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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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HARRIS:
You have been the petitioner or respondent or appeared on amicus
curiae briefs in innumerable appellate decisions. Which ones
do you regard as your most significant cases?
HERRERAS: There
are three memorable
cases. The first case is the Rhiner case
[Rhiner v. WCAB, 58 Cal. Comp. Cas 172 |
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(1993)] where the Supreme Court
awarded a penalty under Labor Code §5814 for
past, present and future delays. Although SB 899 has substantially
reduced the
amount of penalties, the language in Rhiner is extremely important
and is
applicable to cases today, including the duty of the employer to conduct
reasonable
investigations and pay voluntarily without an order of the WCAB.
The first case I argued in the Supreme Court was the Nickelsberg case
[Nickelsberg v. WCAB, 56 Cal. Comp. Cas 476 (1991)]. This
case was a 4-3
decision by a divided court. We were unsuccessful in persuading the
court that
temporary disability continued beyond five years following an award.
I think that
arguing the case, along with my colleague Mike Rucka, was a memorable
experience. One of my earlier cases, Maples [Maples v. WCAB, 45
Cal. Comp.
Cas 1106 (1980)] is also memorable because it held that the employer
is estopped
from claiming credit where the carrier overpaid temporary disability
after receiving
a report that indicated the applicant was permanent and stationary.
The case
continues to be an important case for practitioners.
HARRIS: How did a solo practitioner from the Central Coast
become the leading
workers’ compensation appellate counsel in California? What
was your path?
HERRERAS: I
was fortunate to live in an area where the Court of Appeal, division
6
(Ventura) demonstrated concern over the plight of injured workers.
Consequently
the court was willing to hear a number of appellate cases, contrary
to other
appellate districts that demonstrate little interest in workers’
compensation.
Regrettably, in recent years our local appellate court has changed
significantly since
the 1980s and 90s. Also writing is fairly easy for me. And finally,
I dislike losing.
HARRIS: You support various charitable and political organizations.
Can you tell
us what interests you most?
HERRERAS: I'm involved
in the Mexican American legal community as well as the
Democratic Party. I’m also a member of the board of governors
and past
president of CAAA. We are extensively involved in the political process.
HARRIS: You are Marlene Escobedo's attorney [Escobedo v. WCAB,
70 Cal. Comp.
Cas 1506 (2005)(writ denied) & Escobedo v. Marshalls, 70 Cal.
Comp. Cas 604
(2005)] Do you see many forensic examiners following the commissioners'
general rules on supporting apportionment with "substantial medical
evidence"? Do you have more pending appeals on this issue?
HERRERAS: The silver
lining in Escobedo involves the substantial evidence test.
Physicians continue to fail to adequately discuss the basis for their
opinion
regarding apportionment. The failure to meet the substantial evidence
test renders
the apportionment unlawful. The disappointment in Escobedo is that
the board
indicated in dictum that pathology, alone, may constitute a basis
for apportionment.
However, scientifically, absent some evidence of pre-existing disability,
I believe that
the Escobedo case does not justify apportionment. Regrettably, Escobedo
has
emboldened the defense bar to litigate every single apportionment
case.
Consequently, numerous cases are tried, litigated and appealed. Fortunately,
our
review of the appellate decisions of the board and the courts indicate
that the
defense is generally unsuccessful because they have not been able
to meet the
substantial evidence test.
HARRIS: I asked this question of Jettie
Pierce Selvig, Esq., in the second of this series of profiles,
and Melissa Brown, Esq.
in the fourth profile, and I am curious how you feel. “We are
currently witnessing around 30 years of advances in the rights of
injured workers wiped out in one legislative session. Everyone talks
about “the pendulum” having swung too far in one direction
and inevitably swinging back toward the middle. Do you think that
will happen, and how long will it take?”
HERRERAS: In my opinion
the pendulum will swing back in favor of workers.
Currently, the defendants are unduly confident about the success of
SB 899.
Recent cases such as Dykes and Nabors demonstrate that the
pendulum is
starting to swing back in favor the worker. Moreover, I believe the
Board or Court of
Appeal will eventually determine that the new permanent disability
rating schedule
is unlawful because it fails to meet the statutory standard involving
the requirement
that empirical evidence support the new PDRS. Recent cases, including
the Costa
case [Costa vs. Hardy and the State Compensation Insurance Fund,
GRO 31810],
indicate that the Board may very well be inclined to strike the new
PDRS as unlawful.
For Mr. Herreras’s resume, click
here.
William A. Herreras, Esq.
Attorney at Law
P.O. Box 387
Grover Beach, CA 93483
(805) 473-8550
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