Siefkes: Site Advantage: Trials Return to WCAB | Workers Compensation News

By William R. Siefkes

Friday, April 8, 2022 | 0

It’s the day before the trial – a trial you’ve been preparing for and anticipating for months.

William R. Siefkes

You are confident in your position and are well prepared to argue your case before the Workers’ Compensation Appeal Board. You organized your supporting documents and ensured that they were electronically filed in the electronic decision management system.

Your home office is set up with easily accessible exhibits, you’ve made sure your internet connections are good, and you’re ready to log into the Lifesize cloud for tomorrow’s trial testimony.

As you finish your preparation for the evening test, a strange feeling comes over you. Something is wrong. You have confirmed the exact date of the trial according to the Notice of Hearing and double-checked your personal schedule.

It strikes you then: Tomorrow’s trial is an in-person proceeding before WCAB several miles from your home office. Your sense of security and readiness for trial is suddenly shaken as you now have to factor in the long drive to WCAB the next morning and the strain of preparation time that now entails.

Sound familiar? I’m sure we’ve all become accustomed over the past two years to relying on procedures adopted in the wake of the COVID-19 pandemic, resulting in appearances of all types, including expedited trials and hearings that have been conducted from the comfort of your office or even your living room. It seems like decades ago, physical appearance in front of WCAB and trips to your respective board were the norm. Oh, how times have changed.

However, now that COVUD-19 positivity rates are declining, the Workers’ Compensation Division has announced that beginning March 21, 2022, in-person hearings will resume at all DWC district offices. , except Eureka for Trials, Lien Trials, Expedited Hearings and Special Adjudication Unit Trials.

This decision outlined in DWC Publication Number 2022-25 published March 9 refers to the decision to be in line with Governor Gavin Newsom’s “SMARTER” plan for the next phase of the pandemic response.

The DWC’s decision to return to in-person trials again underscores the need to be diligent and aware of all aspects and issues regarding your incoming applications, including the issue of venue, which I must admit had become less a factor, given our reliance on remote procedures.

During the pandemic, it has indeed become more common to note the filing of applications in remote WCAB sites. Many practitioners and large firms have taken on cases where their clients reside and the injuries occurred several miles from where the managing lawyer maintains their principal place of business.

As was common before and after the pandemic, it’s no surprise that claims were filed under section 5501.5(a)(3) of the Labor Code in the county where the office was located. plaintiff’s attorney.

Given pre-pandemic practice and prior assumptions that in-person hearings would be scheduled at councils close to the claimant’s attorney’s place of business, our initial assessment of the claim would include an immediate referral to the place of claim. planned and an initial understanding of where future appearances, including conferences and trials, would eventually take place.

During the pandemic and unsurprisingly, many practitioners had assumed the representation of clients whose physical residence and place of employment were located several miles away, and in some cases, in different parts of the state than the primary location. of the lawyer. work.

It was important to ensure that, for the benefit and convenience of your client’s and employer’s witnesses, as well as the plaintiff, the proceedings would be held in the appropriate place so that all parties involved could participate. It was never a pleasant conversation when you informed your employer’s witnesses that she would be required to travel across the state to participate in the defense.

With the return of in-person trials and the high likelihood that your caseload will now consist of claims filed with various attorneys throughout the state that are several miles from the injured worker’s physical residence, the location of the employer and potential witnesses from the employer and/or the location where the injury occurred, failure to recognize this potential situation could become problematic on the date the issues are to be presented to the WCAB.

So, as the world begins to open up and normalcy returns to our workers’ compensation practices, it’s worth taking a quick refresher course on the requirements of Section 5501.5 of the Labor Code. work and its relevance to your particular situation. Immediate identification of a potential location problem could make a big difference in the final outcome of your case.

It is indeed likely that a majority of the claims filed will have been filed under section 5501.5(a)(3) of the Labor Code with the offices of the injured worker’s attorney. However, in anticipation of the potential need for in-person appearances at some point during the claim, including possible expedited trials and hearings, diligent defense counsel on behalf of the client and for the benefit of the parties involved should keep in Keep in mind the importance of assessing the venue issue in a timely manner so that appropriate objections under Labor Code section 5501.5(c) can be properly considered.

Upon review of the initial case materials — if it does appear that the location of the alleged injuries, the employer’s place of business, the residence of the injured worker, and any potential witnesses at trial would warrant an alternative and more appropriate location for the judgment of the proceedings — an immediate and timely objection must be considered.

Article 5501.5 (c) of the Labor Code clearly offers the employer the possibility within 30 days of receipt of the information request form to oppose the chosen site and clearly indicates that the remedies include the transfer of the location to the county where the injured employee resides or where the injury is believed to have occurred.

While these venue disputes are not new to our workers’ compensation practices, their relevance and control laws must be emphasized once again in these changing times as we return to in-person proceedings.

In summary, as we dust off all of our suits, ties and retrieve our court attire from the depths of our closets in preparation for our return to the WCAB trial, we all need to take the time to reflect on the benefit of the venue to our back inside. person trials.

Rob Siefkes is a partner and general counsel in Bradford & Barthel’s Redding office. This Bradford & Barthel blog entry appears with permission.

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