One of the most common issues that occur with EAMS has to do with those elusive venue statutes and regs: LC §§5501.5, 5501.6 and 8 CCR §§10409, 10410, 10411, 10412, 10210 (jj), 10301(gg) & 10232(a)(9).
It all starts with the “Application for Adjudication of Claim” which can be found on the DWC website:
Once you open the form on your computer, there are three venue choices:
County of residence of injured worker (IW)
County where the injury occurred
County of employee’s attorney
Once the venue box has been selected, the applicant must then enter the correct venue office code. For a complete list of those codes, you need to pull up page 7 of the Document Cover Sheet, which can also be found on the DWC Website. (Please note that Grover Beach is still found on this page, although the office has moved to San Luis Obispo. All other forms have since been updated to include SLO as a venue choice.)
Objecting to Venue under LC §5501.5
The venue selection choice is drawn verbatim from LC §5501.5. If the applicant selects the attorney’s office location as the venue, the employer may object to that, and force venue back to either the venue where the IW lives or where the injury occurred.
Although LC §5501.5 provides that the employer’s objection must be filed within 30 days of receipt of the LC §5401.5 information request form, employers might find that a little hard to do, since LC §5401.5 doesn’t exist any more. Oops! But no worries, the WCAB figured that one out a while ago and drafted 8 CCR §10410 to provide that an employer, or more likely an insurance carrier, may object to the third venue choice.
Practice Tip > In order for an objection to be valid, objecting parties should strictly comply with 8 CCR §10410, which means they must object within 30 days of receipt of the notice of the adjudication number and choice of venue. Plus, the party must state in the objection “under penalty of perjury the date when the notice of the adjudication number and venue was received.”
Choice #2 = Place of Injury, not Place of Business
Occasionally, parties misconstrue choice #2 as being the location of the employer’s business, which is often synonymous with the county where the injury occurred, but not always. A childcare placement service might have a primary place of business in San Francisco. However, if one of their employees has been injured while caring for a child in Santa Rosa, the Santa Rosa District Office (SRO) would be the correct choice for venue, not San Francisco (SFO).
What if there is no office in the County of Venue?
Alternatively, what is the correct venue choice if the IW lives in and was injured in Danville in Contra Costa County? There is no district office in Contra Costa County. Would venue default back to the employer’s place of business in San Francisco, where there is a district office? Apparently not, LC §5501.5(d) provides that in such a case, venue would be appropriate at the district office “nearest” any of the three venue choices stated above. Most likely, Oakland (OAK) would be the correct venue. However, if the IW’s attorney’s place of business was in San Mateo county, the San Francisco office (SFO) or even the San Jose office (SJO), whichever was closer, might be the appropriate choice. If this latter venue was chosen, the employer would have the same right to object as stated above.
Walk-Throughs & Venue
This wacky venue issue most often arises when a party attempts to walk through a settlement document at a district office that does not have proper venue and they can’t understand why the clerk at the front desk is being so unreasonable and won’t process their walk-through request. Well, there’s a reason for that. It can be found in 8 CCR §10280(g) which provides:
“A walk-through document may be acted on only by a workers’ compensation administrative law judge at the district office that has venue.”
It’s possible, that in a hardship case, the presiding judge (PJ) may make an exception to this rule. However, the clerk at the front desk does not have authority to do that.
Objecting to Venue under LC §5501.6
There is one last option for a party who is unhappy with the applicant’s choice of venue. Under LC §5501.6, an IW or defendant may petition for a change of venue for good cause, such as the convenience of the parties and the witnesses.
There was once a practice of entertaining motions for change of venue only after a DOR was filed and the case was ready for trial. However, several new regs have been issued that tweak that process a bit.
Regulation §10411 states that the PJ of the office that currently holds venue must act on a Petition to Change Venue within 30 days after filing of the Petition. “Act” means that within 30 days of filing, the PJ must grant or deny the change of venue or serve notice that a status conference will be held to give the parties an opportunity to be heard on the issue. Once venue has been changed, all further matters must be determined at that office. (8 CCR §10412.)
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