Reconsideration or Removal? Part 3 of 3

There you sit at your office desk, opening your mail, when you see it – a bulky envelope with an applicant’s attorney’s return address.  Without opening it, you know what it is – the applicant is filing for reconsideration of some minor procedural order that the Workers’ Compensation Judge issued but 19 days ago.

You know it is not a final order and, at most, it should be a removal action.  But now the case that was going along so well has this matter to deal with.  Picking up the phone, you call your workers’ compensation defense attorney, and decide you want to try something new to get rid of this fast.

Does your attorney have some new tactic up his sleeve to help this petition die on the vine?

Here is my idea: in the case of Sergio Corrales v. Avis Rent-A-Car, the applicant’s attorney filed for both reconsideration or, in the alternative, removal of a WCJ’s order setting the underlying cases for trial.  The Workers’ Compensation Appeals Board dismissed the petition for reconsideration as improper, because the order setting the cases for trial was not a final order.  It then denied the petition for removal on other grounds.

How is this relevant?  The WCAB specifically admonished applicant’s attorney that “the filing of a petition for reconsideration to challenge the WCJ’s order setting this case for trial could be viewed as an action or conduct that is frivolous or solely intended to cause delay and subject to sanctions…”

In the case of Antonio Morales v. WCAB (2011) 76 Cal. Comp. Cases 841, the WCJ specifically recommended that sanctions be imposed for filing for recon from an order for a replacement panel, but the WCAB did not address the issue, either as a silent rejection or as an unintentional oversight.

Corrales was filed in June of 2011, and is a slightly more recent opinion than Morales.

Now comes the maneuver:

Upon receipt of the petition for reconsideration, send a letter to applicant’s attorney with a copy of the Corrales panel opinion [please e-mail me if you would like a copy of the panel decision: gregory.grinberg@htklaw.com], and a copy of a panel, en banc, or higher court opinion finding a certain act appropriate for removal but not appropriate for reconsideration.

Don’t threaten – just point out that a petition for reconsideration is not appropriate in this case and it should be withdrawn.

If the applicant’s attorney does not withdraw the petition for removal before you file your answer, seek sanctions.  If this crazy maneuver works, the applicant’s attorney will either withdraw the frivolous and inappropriate petition for reconsideration, or (hopefully) the cost of fighting the petition will be out of applicant’s attorney’s pocket.

Granted, this is by no means an established tactic – but if you’re looking to try a new maneuver, this might just work.  What’s more, there will be close cases, where there is no established precedent for whether the proper course of action is reconsideration or removal.  But, in most cases, this might just be the trick to cut delay and litigation costs.

Below are some good examples of removal and reconsideration cases.

Proper actions for removal:

1. Finding of fact as to which of two QME panels was properly issued. Tsegay Messele v. Pitco Foods, Inc. (2011) 76 Cal. Comp. Cases 956 (en banc).
2. WCJ’s order to take matter off calendar until applicant was re-evaluated by AME.  Gregory Lapold v. WCAB, Lloyds Transmission (2011) 76 Cal. Comp. Cases 1030.
3. Judge’s denied of a petition to have three cases consolidated into one.  PBMS, Inc. v. WCAB (2010) 76 Cal. Comp. Cases 1015.
4. WCJ’s order to the Medical Unit to issue a new panel following a finding of ex-parte communication.  Antonio Morales v. WCAB (2011) 76 Cal. Comp. Cases 841.
5. Judge’s order regarding which of defendant’s representatives could attend applicant’s deposition.  Amador Padilla v. WCAB (2011) 76 Cal. Comp. Cases 191.
6. Judge’s order denying defendant’s petition to disqualify applicant’s attorney. Advantage Workers’ Compensation Insurance Company v. WCAB (2010) 75 Cal. Comp. Cases 1415.
7. Judge’s issuance of an order alleging that Defendant’s attorney and its adjuster were in contempt of court.  All Tune & Lube v. WCAB (2010) 75 Cal. Comp. Cases 503.
8. WCJ’s order for additional discovery following trial to “develop the record.”  Bates v. Valley Vintners Wine Company (2011).
9. An order granting a party motion for change of venue.  French v. Warner Brothers (2011) 13 WCAB Rptr. 13,216.
10. WCJ’s order denying defendant’s petition to dismiss.  Barbara Guthrie v. Weyerhaeuser Company (2004).

Proper actions for reconsideration:

1. An order finding liability for an injury.  Denise Hernandez v. Big Buy Food (2011).
2. An order to take nothing on a Labor Code section 132a claim.  Miller v. County of Alameda (2011) 39 CWCR 208.
3. A finding that defendant is not required to pay for a medical procedure.  Navarro v. Vengroff  Williams Associates (2011).

Reconsideration or Removal? Part 2 of 3

Yesterday we covered the appeal of a final order through the procedure of a Petition for Reconsideration.  Today’s topic is the alternative, a Petition for Removal.

A removal action, much like a recon, must be filed within 20 days of service of the aggrieving order.  [Don’t forget the additional days for mailing!] However, the standard to proceed on removal is very different.

The appealing party must show (1) the WCJ’s order will result in prejudice; (2) the WCJ’s order will result in irreparable harm; and (3) reconsideration after a final order is made does not provide an adequate remedy. (8 CCR § 10843.)

So if an applicant’s attorney or a lien claimant files a petition for removal, there’s really no frustration involved for the defense – either there is a valid point being made, in which case defeating the petition is just part of the job, or there isn’t, in which case the high barrier set by § 10843 should do most of the work.

But if an applicant’s attorney files a petition for reconsideration, or, as appears to be the common practice, a “petition for reconsideration, or, in the alternative, petition for removal,” frustration is warranted.

Now, the case is ground to a halt, as per LC § 5910 and CCR § 10859, and the defendant has to watch the good Panel Qualified Medical Evaluator fill up his appointment book, the best witnesses move away or get forgetful, and medical bills grow and grow like the pile of abandoned food in the back of the office break-room fridge.

When the applicant’s attorney files a petition for reconsideration, alone or with the petition for removal, either because he or she didn’t bother to read the file and do the research, or with the sole purpose of delaying the proceedings, what can the defense do?

Well, the common response is to fight the petitions with an answer or two, and hope the WCAB denies the petitions.

But if you’re brave and would like to take a gamble, I’ve got a “crackpot” maneuver for you to try that I will eagerly reveal in tomorrow’s post.

Reconsideration or Removal? Part 1 of 3

California’s Workers’ Compensation system is one with a lot of gray areas and vague notions.  Rules of evidence and civil procedure apply, but not really.  Regulations govern the proper issuance of evaluator panels, but the Medical Unit does not have to follow them.  Defendants are entitled to due process, but only sometimes.  (For some of the harshest language on this point, I direct you to the case of Fidelity and Casualty Company of New York v. Workers’ Compensation Appeals Board [“If this case is a measure, the board — despite its sheaf of rules of practice and procedure — operates in an essentially structureless environment where the vigilance of the petitioning and responding parties provides the only insurance against the arbitrary and capricious denial of due process.”]).

Well, one truth that we can all agree on, one that is constant and unyielding, is this:  sometimes the Workers’ Compensation Judges get it wrong.  And when they do, it is up to the zealous among us to make sure these errors do not go unanswered – we must appeal!

The appeal takes the form of a Petition for Reconsideration.  An alternative is a Petition for Removal.  The former is from final orders, while the latter is from orders not considered final, but resulting in prejudice and irreparable harm.  (8 Cal. Code Regs. § 10843.)

Removal and Reconsideration are two very different procedures, but their distinction is often lost on attorneys who file both in order to cover their proverbial bases.

A petition for reconsideration is filed to seek the Workers’ Compensation Appeals Board’s intervention from a final order of a WCJ.  (Labor Code § 5900.)  A final order is one which determines any substantive right or liability of those involved in the case.  (Maranian v. Workers’ Comp. Appeals Bd..) Under Labor Code section 5910, the aggrieved party has 20 days from the service of the order to file its petition for one or more of the following reasons:

(a) The WCJ or the appeals board acted without or in excess of its, his or her powers;

(b) The order, decision, or award was procured by fraud;

(c) The evidence does not justify the findings of fact;

(d) Newly discovered information not previously available;

(e) The findings do not support the order, decision, or award.

(Labor Code § 5903)

One of the immediate effects of a petition for reconsideration (as opposed to a petition for removal) is that the filing of it suspends the order of the WCJ for 10 days.  (Labor Code § 5910.)  Furthermore, the WCJ is stripped of all jurisdiction 15 days after filing.  (8 CCR § 10859.)

This means that when a WCJ issues a non-final order, the case should proceed.  But once a petition for reconsideration is filed, under the Labor Code and the Code of Regulations, the order is suspended and the jurisdiction is taken away from the WCJ.

In other words, while an attorney is just “covering his bases,” the case grinds to a halt and a good amount of legal resources go into dealing with his or her petition.

But what about the process for a Petition for Removal?  I’m glad you asked: come back tomorrow morning for Part 2 of 3!

Is 15 Miles Too Long to Drive for an Evaluation?

The panel Qualified Medical Evaluator system certainly has its advantages – less doctor-shopping, less doctor and deposition fees, etc.  On the other hand, it has the ridiculous effect of sticking parties with a list of three (effectively two, once the other side uses its strike) choices in who the panel QME will be.  After all, the physician may not be actually qualified or may have an applicant’s bias (“What do you mean it’s NOT industrial? There is no such thing!”).

Parties will try every trick in the proverbial book to get out from under a bad panel.  The recent case of Sharon Frink v. Shasta-Tehama-Trinity Joint Community College is no exception.  The basic point of this case was that applicant was evaluated by a PQME in Anderson, California.  The PQME then moved his office to Redding, California.  The two offices were 15 miles apart.

Naturally this warrants a new panel, because the doctor was obviously “unavailable” under California Code of Regulations section 34(b).  Applicant’s attorney moved for a new panel and the defense filed a petition to compel attendance at the PQME’s new office in Redding.  Reading the plain language of the rule, the workers’ compensation Judge ordered the Medical Director to issue a new panel.  It may be just your beloved cynical blogger’s observations, but it seems that asking a WCJ to apply the plain language of a rule or statute is usually a fruitless effort when done by defendants.

Defendant promptly petitioned the Workers’ Compensation Appeals Board for removal.  Dear readers, if you are wondering why this issue was not the subject of a petition for reconsideration instead, might I suggest you glance at the “Reconsideration or Removal?” posts.  In granting the defendant’s petition for removal, the WCAB held that “the Legislature intended to prevent the AME/QME selection process from restarting where there is a reasonable possibility that the injured worker return to the same medical evaluator.”  This policy “both minimizes medical-legal costs and thwarts attempts to doctor-shop.”

In other words, a 15-mile-drive is not an unreasonable burden for the applicant to undertake.

Hearing Representative Misses Again

Things don’t seem to be going too well for a certain hearing representative struggling to retain the privilege of appearing before the Workers’ Compensation Appeals Board.  A recent en banc opinion dismissed his petition for reconsideration.

Previously, this blog noted the gears starting to turn in this matter, when the WCAB gave notice that it “may suspend or remove” his privileges.  Having no-doubt consulted the “kitchen sink” book of arguments, this hearing representative contended, among other notions, that the whole WCAB is unconstitutional.

The WCAB reminded the hearing representative that reconsideration is only an appropriate remedy when there is a final order (as my readers are well aware) which there had not been.  The WCAB also noted that the petition was not timely, having been filed more than 25 days after the September notice of hearing.  Filing untimely petitions is one of the allegations against this hearing representative.

Is something happening in California?  Governor Brown vetoes anti-employer legislation, the Court of Appeal allows a malicious prosecution case to go forward against an applicant’s attorney, the Supreme Court lands right on COLA… is this the start of a new trend?

Your beloved blogger is too much of a cynic to think so… and time may yet rain on this proverbial employer’s parade.  But one thing appears certain: California’s businesses, though abused and slandered up and down the state, still have some fighting spirit in them and, at least for now, that spirit is shining through.