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March 26, 2024

By: Raymond F. Correio

In two recent cases before the Workers’ Compensation Appeals Board (WCAB), one involving a cautionary admonishment and the other resulting in significant monetary sanctions, legal practitioners are reminded of the critical importance of adhering to statutes, regulations, and case law when navigating proceedings before the WCAB. Both of these cases serve as good examples of what all of us need to be aware of in terms of applicable statutes, regulations, and case law to avoid admonitions and potential significant, reportable to the State Bar-type monetary sanctions and expenses imposed by the WCAB.

Case 1: Gomez
The first case, Gomez, is a case where the handling attorney was admonished. The basis for admonishment of defense counsel in the Petition for Reconsideration violated WCAB Rule 10945 in several respects. These specific types of violations are engaged in on a wide scale by both applicant and defense counsel, and the Board frequently issues admonishments related to these issues. Here is the one-paragraph summary of the specific violations in this case related to exhibits and attaching excess documents, some of which were not admitted into evidence:

“At the outset, we admonish defense counsel for filing a petition for reconsideration that violates WCAB Rule 10945 in several respects. In violation of subdivision (b) of Rule 10945, [defense counsel] failed to support his evidentiary statements by specific references to the record. Rule 10945(b)(2) requires that specific references must be made to exhibit numbers and other details; mere reference to the date and author of a medical report does not satisfy the Rule. [defense counsel] also violated subdivision (c) of Rule 10945 by attaching twenty-three pages of excess documents to the petition for reconsideration. [Defense counsel] is admonished to follow the Board’s Rules of Practice and Procedure, including but not limited to Rule 10945, in all future matters.”

Case 2: Meidinger
The second case, Meidinger, is not so cut and dry and resulted in a granting of removal for the sole purpose of the WCAB issuing a Notice of Intention to impose sanctions and reasonable expenses of $2,500 jointly against the defense attorney, the defense firm, and the carrier. Case venued at the Stockton District Office. WCJ: Deborah Whitcomb.

The facts are pretty straightforward. The case was set for an MSC on defense Third Party Petition for Credit. Judge issues an OTOC for further discovery related to defendant’s Petition for Credit. However, after the matter was taken OTOC by the WCJ and prior to defendant filing for reconsideration/removal “defendant attempted to insert an order denying the credit petition on the minute order.” The defendant had been ordered to serve the minute order. When the WCJ received the minute order with the additional language the WCJ crossed out the language defense counsel had inserted/added and instead inserted the actual order made. In the WCJ’s Report on Reconsideration the WCJ noted that “Language included by the defendant in the Comment Section was lined out as not representative of what was Ordered at the MSC, specifically the matter was ordered off calendar for further discovery, no action was taken on the defendant’s Petition for Third Party Credit.”

Defendant then filed a verified Petition for Reconsideration and/or Removal of the WCJ’s interim procedural non-final order when it should have been for Removal. Defendant in a verified pleading “repeatedly contends that the WCJ denied its credit petition despite applicant’s failure to meet its burden of proof and refused to issue an order denying the credit petition thereby denying defendant its right to reconsideration and/or appellate review, without due process of law.” (original emphasis). The WCAB described defendant’s contentions on appeal as follows:

“These contentions are a misstatement of the proceedings, which are not in any way ambiguous. (OTOC, Comments [“WCJ granted A/A’s request for OTOC for further discovery over Defendant’s objection.”]; Report, pp. 1-2.) In fact, there can be no dispute on the record in this case that the WCJ issued no order – one way or the other – related to defendant’s credit petition. The record is crystal clear that no hearing was set on the credit petition, no evidence was taken, and no determination of the credit petition was made by the WCJ. Instead, the record is perfectly clear that the WCJ sustained applicant’s objection to setting the credit petition for trial and took the credit petition off calendar pending further discovery on the issues raised by defendant’s credit petition. (Ibid.)”

The Board also indicated that defendant cannot claim ignorance or that the WCJ’s OTOC “simply took the credit petition off calendar rather than denying that petition entirely” referencing the fact that as indicated hereinabove that defendant tried to change the minute order by inserting language denying the credit petition which the WCJ lined out before issuing the OTOC order. Based on this conduct the WCAB found that:

“Consequently, it appears that defendant’s verified Petition for Reconsideration and/or Removal may have been filed in bad faith in violation of Labor Code section 5813 as it may have been filed ‘to disrupt or delay the proceedings;’ and/or filed ‘for an improper motive;’ and/or may be based on contentions that ‘are indisputably without merit.’ (Cal. Code Regs., tit. 8, § 10421(b), (b)(6)(A)(i)-(iii).)”

Defendant’s verified pleading may contain “false or substantially false statements of fact” (Cal. Code Regs., tit. 8, § 10421(b)(5)(A)(i)); and/or “statements of fact that are substantially misleading” (Cal. Code Regs., tit. 8, § 10421(b)(5)(A)(ii)); and/or “substantial misrepresentations of fact” (Cal. Code Regs., tit. 8, § 10421(b)(5)(A)(iii)); and/or “statements of fact that are made without any reasonable basis or with reckless indifference as to their truth or falsity” (Cal. Code Regs., tit. 8, § 10421(b)(5)(A)(iv)); and/or filed a verified pleading that may “[c]onceals or substantially conceals material facts” (Cal. Code Regs., tit. 8, § 10421(b)(5)(A)(v)). Finally, defendant’s verified pleading may be “[a]sserting a position that misstates or substantially misstates the law…” by arguing that an order taking a matter off calendar to allow the parties to conduct discovery on the issues related to that matter, i.e., in order to ensure due process when the matter does go to trial, is somehow the equivalent of denying that matter without due process. (Cal. Code Regs., tit. 8, § 10421(b)(8).) This is not just a simple misapprehension of what constitutes due process but appears to be a willful and logical inversion of the WCJ’s order to force defendant’s preferred outcome on its credit petition – with no consideration for the misrepresentations of fact that such a strategy requires, for the delay in the proceedings that such a strategy causes, or for the violation.


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