by Scott Rountree –Â
An Application for Adjudication (Application) is part and parcel of workers’ compensation litigation. In a nutshell, it is the opening document filed to establish the WCAB’s jurisdiction and to get the matter moving along.
The vast majority of Applications are filed by the injured worker (IW), but may also be filed by a defendant or lien claimant. The Application sets forth the issues for which the filing party seeks relief, such as TTD, PD, medical treatment, voucher, etc. Typically the applicant’s attorney files the Application, works up the case and —upon completion of discovery—the case is settled or goes to trial.
The Application is Ringing!
Far too often, defendants fail to treat the Application like a ringing phone…it needs to be answered. But why?
Typical issues raised by a defendant’s answer are apportionment, entitlement to a voucher and the always fun affirmative defenses (post termination and initial physical aggressor, to name but a couple).
Labor Code § 5505 states a defendant… “may, within 10 days after service of the application… file [an] answer… setting forth the particulars in which the application is inaccurate or incomplete, and the facts upon which he intends to rely.” Thus, the plain language of the statute makes clear that an answer is not mandated.
Hey, who does work that isn’t required? Aren’t you busy enough… should you really be looking for more non-mandated work?
Go ahead. Relax. Don’t file an answer.
But relax at your peril!
CCR 10484 provides the following ominous language:
Evidence upon matters and affirmative defenses not pleaded by Answer will be allowed only upon such terms and conditions as the Appeals Boards or workers’ compensation judge may impose in the exercise of sound discretion.
In other words, failure to raise an affirmative defense such as post-termination or initial physical aggressor in the answer allows the savvy applicant to argue the defense is waived! Do you really want to leave this waiver issue in the “sound discretion” of your local WCJ?
Better safe than sorry is a good rule of thumb. If there is a shred of evidence that an affirmative defense is at play, raise it! Issues raised by both sides do not have to be entered into evidence at trial. BUT, those issues not preserved are potentially waived.
Answer that ringing Application!
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