCAB venues, and be heard at one hearing at a particular venue, where there will be a presumption that all the liens are based on fraud.

So, what are we going to do on the defense side?

When you get a lien, and especially when you get a notice of hearing on a lien, do some research on the lien claimant to determine if there was a conviction for fraud.  Usually these things make the news.  After that, it just becomes an issue of informing the administrative director.  In many cases, the AD will probably be on this already.

Previously, the conviction for fraud would have already dealt a blow to any lien claimant’s credibility.  And, given the defenses already available, would make it even harder for lien claimants to recover.  However, now, it looks like the State of California may absorb some of the administrative costs (in the sense that the money employers already pay to fund the DIR will now be used to help them fight off liens) in getting rid of some lien claimants.

It’s a good thing, dear readers.  Happy Friday!

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On Attorney Fees and Permanent Disability Advances

February 24th, 2016 3 comments

Hello, dear readers!  Just recently, your humble blogger overheard the following conundrum at one of the WCAB venues: while unrepresented, applicant had received 100% of the PD value as advances, and nothing was withheld as an attorney fee.  Applicant subsequently became represented, tried (in vain) to increase the PD rating, and ended up where he began, at which point it was time to settle.

But the applicant attorney wanted something for his efforts, however ultimately futile they proved.  The defendant, in response, said that there was nothing from which to draw an attorney fee, seeing how all the PD had already been advanced.  Furthermore, a C&R was not the ticket either: a lien from EDD which would have been paid as part of any C&R would have wiped out any moneys from which to draw an attorney fee as well.

Naturally, the applicant attorney agreed that he should have thoroughly reviewed the case and the facts before expending any effort – the parties shook hands and went their separate ways.  Just kidding, dear readers – trying to see if you’re awake!

Applicant’s counsel claimed that defendant failed to withhold advances for a (possible) attorney to come on the scene, and so owed the attorney fee in addition to rather than out of, the PD value.

Crazy stuff, no?  What’s a defendant to do?

Well, let’s talk about advances first.  Labor code section 4650(b)(1) provides that “[i]f the injury causes permanent disability, the first payment shall be made within 14 days after the date of last payment of temporary disability, except as provided in paragraph (2).”  Paragraph (2), by contrast, tells us that “[p]rior to an award of permanent disability indemnity, a permanent disability indemnity payment shall not be required if the employer has offered the employee a position that pays at least 85% of the wages and compensation paid tot eh employee at the time of injury or if the employee is employed in a position that pays at least 100 percent of the wages and compensation paid to the employee at the time of injury…”

In other words, defendants (at least now) don’t have to make advances if the injured worker is earning at least 85% of pre-injury wages for the same employer, or at least 100% of pre-injury wages for another employer.

But what if advances are due?  After all, as we know from Berry v. WCAB (1969) defendants are required to make advances unless there is reasonable doubt as to the existence of permanent disability (a requirement that section 4650(b)(2) eases, of course).

On the other hand, defendants are required to withhold an attorney’s fee from advances and benefits paid, and failure to do so might expose a defendant to paying the fee on top of the benefits.

So what is a defendant to do?  On the one hand, there is the Scylla of facing penalty for failing to advance the last 15% (and reserving it as an attorney fee).  On the other hand, there is the Charybdis of advancing all funds, and then having an attorney appear on the scene and demand additional payment for “failing to withhold.”

From your humble blogger’s research, it appears that there is no affirmative obligation to withhold 15% in permanent disability advances for an unrepresented injured worker.  Accordingly, the sounder practice would be to continue all advances to avoid penalty for unreasonably withholding.

Practically speaking, however, shouldn’t applicant attorneys be tasked with performing some sort of triage before accepting a case?  And, furthermore, if an applicant attorney takes a case, and, regardless of the effort, generates exactly $0 in results for his or her client… why should there be any fee at all?

My beloved readers may recall that I made the point, some time ago and resulting in many dirty stares and cancellation of party invitations, that applicant attorneys should not receive a fee when they fail to make gains on a settlement offer made when the applicant was unrepresented.

That’s my thinking on it, dear readers.  What are your thoughts?

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DMV Moves to Prevent Driverless Cars

December 28th, 2015 No comments

Hello, dear readers!

Your humble blogger wishes you a very happy Monday – and it truly is!  The Christmas lights are out, the offices are (almost) all closed for the holidays, and the schools are closed as well, flooding the normally calm lives of parents with their idle children.  But not only the cheerful among us are busy this holiday season.  Just as we take moments to reflect on the wonderful life we have bearing witness to science, technology, and innovation cure all the ills of mankind, the Grinches of the world are busy stealing Christmas and the Gubmn’t of California is moving to stifle advances.

Reportedly, the DMV has proposed regulations that would essentially make self-driving cars illegal in California.

According to this draft, “[a] licensed operator will be required to be present inside the vehicle and be capable of taking control in the event of a technology failure or other emergency.  Driverless vehicles are initially excluded from deployment.”

This is only a draft, and it’s supposed to be for a 3-year period only, but you can imagine what effect this is going to have on investors and manufacturing.  Hopefully not too much so that your humble blogger can spend his driving time on blogging instead.

Hearings are being held on January 28, 2016 in Sacramento and on February 2, 2016 in Los Angeles to address these proposed regulations.

The benefits of self-driving cars are pretty clear: release of labor currently occupied in driving professions, freedom and mobility for those physically unable to drive, fewer accidents, etc., etc., etc.  What self-driving cars mean for the state is less in tax revenue from wages of drivers, fewer traffic tickets, and an evaporating demand for public services like transportation.

Sure enough, the DMV is already lining up make it harder for us to replace a lot of the workings of California with something that actually works.  Let’s hope that this draft is revised before it’s implemented.

Toys - Grinch - Remote Control Car

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AB305 Headed to Guv; California Headed to Insanity

September 16th, 2015 No comments

Greetings, dear readers!

Do you ever sit back, with your feet on your desk, a fine scotch in your glass, and a puzzle dancing in your mind – why can’t we have nice things?  Well, dear reader, THIS IS WHY!

Assembly Bill 305 has passed both the Senate and the Assembly and is now headed for the Governor’s desk.  If signed into law, it would prevent apportionment of permanent disability to pregnancy, menopause, or, in the case of psychiatric injuries, sexual harassment, menopause, or pregnancy.

I’m sure the proponents of this bill see themselves as some sort of champions for the oppressed.  Certainly, it’s not fair that women face some difficulties not visited on men.  Surely, the world would be a better place if no one ever got hurt.  When people do get hurt, the world would be a better place if one’s sex did not exacerbate the burden such injury places on the injured.  Can’t we all think of ways the world could be a better place?

In fact, what we’re going to see is a further increase in the cost of labor in California.  Do you want to see the effect of such policies in the aggregate?  Take a look at data recently released by the IRS for 2012-2013.  California continues to see a dramatic decline in tax-generating population (and tax dollars as well).

What goes with these particular individuals, as they cross state lines? Jobs.  These are the jobs that generate revenue that keeps the government lights on and our absurdly horrible roads in one of California’s two favorite conditions – in need of repair or closed for repair.  California will continue to lose the jobs and services we all enjoy and rely on to other states (or to the abyss).

Or, we can look forward to having many of those jobs replaced by automation: Fast-Food will replace workers with kiosks; warehouses will replace workers with machines; even manufacturing will continue to go automated, as one company in Australia reported replacing 60 welders with 3 robots costing $150,000 each.  These results neither generate income tax revenue for state coffers, nor provide employment for humble bloggers of the workers’ compensation defense variety.

This insanity has to stop.  It is not unusual for California’s legislature to have absolutely no understanding of the difficulties faced by small businesses in keeping the lights on.  It is, however, a bit of a surprise that the same legislators are equally deaf to the difficulty labor is facing in finding work.  Minimum wage can be raised to $1,000 per hour, and PD benefits can be magnified 100 fold, but neither will benefits Californians who cannot find work.

Putting things in proportion, dear readers, I get it – the small increase this particular bill will cause in the cost of workers’ compensation coverage is not to blame for the difficulty that industries employing workers earning less than $100,000 per year are facing in California.  But, as stated before, it is a symptom of a disease, or, rather, a diseased mindset when it comes to how California functions.

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60 Day Limit For QME Appointment ONLY For Initial Evaluation

August 26th, 2015 2 comments

What’s your favorite type of shopping, dear readers?  Do you love to show your hunter’s skills by pushing to the front of Christmas shoppers?  Or perhaps you like reaffirming your ancient gathering skills by shopping for a car – going from dealership to dealership until you’ve gathered just the right amount of savings.

Well, for us in the workers’ compensation world, it’s not practice guides or suit-cases we shop for.  It’s isn’t the best surgeon or the most efficient legal research program.  It’s doctor shopping that we love!

doctorshopping

Every single practitioner trying to keep his QME (or AME) bemoans the practice of doctor shopping.  Every single practitioner trying to bounce a QME (or AME) can recite, by heart, any reason to challenge the QME/AME status and get another bite at the apple.  It’s not personal and it’s not specific to applicants or defendants.

In the case of Lopez v. Hemington Landscape, applicant sought to get a replacement PQME because the QME was unable to schedule a re-evaluation within 60 days of the request.  Regulation 31.5(a)(2) allows for a replacement panel when a QME can’t schedule an initial evaluation within 60 days (or 90 days if the applicant is in agreement), but is rather silent on the question of a re-evaluation.

Lopez contended that section 31.5(a)(2) should apply to initial evaluations and re-evaluations, which, if sustained, would have entitled the parties to seek a replacement panel.  The matter proceeded to trial and the WCJ found that the request for a re-evaluation is not an “initial request” which would normally start the 60/90 day clock to set an appointment (“cannot schedule an examination for the employee within sixty (60) days of the initial request for an appointment…”)

Other than pointing out that panel and discovery disputes are not final orders, and therefore not grounds for reconsideration, but rather removal, the WCAB didn’t provide much guidance on this issue.  Does the phrase “initial request” refer to an initial request for any evaluation, or, rather, does the initial request have to be only for the initial evaluation?

As noted by the WCJ, the applicant’s attorney pointed out that another WCJ in the same venue had recently found the opposite result: 31.5(a)(2) applies to ANY evaluation.

There are valid arguments on both sides of this interpretation, of course.  On the one hand, there’s a strong policy militating against doctor-shopping.  The reasons to bounce a QME and get a new panel should be fairly narrow, no? After all, if a party gets a bad report (“counsel, I’m medically certain that the nail-gun shooting a nail into his head is industrial…”), it need only wait until it hears the PQME is busy, then request an evaluation and get a new panel.

On the other hand, imagine this scenario: the QME doesn’t set a re-evaluation date… EVER…

Seriously – what’s to stop a PQME from declining to see an injured worker for 6 months? A year? Realistically, it’s probably not going to happen, but it seems like the point in these regulations is to help move these cases along.  Remember, dear readers, it’s not like we can just go out and get our own experts – such a system would be crazy and totally unheard of!

If a QME can’t get his report in on time, bounce him and get a QME who can.  If a QME can’t see the injured worker on time, bounce her and get one who can.  What is the distinction between the initial evaluation and the re-evaluation?

At this point, your humble blogger’s spirit has been broken by worker’s compensation to the point that he’s fine with either result.  He’s not looking for justice or even reason –  just guidance as to what the rule is so we don’t have to have more trials on this little point.

What about you, dear readers?  Would you prefer a world full of rainbows where a QME has to set initial and re-evaluation appointments within 60 days?  Or would you prefer a land of unicorns where a QME can set re-evaluation dates at his or her convenience?  Or would you prefer a world much like our own, only with some clear-cut guidance one way or another?

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