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

 

How To Do It: Articles, Interviews &
Practice Tips

Articles emphasizing practical knowledge you can't find in practice guides

People Who Made A Difference
Profiles of people who changed workers’ compensation law.

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Letters to the Editors

Meet the Editors
• 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
(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






People Who Made a Difference
In an ongoing series of profiles on people who made a difference in workers’ compensation law, Marjory Harris interviews William A. Herreras, Esq. A certified specialist in workers’ compensation law, past President of California Applicants’ Attorneys Association, and co-chair of CAAA’s Amicus Curiae Committee, Mr. Herreras is California’s foremost workers’ compensation appellate lawyer.
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> The Defense Perspective
> SIF & SB 899
> Apportionment Fictions