Venue is usually one of the earliest issues that needs to be assessed at the outset of workers’ compensation claims.

Shahram B. Shabestari

In most instances, an applicant’s attorney files a claim in a county where his office is, where he usually conducts business and where he has familiarity with the district office.

At times, an applicant’s attorney might apply to a district office where his client is located but that is geographically distant from the attorney’s office. This may be due to consideration of convenience for the client to attend potential hearings on the matter. (Given the rules enacted since the pandemic, and the current system of remote attendance, the geographical consideration appears to be pertinent only to trial and expedited hearings where an in-person appearance is required).

In those instances where the applicant’s counsel selects a district office closer to the office, the issue of venue could potentially be problematic for the defense side. This would depend on the nature of the case and whether the location would present an inconvenience for potential employer witnesses due to the lack of geographic proximity to the selected district office.

Given the above, it is crucial to make an early and timely assessment of the venue issue on receipt of the application documents.

Labor Code 5501.5

California Labor Code 5501.5 provides pertinent guidelines for challenging the selected venue.

This statute allows the applicant to file in the county where he resides on the date of the filing. The alternative option is to file in the county where the injury allegedly
occurred, or in a cumulative trauma case, where the last alleged injurious exposure occurred.

In represented cases, it also allows the application to be filed in the county where the applicant’s counsel maintains his principal place of business.

The Labor Code is rather flexible if the selected county has more than one district office, and the application can be filed at any district office within the county if it meets the criteria specified above.

In the instances where the applicant attorney’s place of business is in a separate county from where the applicant’s residence is and where the injury has occurred, the employer has an opportunity to object, but it should do so timely.

The Labor Code allows the employer 30 days from receipt of the information request form to object to the selected venue. The code of regulations provides further clarity by stating that an objection can be filed within 30 days after notice of the adjudication case number and venue is received by the employer or insurance carrier. This requires a statement under the penalty of perjury regarding the date when the notice of the adjudication case number and venue was received. Then, the venue shall be either in the county where the injury allegedly occurred or in the county where the applicant resides on the date of the filing.

What if there's no WCAB office?

There can also be instances where there are no Workers' Compensation Appeals Board offices in the county where the venue is permitted to be filed.

Labor Code Section 5501.5 (d) allows the application to be filed at the WCAB office nearest to the injured employee on the date of the filing or the nearest place where the injury allegedly occurred. It can also be filed where the applicant’s attorney maintains his principal place of business unless the defendant makes a timely objection based on the previously mentioned criteria.

Timing is everything

Defendants have 30 days to object to an applicant’s initial venue selection. The time-sensitive nature of the venue issue requires a diligent early review of the file in order to avoid being held captive in a venue that may not be optimum from the defense perspective, including possible unfamiliarity of defense counsel with the selected district office.

Should the employer fail to make a timely objection within 30 days, there may still be a pathway to salvage the issue.

Petition for change of venue on good cause

Labor Code Section 5501.6 allows filing a petition for a change of venue, irrespective of the time deadlines. However, this requires a party to show good cause for the transfer of venue.

This section requires that the petitioner elaborate and provide specific reasons for the change of venue. If a good cause is asserted based on the convenience of witnesses, this section requires that the petitioner provide clear details, including the names and addresses of witnesses. In addition, the substance of the witnesses’ testimony needs to be specifically set forth in the request.

The California Code of Regulations allows the other party (usually the applicant’s attorney) to object to a petition for a change of venue within 10 days of the filing of the petition.

Presiding judge's call

The decision as to granting the petition for change of venue will be addressed by the district office’s presiding judge, who has the discretion to grant or deny the petition for change of venue, or alternatively serve a notice of status conference within 30 days of the filing of the petition.

Conclusion

Given the possible complications and costs of litigating the venue issue, it is good practice to assess it as early as possible. It could potentially save time and effort in preparing a petition and having the task of persuading and providing a good cause for the transfer.

The question of venue could be crucial throughout the life of the case, where the defendant’s familiarity with the district office could provide valuable tactical advantages during the litigation process.

Shahram “Sean” B. Shabestari is an equity partner at Bradford & Barthel’s Los Angeles location. This entry from Bradford & Barthel's blog appears with permission.