Home > Uncategorized > Raising 132a in Application Does Not Trigger Discovery Timeline

Raising 132a in Application Does Not Trigger Discovery Timeline

Boilerplate pleadings should be discouraged in workers’ compensation.  They might save a little time for the party filing them, but they end up wasting the time of opposing counsel and the Board.  If Labor Code section 132a is an issue in this case – go ahead and raise it.  If it isn’t, refrain.  But if you’re going to raise 132a, then run with it – don’t stamp 132a on every single application.

For example, a worker might return to his job after an injury, get promoted, get a raise, and be held up as an example to his co-workers as a model employee – one who meets misfortune head on and works hard to get past it.  Some applicant attorneys would include 132a in their application.  Why?  Because it’s easier to kitchen-sink a form rather than do a full investigation of a case at intake.

Which brings us to the case of Edwin Mendoza v. J & S Auto Hand Wash.  Applicant worked for Auto Hand Wash and sustained injury to multiple parts of his body over a six-year period ending in May of 2011.  Applicant filed a claim in August of 2011, and (wouldn’t you know it) raised the issue of 132a in his application.  The actual petition for increased benefits was not filed until January of 2012.  A Declaration of Readiness to Proceed was filed by applicant ten days later on all issues except the 132a claim.

Should the 132a claim have been set for trial on the same date as the case-in-chief?  Applicant’s position was that it should not and that discovery had not yet been completed.  But, at the time of the Mandatory Settlement Conference, applicant had almost seven months since raising the issue in his application, and had not begun to conduct discovery on the matter.  The workers’ compensation Judge set all issues for trial, reasoning that applicant has had plenty of time to conduct discovery and has chosen not to.  The clock began ticking when the issue was raised on the application, not when the petition was filed.

Unfortunately, the Workers’ Compensation Appeals Board sided with applicant’s position, granting his petition for removal.  The Board responded to applicant’s claim that he “will be severely prejudiced if a final decision is made on his claim if he has not had the opportunity to conduct discovery.”   With this sentiment, your humble blogger agrees…

If applicant had not had the opportunity to conduct discovery, setting the matter for trial would have been prejudicial.  However, applicant had ample opportunity from August 2011 to March of 2012 to depose the employer or subpoena records.

In the WCJs report and recommendation, it is noted that “[t]he Petition for Removal gives no explanation for the applicant’s not having conducted discovery on the 132a claim.”

I understand the concern of giving applicant a harsh result, but shouldn’t we be trying to move things along?  After all, the allegations forming the basis of the 132a claim were not a surprise – the issue was raised in the application.

On the bright side, an EAMS search reflects that the case has settled by compromise and release.  So perhaps there was a happy ending after all?

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