Home > Venue > Is a Venue Fight Worth It? Part 2 of 2

Is a Venue Fight Worth It? Part 2 of 2

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.

Categories: Venue
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