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A series of articles emphasizing practical
knowledge you can't find in practice guides
and interviews with experts who share
their techniques for effective and efficient
case management
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Articles emphasizing practical knowledge you can't find in
practice guides
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Profiles of people who changed workers’ compensation law.
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• Warren Schneider
• Marjory Harris
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< Continued from page 1
HARRIS: What changes in how workers’
compensation attorneys go about discovery have
you seen in the years since Hardesty?
GLOW: When I wrote Hardesty, the paper war was
expanding geometrically in the personal
injury field. We saw the defense argument in Hardesty as the camel’s nose under
the tent,
and we wanted to nip in the bud the paper war concept of litigation.
HARRIS: New
Labor Code §4663 on apportionment contains
language on disclosure:
“(d) An employee who claims an industrial injury shall, upon request, disclose
all previous
permanent disabilities or physical impairments.” Do you see LC §4663(d) as
inviting
interrogatories into workers’ compensation discovery? Or is it consistent with
existing
LC §5710?
GLOW: I’m afraid it opens the door into broader discovery. I
would object on the grounds that
it calls for medical or legal opinions, which the applicant is not competent or
qualified to
answer.It will be up to the appellate courts to decide whether interrogatories
are now allowed
on previous impairment/disabilities, or whether it should be part of the
deposition process that
requires the defendant to pay the applicant’s attorney fees.
HARRIS: In 1999, the Court of Appeal cited Hardesty with
approval in the Allison decision
(Allison v. WCAB (72 Cal.App.4th 654, 64 CCC 624), which raised the
issue of the
physician-patient privilege and the litigation exception to that privilege:
“WCJ's have authority
to hear discovery disputes and make orders respecting the same. It is within
their sound
discretion to determine if a discovery dispute is appropriate for a hearing.”
In Hardesty you said, “the trial judge should try to achieve an
appropriate balance between
the public policy favoring liberality of pre-trial discovery and the specific
policy applicable to
workers' compensation cases that they shall be adjudicated expeditiously,
inexpensively
and without encumbrance of any character.”
Do you think workers’ compensation practice is meeting the constitutional
mandate of accomplishing “substantial justice in all cases expeditiously,
inexpensively, and without encumbrance of any character . . .”
GLOW: No, no, no! Article XIV, §4 provides for “A complete
system of workers' compensation
includes adequate provisions for the comfort, health and safety and general
welfare of any
and all workers and those dependent upon them for support to the extent of
relieving from
the consequences of any injury or death incurred or sustained by workers in the
course of
their employment, irrespective of the fault of any party; also full provision
for securing safety
in places of employment; full provision for such medical, surgical, hospital
and other remedial
treatment as is requisite to cure and relieve from the effects of such injury.”
Justice is not
being provided “expeditiously, inexpensively, and without encumbrance” -- cases
take too
long to resolve – it’s ridiculous. And the constitutional mandate for medical
treatment is not
met by ACOEM and the new rating schedule does not adequately compensate for
permanent disability.
HARRIS: You were in active legal practice for 40 years, in
many positions in the workers’
compensation arena. Looking back on your long career in workers’ compensation
law, which
of your many accomplishments gives you the most satisfaction?
GLOW: In addition to Hardesty, I was particularly
proud of the peremptory challenge
[CCR §10453].
Right after my appointment as a Commissioner, in 1975, I urged the Board to
adopt a rule allowing a peremptory challenge, which was available in civil and
criminal cases.
I felt it was absolutely necessary to have this because there where judges who
would never
get around to trying a case, or who were too defense oriented and would distort
the law and
the facts, depriving injured workers of their rights. Challenges for cause were
useless and
almost never granted.
When I was president of California Applicants’ Attorneys Association [CAAA], in
1973-1974,
I was very much involved in the drafting and lobbying for Labor Code §5500.5.
It eliminated
voluminous paperwork especially for workers who worked out of a union hall and
hearings
where there would be ten or twelve defense attorneys present. The election
remedy further
reduced the burden of proving the CT case.
I was very pleased that the Supreme Court in Judson Steel [Judson Steel Corp.
v. WCAB
(Maese), 22 C3d 658, 43 CCC 1205, 1210-12 (1978)] agreed with the
Board’s interpretation
of Labor Code §132a. Mel Witt and I almost came to blows over this. He did not
think the
Board had the power to hold an employer liable for discrimination and wrote the
dissent.
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