Among the en banc rulings of the WCAB this week was “In Re: Daniel Escamilla”.
Escamilla, appearing as a lien rep in various WCAB proceedings in Southern California, is noted to have engaged in a pattern of misleading statements and frivolous tactics. Despite having been sanctioned by various judges and even called before the WCAB itself for a commissioner’s conference, the
pattern is said to have continued.
The WCAB has directed Judge David Hettick “to receive evidence and arguments concerning the suspension or removal of Mr. Escamilla’s privilege to appear pursuant to Labor Code section 4907 and this Notice and to receive any mitigating or other relevant evidence he may have to offer. (Lab. Code, § 5309(b).)”
As the board notes, “Acting as a hearing representative and appearing before the Appeals Board and WCJs constitutes the performance of legal services. (Eagle Indemn. Co. v. Industrial Acc. Com. (Hernandez) (1933) 217
Quoting a 1980 case regarding one Louis Moran, the WCAB en banc Escamilla decision says:
“The State Bar Rules demarcate the sanctionable limits of advocacy and indicate how – what may at times be – conflicting duties to clients, opposing parties and the Board are to be reconciled. These rules also give an attorney or lay representative notice of what sort of conduct is required. By appearing as a lay representative he [Mr. Moran] is charged with accepting certain limitations on his advocacy.” (Moran, supra, 45 Cal.Comp.Cases at 525).
Yet, hearing reps are never certified or sworn in. There is no test they must pass.
In my years of experience in handling workers’ comp cases In Northern California, I’ve seen very few problems with hearing reps. Mostly hearing reps are used by lien claimants, and by and large they seem to conduct themselves well at the Oakland and San Francisco boards where I practice.
But if the proliferation of liens spreads from some Southland boards statewide we could see more fly by night lien reps and more problems.
Some self-insured employers use hearing reps to attend settlement conferences and handle walk-thru settlements. Some of these folks are very skillful and very productive.
And some law firms use hearing reps. Occasionally these are new admittees waiting for bar results, law students who are also working, graduates struggling to pass the bar, or office paralegals pinch-hitting for a busy attorney.
Could the WCAB tighten its procedures and regulate hearing reps more?
Undoubtedly. Hearing reps could be required to register, certify (or test) their familiarity with benefits and procedures, do CLE, file documents revealing their employer or compensation arrangement, etc etc..
But just as Jerry Brown has noted that not every human problem needs a legislative solution, perhaps not every problem needs a regulatory solution either.
What’s clear is that this WCAB is concerned about ethics and misbehavior at the board. They intend to move on egregious behavior in order to protect the integrity of the judicial process. We’ve seen that already with some high profile panel decisions involving attorney misrepresentations to the WCAB.
Here is a link to the Escamilla decision:
http://www.dir.ca.gov/wcab/EnBancdecisi … Daniel.pdf