How many depositions of the applicant may you take in one case

This is a panel decision which ordered sanctions against the insurance carrier and the defense attorney for engaging in bad faith and frivolous actions.

The defendant took a deposition of the applicant. At the end of the deposition the defense attorney said he had no more questions.

Four years later the defendant wished to take a second deposition. Applicant’s attorney objected and requested a protective order and sanctions under Labor Code section 5813 and Code of Civil Procedure 2023. The defendant filed a petition to compel the deposition. The Workers’ Compensation Judge (WCJ) ruled that the defendant was not entitled to a deposition in that code of Civil Procedure Section 2025.610 only allows one deposition.

Applicant requested sanctions and attorney fees for having to fight the deposition and the WCJ awarded $15,610 in attorney fees and a penalty of $2500.

Defendant filed for reconsideration and lost. The Board agreed that once the record is closed that the defendant is only entitled to one deposition. There are other ways in which to complete discovery.


The Court Of Appeal indicates who must bear the loss for a stolen check

This is a very significant case for workers’ compensation principles.

This is a published decision of the Court of Appeal. The applicant was employed as a laborer when he injured his back. The applicant authorized his attorney to sign legal documents on his behalf. The applicant moved several times during the pendency of the claim.

The applicant attorney settled the claim and signed the Compromise and Release (C&R) on behalf of applicant. The C&R had an incorrect address for the applicant. The settlement was approved with the incorrect address.

The employer mailed a check to the applicant to the incorrect address listed on the C&R. The check was fraudulently endorsed and cashed at a check cashing store. The applicant never received the check.

The case went to Trial before a Workers’ Compensation Judge (WCJ) on the issue of nonpayment. The WCJ ordered the defendant to issue a new payment. The defendant filed a Petition for Reconsideration which was denied.

The Appellate Court looked at the Uniform Commercial Code and determined the payee never became the holder of the check. Therefore, the issuer of the check remains liable to the payee. The employer had to issue a new check to the applicant.


The Workers’ Compensation Appeals Board approves a huge settlement for traumatic injury

This is a very significant case for workers’ compensation principles.

This newsletter usually only reports on cases decided in California. The content of this newsletter is to report on a reputed settlement of 8.9 million dollars by way of a structured settlement.

Apparently the applicant fell from a scaffold and his head struck the ground. He suffered a mild traumatic brain injury and a multiple personality disorder. The applicant was only 18 at the time of the injury. The applicant also experienced auditory hallucinations that included hearing human voices.

There were multiple diverse medical opinions. The applicant needed constant medical care and there was an issue of whether he would need home health care versus a rehabilitation facility.

The significant value of the case was in future medical care due to the applicant’s young age at the time of injury. The structure settlement was designed to pay money to a conservator for the applicant’s care.

In high value cases, structure settlements are a value to all parties.


The Court of Appeal Issued a Non Published Decision Involving Mistake, Inadvertence, or Excusable Neglect

This is a very significant case for workers’ compensation principles in that it discusses the current case law.

The applicant was injured in 1999.  The applicant received an award from the Ventura Workers’ Compensation Board. Within five years the applicant filed a Petition to Reopen, but filed it at the Los Angeles Board.

A trial was held at the Oxnard Board on the Petition to Reopen in 2010. The Workers’ Compensation Judge (WCJ) ruled that the Workers’ Compensation Appeals Board (WCAB) lacked jurisdiction over the Petition to Reopen because the petition was not timely filed at the correct board. At the time the applicant filed the petition, the venue regulations required him to file in Ventura not Los Angeles.

On Petition for Reconsideration the WCAB agreed with the WCJ.

The Court of Appeal reversed. The venue  regulations changed and the Court of Appeal considered this a procedural change that should not affect liability.

They further indicated that,  as a matter of law, relief should be granted under the theory of mistake, inadvertence or excusable neglect,  since the applicant merely filed at the wrong board.


The United States Court of Appeals Appeals Issued a Decision in Michigan with Far Reaching Effects

This is a very significant case for workers’ compensation principles.

This newsletter usually only reports on cases decided in California. This case was decided in a United States Court of Appeal regarding entitlement to workers’ compensation benefits under Michigan law. This decision will apply to California law as well. The case revolved around an alleged systematic attempt by the workers’ compensation carrier to deny benefits. The appellants in this case alleged a Racketeer Influenced and Corrupt Organizations Act (RICO) suit.

They alleged fraudulent denial of worker’s compensation benefits. They alleged among other things that the carrier employed a physician to deliberately deny benefits.

The appellate court indicated that even though state law punished the improper denial of benefits the appellants could still bring a RICO suit because that is under federal law.

Here the case was allowed to proceed because the RICO claims were not preempted by state law and because plaintiffs adequately pleaded a pattern of racketeering.

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 3501 Jamboree Suite 602, NB 92660

Phone: 949 252-1300


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