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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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In the first of a series of profiles on people who made a
difference in workers’ compensation law, Marjory Harris
interviews The Honorable Mervin N. Glow. During a
long and remarkable career as an applicants’ attorney,
Commissioner of the Workers’ Compensation Appeals
Board, workers’ compensation judge, and now a mentor
to attorneys, Merv Glow’s intelligence and compassion
have changed the law and the lives of many injured workers.
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In 1976, Commissioner Mervin N. Glow wrote the opinion in Hardesty,
a board panel decision
that is still a leading case on discovery in workers’ compensation law (Hardesty
v. McCord
& Holdren, Inc., 41 CCC 111 (BPD-1976). The Board found that "the
procedural provisions of
the Code of Civil Procedure (§§2016, et seq.) relating to discovery are not
applicable in
workers' compensation proceedings. Proceedings before the Workers' Compensation
Appeals
Board are governed by the specific provisions of the Labor Code and of the
Board's Rules of
Practice and Procedure adopted pursuant to the authority conferred by
§5307 of the Labor
Code, not by the Code of Civil Procedure." Apart from the subpoena and the
deposition, no
other discovery methods have been incorporated from the Code of Civil Procedure
[CCP].
In this interview, The Honorable Mervin Glow talks about the changes in
workers’
compensation discovery since Hardesty, his achievements, and the
current state of
workers’ compensation law and practice.
HARRIS: Commissioner Glow, do you think the Code of Civil
Procedure discovery provisions
should be further integrated into workers’ compensation law, beyond the
provisions for
subpoenas and depositions?
GLOW: No. In Hardesty I wrote, "We are enjoined by
Article XX §21 [now Article XIV, §4]
of the Constitution of this state to afford the parties appearing before us a
forum which shall
accomplish substantial justice in all cases expeditiously, inexpensively, and
without
encumbrance of any character. The adoption by us of a set of rules relating to
discovery
which would permit a paper war of interrogatories and would require frequent
pre-trial
appearances by counsel to argue discovery motions would be inconsistent with
that
constitutional mandate." Interrogatories would be an irresistible temptation, a
goldmine to the
defense bar. They can bill by the hour. This also is true for production of
documents. If they
want records, let them subpoena them.
WCJs (a title I was proud of and still use) don’t want to read 100 pages of
deposition, or 30
pages of interrogatories and 112 pages of answers to interrogatories. They
don’t want to
read all these medical records.
If they want to increase the discovery chores of applicants’ attorneys, they
should require defendant to pay. In the old days, applicants’ attorneys were
not paid to do depositions. The applicants’ bar lobbied for the
§5710 fee, and if there
are expanded discovery rights, there should be fees paid by defendant.
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