Over the recent past, we have noticed a trend of injured workers retaining counsel from outside the local area. Almost invariably, out of town applicant attorneys file their Applications for Adjudication of Claim at the WCAB District office closest and most convenient to their own office location rather than the location of the employee’s residence or the place where the injury occurred. This becomes a difficult issue in cases such as where the employee and employer are located in the Central Valley but the case is filed in Los Angeles venue. The number one task on the case often becomes: How to get the case venued back to the local WCAB district office?
Labor Code §5501.5
California Labor Code §5501.5 allows for the location of where the Application can be filed:
- County of residence of injured worker (IW)
- County where the injury occurred
- County of employee’s attorney
Labor Code §5501.5(c) provides that where venue is selected based on the Applicant Attorney’s place of business, the employer has opportunity to object and have the case transferred back to the district office where the injured employee lives or where the injury occurred. Any such objection by the employer must be lodged within 30 days of receipt of the Notice of Application for Adjudication (see 8 CCR §10410). Additionally, that objection must state, under penalty of perjury, the date the notice of adjudication case number and venue selection was received. So long as the requirements of 8 CCR §10410 are strictly adhered to, the transfer of venue back to the location of the injured employee’s residence or where the injury occurred is fairly routine. However, failure to absolutely comply with any of the mandates of that code section my result in the matter remaining in the inappropriate venue.
Labor Code §5501.6
In the case where an employer, carrier or third party administrator fails to object to venue within the 30 days allowed under Labor Code §5501.5, success may still be found under Labor Code §5501.6. This section has no specific time limits for filing but does require good cause for the venue transfer. There are very few cases to guide us on what constitutes “good cause.” Convenience of the witnesses is likely the most common grounds. However, the code section itself states that if he change of venue is based on convenience to the witnesses, the witnesses names, addresses and the substance of their proposed testimony shall be included in the request to change venue.
In our experience, obtaining a change in venue for the convenience of witnesses is a rarity and risky since you are giving the opposing side a preview of your witnesses’ testimony on the off chance that a venue transfer is actually granted.
Accordingly, the best practice is to keep an eye out for Notices of Application that are filed in distant venues. When an applicant attorney selects an inappropriate venue for filing his/her application, a claims examiner should act immediately (within 30 days) and issue to ensure best chances of success in getting the case back to its rightful home venue.