Monday, January 28, 2013

Professionalism in Comp Requires Constant Training

In California, as in many states, workers' compensation claim adjudication is an administrative system.

I have expounded upon the advantages of having an administrative system deal with claim litigation over a civil court process, namely as some other states such as Oklahoma ponder the creation of an administrative adjudication process.

One of the downsides to having an administrative process is that, technically, anyone can "appear" before the adjudicatory board. In California this board is known as the Workers' Compensation Appeals Board (WCAB).

While rules of professional conduct and code sections governing attorney practices would prohibit lay persons from representing other persons in most situations, in administrative claim adjudication, particularly in California practice, they are virtually inapplicable. There are some restrictions against lay persons representing the interests of injured workers, but the practice of using "hearing representatives" is well established.

Some hearing representatives have formal legal education and some are very, very good at what they do - in fact I have met some who were much more knowledgeable about work comp practice and much better at representing their client's interests before the WCAB than many licensed attorneys.

But they are the exception. Unfortunately, a large quantity of these people either lack sufficient training and education or just don't care.

This produces unprofessional work product, and causes the administrative system to bog down: arguments are illogical or are unsupported; briefs and petitions lack clarity, are full of grammar and spelling errors; and many times documents are not filed timely or served on the parties in accordance with procedural rules.

The WCAB is tired of the lack of professionalism in the practice of workers' compensation litigation, so I am impressed with and support the board's push towards cleaning up this aspect of the system.

At the California Applicant Attorneys' Association (CAAA) Winter Conference in San Diego this past weekend, the Commissioners pointed out that it's not going to be business as usual any longer, and that sloppy practices will be met with dismissals, and if abusive enough, with further discipline such as restrictions against appearing at board hearings.

Commissioner Marguerite Sweeney said that she has been "astounded" by the number of petitions coming before the board that are filed by non-attorneys and the "lack of quality and competence" in them.

Expanding on the theme, Chairperson Ronnie Caplane said, "please tell us what relief you want" in Petitions for Reconsideration.

This would seem to be very, very basic. Don't whine. Don't complain. Set forth your argument and let people know what you want - in short, clear, concise terms.

The folks who have decided to put their names on these documents, or are placed into a position of making arguments before judges and commissioners, need to step up their professionalism.

Sure the rules of evidence are lax in administrative hearings. But that doesn't mean you can dress like a slob. Wear a suit. Present yourself professionally. Address the bench and the opposition with respect. Learn to speak eloquently, articulately - avoid slang, make logical sense, and have support (case law, statutory or regulatory citation) for your position.

Become educated - there is a lot of course work available from all sorts of sources. WorkCompCentral (shameless plug) has hundreds of specialty courses on line and hosts over 20 live seminars and webinars every year presented by respected professionals; judges, attorneys, doctors who not only know their stuff but want you to know it too.

CAAA has their bi-annual conferences, LawWorm has course work, CEB and the State Bar also provide educational opportunities, and none of these are restricted to people with professional licenses. There's no reason that non-lawyers (and lawyers as well) can't have the training necessary to be competent and professional in workers' compensation litigation.

The workers' compensation bar can do a lot by itself to improve the professionalism of the practice by making sure there are training programs in place for new hires as well as ongoing training for established practitioners, whether attorneys or hearing representatives. The resources are there - it's simply a matter of accessing them.

Education isn't cheap. But losing a case or position because one isn't up to date on either the substantive or procedural law is a lot more expensive, particularly if it causes the loss of an ongoing source of case referrals as can happen with the defense side.

Caplane said she was happy SB 863 explicitly authorized the board to suspend the privilege of any non-attorney to appear before it. Her sentiment was backed up by Commissioner Alfonso Moresi who said the commissioners had "really wanted that piece of legislation and we're glad we got it."

We all have to acknowledge that workers' compensation is a very technical, complex area of the law that requires special knowledge and skills. It is up to us, the day to day people in the trenches, to make sure that matters that go before the board don't, as Commissioner Sweeney commented about petitions, have a "lack of quality and competence."

1 comment:

  1. On the heels of my post this morning the Wall Street Journal ran an article on lawyer civility: