Change of Venue: Too late to File?
Previously, Brian Duncan wrote an excellent article addressing proper venue. However, what happens if an objection to venue is filed too late? If the employee and employer are in Fresno, Riverside, Bakersfield, etc., and the applicant’s attorney files the application in Los Angeles or San Francisco, will the applicant, defense, employer and/or witnesses be stuck with the travel, expense and inconvenience of defending their case over 100 miles away? Just for the convenience of the applicant’s attorney? The answer is …maybe, maybe not.
In review, Labor Code 5501.5 identifies 3 possible locations for workers’ compensation venues:
- The county where the applicant resides at the time of filing;
- The county where the injury allegedly occurred;
- The county where the employee’s attorney maintains his or her principal place of business.
The county where the employee’s attorney maintains his or her principal place of business is often chosen by the applicant’s attorney. Why not select a venue that is convenient for the applicant attorney?
There has been a noticeable increase in venue selection to the board closest to the applicant attorney’s office. This may or may not be the correct venue. Within 30 days of notice to the employer of venue selection, the employer may file an objection to venue. IF the objection is filed timely, the application shall be filed pursuant to either the county where the applicant resides or the county where the injury occurred.
What happens if an objection is not filed or is filed beyond the 30 day window?
Not all is lost. While Labor Code 5501.5 addresses initial venue selection, under certain circumstances, it may be possible to later to seek to change venue.
Under Labor Code 5501.6, the WCAB is permitted, not mandated, to change venue on petition by either party. If the selected venue was under selected as the employee’s attorney’s place of business, the court may grant a change of venue if good cause is shown. This is not automatic.
Good Cause is a term of art and to be interpreted by the Administrative Law Judge. Specifically, if the appropriate venue would be the County where the alleged injury occurred, or where the employee resides, but venue was selected based on the applicant attorney’s location, it may be inconvenient for witnesses to attend proceedings. If this is the case, a petition can be submitted by either party seeking venue change.
However this may have some drawbacks. To change venue for the convenience of witnesses, the petition must spell out the “names and addresses of these witnesses and the substance of their testimony shall be specifically set forth in the request for change of venue.” The disclosure of the substance of your witness’ testimony so early in the case may at times be self defeating. The decision to file the petition for change of venue must be weighed against the value of the testimony. The decision to disclose information must be carefully evaluated by the party prior to filing the petition under Labor Code 5501.6.
Why should venue be an issue? Although not a scientific analysis, I have observed that there appear to be differences in how a case is managed by applicant attorneys with venue in their local WCAB:
- It seems that there is no down side for the applicant attorney to file for a hearing for any reason when they will be at that WCAB on a number of matters. Result: increased number of hearings and this increase defense costs and increased costs to employer and witnesses to attend.
- Applicant attorneys will give greater consideration to resolving issues informally rather than traveling to distant hearings for single matters. Result: the number of hearings is decrease resulting in defense cost savings and more expedient resolution of issues.
- Attendance at local hearings by applicants is improved. This decreases the delays in settlements and resolution of issues. An applicant does not want to drive 2-5 hours or more to attend a hearing, but may attend if it is local. If they are at the hearing, settlement documents may be completed on site, rather than being delayed while the offers are relayed by phone or letter. Result: potentially quicker resolution of claims limited exposures, overpayments, increased treatment, delays, added issues, etc.
In summary, here are my recommendations:
- Any time an application for adjudication is received by the employer or insurer, carefully and promptly evaluate the venue selection. If the selected venue is other than the county where the employee resides or the alleged injury occurred, consider filing an immediate objection to venue.
- If there are questions as to the choice of venue, please contact the attorneys at Parker Kern Nard & Wenzel to discuss venue.
- If the window of opportunity to file for an objection to the selected venue under Labor Code 5501.5 has passed, carefully evaluate the benefit/risk of disclosing the specific testimony of your witnesses early in the case.