The Discovery Channel…..and a Merry Christmas to All!

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I love Motion Day.  I know y’all are tired of hearing me say “The best law comes out of those Motion Day decisions.”  And I love it when esteemed practitioners share their outcomes with me for the betterment of the group.  Today’s post is courtesy of Joe Andrews,  a man whose face is synonymous with “Rule to Show Cause” and  “Motion to Compel.”   Let’s just say our friend Joe is no stranger to the IAB Legal Hearing.    J

One of these days, perhaps in my retirement (which is not coming any time soon), I am going to put together a book of IAB practice and procedure and it will be annotated with a veritable hit parade of Motion Day rulings.  At least…….that is my dream.  And I am thinking my dear one, Chris Baum,  might join me as co-author.  You know Chris…..the one whose decisions are mini-treatises and so precious that long ago, I nicknamed them the “Chris Baum Cherishables.”  Yes, that one.  The one person who might be worthy to undertake this case law adventure with me.

I digress  (lost in the reverie of a case law undertaking with Chris Baum).  So back to Joe Andrews.   I was complaining about representing an employer and sending the DOL a blanket request for any and all IAB documents regarding any and all IAB proceedings, work injuries, etc.  Darn if that DOL didn’t send me back a letter telling me I needed the claimant to sign a release.  So Joe kindly sent me a copy of Thomas Speakman v. John E. Steele, IAB #1438211 (5/5/16)(ORDER) which stands for the proposition that “when no petition is filed, only Board decisions and Board orders may be released as they are public documents; however once a petition is filed against an employer, then the employer becomes a defendant entitled to full discovery into prior accidents and as such, the defendant is entitled to reply upon the employee’s petition against it to access the rest of the IA file materials.”

So bottom line- if no petition, all you get are IAB decisions and orders, and if a petition is pending you can demand the entire file contents .  I kind of love how there is a little admonishment in there by the IAB slapping the hands of the DOL as to the release of this information.  In this age of the serial claimant, this kind of discovery is both urgent and relevant and in some extreme cases, quite necessary to prevent fraud (along with Facebook).

Okay,  so this next decision is a keeper.  If I ever write a second book,  titled “The Best of Joe Andrews”, this one will definitely merit a prominent place in the discussion.  Succinctly stated by Joe:  “ Employers can require claimants to complete Statements of Facts on Term Petitions or other Employer Petitions and the Board also adopts Superior Court Rule 33 to require Claimants to sign the Statement of Facts themselves instead of letting attorneys provide little to no information only to have the claimant at trial say he never saw that.”   I like this one …….immensely.   I have often been frustrated at the paucity of information and disclosure when dealing with any Petition other than an initial DCD .   I am thinking that this ruling can also be used to compel a claimant to complete an updated Statement of Facts on a DACD as well as a Review Term.  The case is K&S Iron Works v. Jorge Nevarez, IAB #1287991 (9/1/16(ORDER).  There is so little pre-hearing discovery in workers comp………….we owe it to ourselves to preserve what few rights we have.

So as we head into the holiday weekend,  let’s all reflect on the reason for the season……and let’s enter 2017 with renewed fervor to practice law with a spirit of candor, disclosure,  and with all the civility that uniquely defines us as workers comp lawyers.

Merry Christmas!  Happy Hanukkah!  And God bless us, everyone!

Cassandra Roberts

 

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Feliz Navidad y Propsero Ano……..and Greetings from the Supreme Court

I am back.  And you are likely thinking “it’s about time.”

Yes, I have been sidelined for the last 8 months by a sweet little ditty that I fondly refer to as “the cardiac event.” Slowed me down, but it didn’t kill me, praise God,  and I am back with a vengeance.  Blog has been silent too long.  Someone needs to speak up and stir the pot.

So to herald my return,  a case of epic proportions.  As you all likely know (unless you’ve been living under a rock) , the Supremes decided the Guardado v. Roos Foods case a few weeks ago.    The case that had the potential to create a new class of displaced worker.  To render a work accident the wage loss motherlode for the “No habla Ingles” population.

First let me say that I share in the pleasure and pride of my colleagues at Elzufon Austin Tarlov & Mondell  at the remarkable outcome obtained through their efforts.  This decision in Roos Foods is a testament to their skilled advocacy (this means you, Andy Carmine, Elissa Greenberg, Gary Baker).  Frankly, pretty much everyone in town thought this case would be affirmed, or otherwise disposed of by the Court in a manner that would be unfavorable, if not punitive,  where employers are concerned.

Huge victory finding that illegals are not prima facie displaced.

Huge victory as well in ruling that an employer does not need to produce a labor market survey of jobs that would require testimony of illegal/illicit hiring practices but can instead introduce this “reliable market evidence that employment within the worker’s capabilities is available to undocumented workers”.

Now all that said, and not disrespecting any of the benefit achieved by the defense in this case,  I will feel better when I see this played out a few times.  Why?

  • From the Supreme Court’s mouth to the Board’s ears—one really has to keep an open mind as to what the Board will do with this pronouncement in terms of practical application.  The good news is that the IAB decisions are written by law-trained hearing officers who will hopefully exercise their due diligence to put legal theory into practical application.
  • Illegal alien status is still a factor in the rebuttal of the displaced worker allegation.  And a pesky one at that.
  • Thirdly, this “reliable market evidence” of jobs realistically available to illegals.  How is that testimony going to play out if someone has a significant injury and sedentary limitations?  Obviously there is going to be an “education curve” as to those trades and vocations that typically draw from our illegal population—but the concern is that those jobs consist very specifically of vocations such as: landscaping,  dry-wall, roofing, food service-  and I harbor concerns that there is a paucity of sedentary jobs out there and will hold that concern until enlightened otherwise.  And will the term “reliable market evidence” itself be subject to debate as to exactly what that means.  It is certainly going to put the onus on these vocational rehab/labor market experts to do their jobs in a manner that has not been done before (and are they up to it?)

So that is my spin on the outcome of this case.  Again, huge props to Scott Mondell and his team for working what many consider a near-miracle.

So I would normally sign off “irreverently yours.”  But having literally come back from the dead,  I don’t think I will ever regard anything with irreverence again.  That is so not where I am at in this phase of life, cherished life……So all I will say is  “ it’s a beautiful day to be alive.”  🙂

Warmest holiday regards!

Cassandra Roberts