Siefkes: The Venue Advantage: Trials Return to the WCAB

Friday, April 8, 2022 | 0

It is the evening before trial — a trial you have been preparing for and have anticipated for months.

William R. Siefkes

You are confident in your position and are well prepared to make your case before the Workers’ Compensation Appeals Board. You have organized your file exhibits and have assured that they have been electronically filed in the Electronic Adjudication Management System.

Your home office is set up with exhibits readily accessible, you have assured your internet connections are sound and you are prepared to connect to the Lifesize cloud for tomorrow’s trial testimony.

As you wrap up your trial preparation for the evening, an eerie feeling comes over you. Something does not seem right. You have confirmed the correct trial date per the notice of hearing and rechecked your own personal calendar.

It then hits you: Tomorrow’s trial is an in-person proceeding before the WCAB many miles from your home office. Your sense of security and trial preparedness is suddenly shaken as you now must consider the lengthy drive to the WCAB the following morning and the time constraints in preparation that this now entails.

Sound familiar? I am sure we all have become accustomed over the last couple of years to relying upon the procedures enacted as a result of the COVID-19 pandemic resulting in appearances of all types, including trials and expedited hearings that have been conducted from the convenience of your office, or even your living room. It seems like decades ago that physical appearance before the WCAB and travel to your respective board were the norm. Oh, how times have changed.

However, now that the COVUD-19 positivity rates are falling, the Division of Workers’ Compensation 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 within the DWC release number 2022-25 issued on March 9 references the decision to be in line with Gov. Gavin Newsom’s “SMARTER” plan for the next phase of the pandemic response.

The decision by the DWC to return to in-person trials reemphasizes the need to be diligent and aware of all aspects and issues as to your incoming claims, including the issue of venue, which I must admit had become less of a factor, given our reliance upon remote proceedings.

During the course of the pandemic, it has indeed become more common to note the filing of applications at remote WCAB locations. Many practitioners and larger firms have taken on cases where their clients reside and the injuries occurred many miles from where the handling attorney maintains his or her principal place of business.

As was common both before the pandemic and thereafter, it is not surprising that applications have been filed pursuant to Labor Code Section 5501.5(a)(3) in the county where the applicant's attorney’s office had been located.

Given pre-pandemic practice and the prior presumptions that in-person hearings would be scheduled at boards near the applicant’s attorney’s place of business, our initial evaluation of the claim would include an immediate reference to the anticipated claim venue and an original understanding as to where the future appearances, including conferences and trials, would eventually occur.

During the course of the pandemic and coming as no surprise, many practitioners had taken on the representation of clients whose physical residence and location of their employment were situated many miles, and in some cases, in different parts of the state than the attorney’s principal place of business.

It was important to assure that for the benefit and convenience of your client and employer witnesses, as well as the applicant, that the proceedings would be held at the appropriate venue such that all relevant parties could participate. It was never a pleasant conversation when informing your employer 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 now consists of claims venued at various boards throughout the state that are many miles from the injured worker’s physical residence, the location of the employer and potential employer witnesses and/or the location where the injury occurred, failure to recognize this potential situation could become problematic come the date that the issues are to be presented before the WCAB.

Therefore, as the world begins to open up and normality returns to our workers’ compensation practices, it is worth a quick refresher course as to the requirements of Labor Code Section 5501.5 and its relevance to your particular case situation. Immediate identification of a potential venue issue could make a big difference in the eventual outcome of your case.

It is indeed probable that a majority of the applications filed will have been submitted pursuant to Labor Code Section 5501.5(a)(3) near the offices of the attorney for the injured worker. However, in anticipation of the potential need for in-person appearances at some time over the course of the claim, including eventual trials and expedited hearings, a diligent defense attorney on behalf of the client and for the benefit of the parties involved must keep in mind the importance of evaluating the venue issue in a timely manner such that the appropriate objections pursuant to Labor Code Section 5501.5(c) can be properly considered.

Upon review of the initial file materials — if indeed it appears as though the location of the alleged injuries, the place of business of the employer, the residence of the injured worker and any potential trial witnesses would warrant an alternate and more appropriate location for the adjudication of proceedings — an immediate and timely objection must be considered.

Labor Code Section 5501.5(c) clearly provides the employer an opportunity within 30 days from receipt of the information request form to object to the selected venue site and clearly states that the remedies to include transfer of venue to either the county where the injured employee resides or where the injury allegedly occurred.

Although these venue disputes are not novel to our workers’ compensation practices, their relevance and the controlling statutes must be once again reemphasized during these changing times as we return to in-person proceedings.

In summary, as we all dust off our suits, ties and retrieve our court attire from the depths of our closets in preparation for our return to trial before the WCAB, we must all take time to ponder the venue advantage upon our return to in-person trials.

Rob Siefkes is a partner and the managing attorney at Bradford & Barthel’s office in Redding. This entry from Bradford & Barthel's blog appears with permission.