Section 10530 provides that the W.C.A.B. shall issue Subpoenas and Subpoenas Duces Tecum upon request in accordance with the provisions of Code of Civil Procedures Sections 1985 and 1987.5 and Government Code Section 68097.1.

CCP Section 1985 provides that a subpoena may require a persons attendance, and/or for documents to be produced. This section requires that the subpoena include an affidavit showing good cause for the production of the materials and things described in the subpoena, specifying the exact matters or things desired to be produced, setting forth in full detail the materiality of the documents to the issues involved in the case as well as stating that the witness has the desired documents or things in his or her possession or under his or her control. Good cause is shown with an explanation of the materiality of the documents being requested. Obviously if documents are not be sought, an affidavit of materiality is not needed.

CCP Section 1987.5 essentially states that failure to comply with the requirements of Section 1985 makes the subpoena invalid. This section repeats the requirements as set forth in 1985 but includes a statement that the subpoena is invalid for failure to serve a copy of the affidavit as to materiality with the subpoena. With the W.C.A.B. Subpoena Duces Tecum, whenever the subpoena is served the affidavit accompanies the subpoena because the affidavit is on the back of the subpoena.

It should be noted that the W.C.A.B. Rules make no mention of CCP Section 1985.3 dealing with notice to consumer regarding the subpoena. This is because CCP Section 1985.3 does not apply to workers’ compensation subpoenas. This is a common mistake made by many civil attorneys. CCP Section 1985.3 is specifically excluded in Section J. “This Section (Section 1985.3) shall not apply to proceedings conducted under Division 1 (commencing with Section 50), Division 4 (commencing with Section 3200), Division 4.5 (commencing with Section 6100), or Division 4.7 (commencing with Section 6200) of the Labor Code.”

Regarding Personal Subpoenas, the W.C.A.B. Subpoena for Personal Appearance is set up for an appearance at Trial only. If you are wanting to take a Deposition of a non-party before a Trial, you will need to alter the wording on the subpoena form supplied by the W.C.A.B.

If the subpoena is for a non-party, you will need to personally serve the person you are wanting to take the Deposition of. You will also be required to notice opposing parties in compliance with CCP Section 2025. Labor Code Section 5710 provides in part, “The Appeals Board, a Workers’ Compensation Judge, or any party to the action or proceeding, may, in any investigation or hearing before the Appeals Board, cause the Deposition of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in civil actions in the Superior Courts of this state.” CCP Section 2025 places limitations on the distance that you may require a witness to travel. It requires a 10 day notice to opposing counsel before the deposition is to take place (assuming that you have personally served opposing counsel). If you have not personally served the opposing counsel, you must add an additional 5 days for mailing time.

The deposition notice shall include the address where the deposition will be taken, the date and time of the deposition, name of the deponent, address and telephone number of the deponent if known if the deponent is not a party of the action. If the name of the deponent is not known, the deposition notice shall set forth a general description sufficient to identify the person or particular class to which the person belongs. If the deposition is going to be videotaped, notice of this must accompany notice of deposition.

Finally, if the subpoena is for an injury occurring after January 1, 1990 and before January 1, 1994, it must be accompanied by a copy of the DCW-1 Form as well as an affidavit that a claim form has been filed pursuant to Labor Code Section 5401, subdivision (C). Any notices to opposing counsel regarding depositions must be accompanied with a valid proof of service.

Applicant & Defense Attorneys Obliged to Inform State Board of Control of Pending Workers’ Compensation Case if Applicant Received Money from the Victims of Crime Program

At the request of Curt Soderlund, Deputy Executive Officer of the Administration Division of The State Board of Control, the following article is being published.

REPAYMENT OBLIGATIONS TO THE VICTIMS OF CRIME PROGRAM

he nation’s first crime victims compensation program was established in California in 1965 to provide financial assistance to crime victims and their families. The State Board of Control (Board) administers the Victims of Crime Program (Program). Government Code Section 13959 et. seq. which is designed as a program of last resort, acting as a safety net for victims of crime who have no other means of reimbursement to cover funeral/burial expenses, psychotherapy and rehabilitation. Funding for the Program is provided through the Restitution Fund, which receives revenue from fines and penalties assessed against offenders.

Due to the unfortunate escalation of violence in the workplace, many workers will become eligible to receive financial assistance from the Program. When a victim/claimant has received Program benefits and obtains a judgement, settlement or award as a result of the same crime for which the Program has paid benefits, the Board is allowed a statutory lien against this recovery in accordance with Government Code Section 13966 et. seq., and Labor Code Section 4903(h). Because of the statutory lien rights held by the Board, the lien applies to all forms of compensation, including temporary disability, permanent disability and the proceeds of an approved compromise and release whether or not there is a dispute concerning coverage. Government Code Section 13966.01(b) allows the Board to reduce its lien amount by 25% as an incentive for victims to pursue litigation against those parties responsible(in whole or in part) for the crime.

The law mandates that a victim/claimant and attorney must inform the Board not only of the initiation of an action, but must also contact the Board prior to settlement of the case to allow the Board the opportunity to perfect and settle its lien (Government Code Section 13966.01(d) & (e). Legislation was recently enacted (Senate Bill 744, Chapter 295, Statutes of 1993) to strengthen and clarify the statutes which hold attorneys accountable for contacting the Board when a workers’ compensation case is initiated, as well as when it is settled. Attorneys are mandated to contact the Board if they believe their client may have received Program benefits. A plaintiff or attorney, defendant, defendant’s attorney or defendant’s insurer who, with the knowledge of the Board’s lien, settles a judgement without satisfying the Board’s lien, will incur liability to the State.

In the event that the Board’s lien is not resolved, the Board may file a Declaration of Readiness to Proceed (DOR) to obtain a hearing. Additionally, the Board may refer the matter to the State Attorney General’s Office for disciplinary action if the attorneys of record release the proceeds of a settlement to the victim/plaintiff without satisfying the state’s lien under Victims of Crime Act. The Board may also submit requests for disciplinary actions against attorneys to the State Bar.

After the Board’s lien is satisfied, the injured worker can submit additional qualifying expenses to the Board for consideration. However, the net settlement amount must first be exhausted towards expenses not covered by the Program. Further, every dollar that is recovered by exercising the Board’s lien is deposited back into the Restitution Fund and is then used to assist other victims of crime.

The Board encourages attorneys who represent victims of crime to consult with their clients to determine if they have received from the program. As the legal community becomes more aware of the Program and the Board’s lien rights, the instances when a case is settled without contacting the Board are expected to decrease. The Board hopes that this article will convey how important it is for attorneys to work with the Board to settle its lien.

For additional information on the Board’s lien, please contact Shirley Ramudo, Assistant Chief, Revenue Recovery and Compliance Branch at (916)327-9467.

Silverman on California Vocational Rehabilitation

have recently reviewed the new Sixth Edition of California Vocational Rehabilitation which is co-authored by Leonard J. Silberman, Esq. and Susan Wulz Silberman, Ph.D. The new sixth edition is being published by James Publishing, Inc.

The first thing that you will notice in the new edition of California Vocational Rehabilitation is the size of the publication. The binder is approximately 11 1/2 inches high. The materials previously published were in a binder 9 inches high. I don’t have too many bookshelves which will accommodate binders more than 10 inches high. However, the print on the 8 1/2 by 11 inch pages in the texts were easy to read and well organized. While I am having a problem finding a place to put the book in my law office, I certainly appreciate the better organized and formated book.

The sixth edition also includes subtitles which did not exist before. These subtitles assist the reader by quickly allowing a very focused research. If you have one particular question that needs to be addressed, the subtitles are of great assistance.

One of my complaints with the fifth edition was lack of coordination or bringing of the various laws together for research. Depending upon the year of the injury, various rules and statutes are applicable. In the fifth edition, the materials were very segmented. In reading the book, it was as if you were reading a number of separate books bound together. With the new sixth edition, there has been a significant attempt to bring the materials together as one single book.

This is a must purchase item. The book can be purchased on a 30 day trial basis. The (800) number for James Publishing, Inc. is (800) 440-4780. Although the binder indicated that it is the “Second Edition”, don’t be fooled. There was a publishing error on this. The price of the Sixth Edition of California Vocational Rehabilitation is $139.00 (each) plus tax & shipping.