Apellate Case of the Quarter: Escamilla v. WCAB

Tuesday, April 10, 2012 | 0

In an en banc decision, the California Workers' Compensation Appeals Board gave notice that it may, pursuant to Labor Code section 4907, suspend or remove hearing representative Mr. Daniel Escamilla’s privilege to appear in any proceeding as a representative of any party before the WCAB or any WCJ, unless good cause is shown why privilege should not be suspended or removed.

Mr. Escamilla may soon lose his privilege to appear in any proceedings as a representative of any party before the appeals board and workers' compensation judges because of his continuous sanctionable conduct. While acting as a hearing representative, Mr. Escamilla engaged in repeated bad-faith actions such as willful failure to comply with statutory and regulatory obligations and frivolous tactics that were intended to cause unnecessary delay in proceedings. He continuously filed pleadings that contained misrepresentation of material facts and engaged in other actions that were contrary to the State Bar and the Appeals Board’s Rules. State Bar Rules of Professional Conduct 5-200 (A) and (B), in pertinent parts, provides “in presenting a matter to a tribunal, a member shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law.”

Notwithstanding the several sanctions imposed, Mr. Escamilla continued his habitual pattern of behavior and it became apparent that sanctions were an ineffective tool in causing Mr. Escamilla to conform his conduct to the Appeals Board’s Rules. The ongoing concerns led the court to consider taking action under Labor Code section 4907 to suspend or remove Mr. Escamilla’s privilege of appearing in any proceeding as a representative of any party before the Appeals Board or any WCJ. Supporting its decision, the court reasoned that Mr. Escamilla having appeared at a plethora of workers’ compensation hearings knows or should know the Appeals Board’s and State Bar’s rules. Additionally, it has long been established that acting as a hearing representative and appearing before the Appeals Board and WCJs constitutes the performance of legal services. (Eagle Indemn. Co. v. Industrial Acct. Com [1993])

Pursuant to Labor Code section 4907 “the privilege of any person, including attorneys admitted in the Supreme Court of the state to appear in any proceeding as a representative of any party before the appeals board, or any of its referees, may, after a hearing, be removed, denied, or suspended by the appeals board for a violation of this chapter or for other good cause.” If Mr. Escamilla’s privilege to appear at the WCAB is suspended or removed, per LC section 4907, he would be prohibited from performing the following:

1) Filing pleadings reflecting that the individual is appearing on behalf of another;
2) Negotiating and settling claims on behalf of a client with third parties;
3)    Appearing at depositions on behalf of another;
4)    Engaging in or responding to discovery requests.

Before officially suspending or removing the privilege to appear in any proceeding as a representative of any party before the Appeals Board or any WCJ, Mr. Escamilla is entitled to due process and a hearing. The said hearing has not yet taken place as Mr. Escamilla is currently without an attorney. His former attorney, Traci Hinden, per her request, was recently relieved as Mr. Escamilla’s attorney of record on the grounds that her client refused to listen to her advice. The WCAB held that to protect Mr. Escamilla’s “utmost due process” it would afford him one final opportunity to retain counsel prior to any further conference or hearing. A final hearing is still pending.

Kiana Karbassi is an attorney in the Fresno office of Grancell Lebovitz Stander Reubens and Thomas, a workers' compenstion defense firm. This column was reprinted with permission from the firm's quarterly newsletter.