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|From the Front Lines -- Good Cause & the Continuance|
By Kelvin Collins - November 1, 2011
I met an opposing attorney last week who spent three hours on the Southern California freeway system to arrive to the Workers’ Compensation Appeals Board on time for our lien trial. She definitely got kudos from me for being on time. I am admittedly late occasionally, and that’s definitely not a good habit to get into. One who continually shows up late could get a reputation for not being prepared.
Speaking of not being prepared, "continuances” have been a very hot topic of discussion lately. As you may know, continuances are not favored by the court and will only be granted upon a showing of good cause. However, you might ask yourself, what is good cause for the continuance, and are the appropriate statutes being applied correctly?
Good cause is a finding by a workers’ compensation judge based on adequate or substantial grounds or reason to take a certain action, or to fail to take an action prescribed by law. In this case, the alleged good cause will determine if the request for a continuance is warranted.
Speaking of not being prepared, "continuances" have been a very hot topic of discussion lately.
What makes this topic really interesting is the fact that each judge has his or her own discretion to determine if good cause exists. Although the fact pattern of each case may be exactly the same, the ruling from each judge will constantly produce a different result. This is why there are still too many continuances granted. Is this the judge's fault? Absolutely not! I put the blame squarely on the party requesting the continuance, i.e. generally the party not prepared to go forward.
When a party files a Declaration Of Readiness To Proceed, they are signing under penalty of perjury they have completed discovery and are ready to move forward. If the moving party is not ready to proceed, they then have exposure for sanctions, costs, and fees exceeding $2,500.00. As any claims examiner knows, paying penalties is never a pleasant experience.
How do you avoid penalties due to continuances? Make absolutely certain you have properly prepared your case before filing a Declaration Of Readiness To Proceed. How do you know if your case is properly prepared for a lien conference? Ask yourself the following four questions:
1: Have all the medical reports been served on all lien claimants?
2: Have all the defense trial exhibits been served on all lien claimants?
3: Have all medical bills and liens been sent for review?
4: Has the explanation of benefits been served on all lien claimants?
The aforementioned four steps should be considered mandatory procedure before filing a Declaration Of Readiness To Proceed to any lien conference. Should you have filed demands for document production which have not been appropriately responded to, you may file a declaration of readiness to proceed requesting a status conference for your outstanding discovery issues without exposure for penalties. Prior to the status conference, make absolutely certain your historical timeline for your prior discovery demands are documented to show the judge your due diligence. This will show good cause to grant your motion to produce and have the case taken off calendar without any exposure for penalties.
PS: Our case was continued.
Readers who'd like to respond to Kelvin Collins may write to the editor, Lonce LaMon at email@example.com
Kelvin Collins is the nom-de-plume for a Workers Compensation Hearing Representative who regularly appears in Southern California at the Workers’ Compensation Appeals Board