The Workers’ Compensation Appeals Board upped the proverbial ante to $65,000 in total potential sanctions against an applicant’s attorney and hearing representative, in two new en banc decisions.
The WCAB issued two new decisions on June 17 that provided notices of intent to impose additional sanctions against attorney Susan Garrett, and hearing representative Lance Garrett. The decisions clearly explain that they are punishing a “continuing course of conduct” that has occurred across a number of cases. In short, the WCAB has contended that the Garretts filed petitions for reconsideration shortly before trial or on the morning of trial, solely for the purpose of delaying proceedings.
“Filing petitions for reconsideration designed to delay a trial can be described as frivolous and/or bad-faith conduct, which is sanctionable,” the WCAB wrote in the case of Hidalgo v. Roman Catholic Archbishop, et al. The name of the other en banc decision that was issued on June 17 is Gonzalez v. The Bicycle Casino, et al.
These two decisions appear to propose a grand total of up to $25,000 in new total sanctions against the Garretts. The Garretts have a chance to dispute the notice of intent to issue sanctions, and it’s safe to assume that they will do so.
(Keep in mind, that $25,000 is in addition to the $40,000 in sanctions that were previously ordered against the Garretts – thus the $65,000 mentioned above. For more on the prior decisions, continue reading below.)
PRIOR EN BANCS ON THE SAME TOPIC
If this sounds familiar, its because the WCAB issued a similar en banc decision on April 10 that threatened sanctions against the Garretts for the same reasons. The name of that en banc decision is Ledezma v. Kareem Art Commissary and Mfg.
After the April 10 decision in Ledezma, the WCAB gave the Garretts the chance to dispute up to $40,000 in total proposed sanctions. The Garretts filed their pleadings, and the WCAB was not persuaded – the commissioners affirmed the $40,000 in total sanctions.
In the May 16 decision affirming those sanctions, WCAB Chair Katherine Zalewski cited the Garrett’s evident lack of “concern or regret” in “filing eight frivolous petitions for reconsideration.” The Garretts’ responses failed to acknowledge that filing frivolous petitions for reconsideration to obtain continuances “is an improper legal tactic and a serious abuse of our procedure.”
“Instead, Susan Garrett and Lance Garrett’s responses trivialize the act of filing multiple frivolous petitions for reconsideration as an ‘inconvenience,’” Zalewski wrote. “However, their conduct here goes far beyond inconvenience.”
She went onto explain that frivolous petitions for reconsideration:
- Cost significant time and resources of the WCAB
- Delay the issuance of other decisions at the WCAB
- Delay a determination of benefits in each case at bar
- Wastes the time and resources of 1) opposing counsel, 2) witnesses, 3) court reporters, 4) trial judges
- Hurts the ability of other applicants’ to get a trial or hearing date, because these cases are bogging down the calendar
With all that in mind, Zalewski concluded, “Trivializing their (the Garretts’) conduct as ‘inconveniences’ borders on frivolous and does not warrant a reduction in sanctions.”
TAKEAWAYS
Earlier this year, we warned parties to:
- To take care to accurately label ones petitions’ as “petitions for removal” or “petitions for reconsideration.”
- If one cannot make a trial date for any reason, the practitioner would be well-served to immediately inform the WCAB as soon as that is apparent. If one is disputing a case being set for trial, a timely petition for removal would be more appropriate.
To read more on that, click here.
Additionally, your humble blogger cannot ignore the context of this year’s plethora of decisions from the WCAB commissioners. If one takes a step back, a different group of attorneys attacked the WCAB’s “grant and study” practice, in which the Board granted itself more time to issue decisions in cases warranting reconsideration. Regardless of what one thinks about that practice or the ensuing litigation, the WCAB had a backlog of reconsiderations pending largely due to insufficient staffing and a lack of resources.
Since then, our lawmakers and regulators have proposed giving the WCAB more resources. But if litigants are going to criticize the WCAB for being inefficient, it’s fair to expect the WCAB to turn around and scrutinize the things that are causing inefficiencies.
A RECENT TOWN HALL
As the WCAB scrutinizes those inefficiencies, any conduct that could be construed as bad faith or frivolous could be punished severely. Therefore, it’s no coincidence that the LA WCAB Presiding Judge Robert Rassp held a “town hall” meeting on June 21, where he:
- Told parties to meet and confer before MSCs more often, as not enough parties are doing that. (He noted that failure to meet and confer prior to a MSC is sanctionable.)
- Gave tips on how to avoid Orders Setting Aside (OSA) settlement approval requests. (Parties need to file medicals more often.)
- Said that when applicants’ attorneys are agreeing to represent a new applicant, they need to first check EAMS and see if another attorney has already filed a similar claim on behalf of that applicant. That would help avoid duplicative applications and claims.
- Gave e-filing tips, such as “don’t use ‘Petition-Other’ as a EAMS document label unless a judge tells you.” Similarly, he advised parties not to use “Correspondence-Other” as well. Why? Both do not generate a “task” for the judge to act on the petition or letter that was e-filed. Without a “task,” the judges don’t know how to act on it.
- Instructed parties to improve their etiquette when arguing in court.
While these may seem like small practice tips, the reason why Presiding Judge Rassp is giving these tips is to promote greater efficiency in the system. The undersigned is familiar with Rassp’s outlook on the workers’ compensation system, and his desire to make it a self-navigable benefits delivery system is admirable.
Eventually, if things become more efficient, backlogs of reconsiderations could disappear, and calendars at the state’s busiest boards would become less clogged. The presiding judge’s goal is simple – litigants don’t have to all get along, but they should at least try to resolve disputes and file things correctly. If more parties did that, we’d have a much cleaner and more efficient arena to do battle in on the issues that count.
CONCLUSION
The saga with the Garretts is not over. In the meantime, heed these decisions as warnings – make sure your house is clean, and do not file anything in bad faith – as doing so could feature drastic consequences.
Got a question about workers’ compensation defense issues or pending legislation? Feel free to contact John P. Kamin. Mr. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location, where he monitors the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin previously worked as a journalist for WorkCompCentral, where he reported on work-related injuries in all 50 states. Please feel free to contact John at jkamin@bradfordbarthel.com or at (818) 654-0411.
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