I went grocery shopping this weekend and stopped by the bakery area to pick up some bread.1
I asked the clerk, “Do you have any pumpernickel bread?”
She responded, “What kind?”
“Any kind of pumpernickel of absolutely any type.”
Her answer: “No.”
Last week I managed to obtain three walk through settlements at three different Boards in the same day – mostly due to the good will and kindness of Board staff and other attorneys. It was my plan to walk through a settlement in San Jose and then Oakland in the same morning to be followed up with an afternoon settlement in San Francisco.1
My morning walk through in at the San Jose WCAB was with an unrepresented injured worker. I had set my Board file and settlement documents down next to me and turned to speak to the injured worker – but when I turned back my Board file and documents were gone. An attorney had walked into the room, picked up my documents and Board file, put them in his bag along with his other materials nearby, and left for his office.
At this point, the dream was almost dead before it had even begun. Even if I managed to chase down my file which was now somewhere in San Jose, I only had a slim chance of finishing a walk through that morning and no chance of doing a second in the same morning.
I very nearly aborted the mission and returned to my office in defeat. Ultimately, I decided that I’d rather risk a spectacular failure than not try at all.
I called my office to get the phone number of the attorney I thought had picked up my file, called their office, and left a message asking for their attorney to call me back. He called me back a few minutes later and said my file was in his bag – he must have put it there accidentally. Unfortunately, his schedule didn’t permit him to bring the file back to the Board.
After apologizing to the injured worker and begging the forgiveness of the Judge, I left the Board and my really excellent parking space for the attorney’s office. I was probably inside their office for less than 30 seconds total since the attorney had left my Board file with his receptionist. Back to the Board, a less than primo parking spot, and last place in the walk through line. 23
Fortunately, the Judge and extremely understanding attorneys in the room allowed me to cut ahead in line to finish my walk through and continue on with my quest.
[mappress]
I’m not going to hold you in suspense. Yesterday I decided to try to fulfill my dream of doing three walk through settlements at three different boards in one day. Thanks to several very nice people I managed to do it. But for the kindness, patience, and tolerance of three Judges, other workers’ compensation attorneys, and especially the Board staff, I never would have stood a chance.
I had a settlement in San Jose in the morning, one in San Francisco in the afternoon, and then another in Oakland. Google Maps says it should have been 2 hours 34 minutes and 132 miles.
I’ll fill in the details later, but suffice it to say that almost nothing went as planned. 1
My personal best is two walk through settlements at two different WCAB district offices in a single morning. Tomorrow I am going to attempt three walk through settlements at three different WCAB district offices in a single morning. My plan is to start my day at the San Jose WCAB at 8:00AM, hit the Oakland WCAB afterward, jet to San Francisco, and then return to the office. Google Maps tells me that this is going to be 134 miles over 2 hours and 39 minutes. 12
As I mentioned before, there’s a lot of things that can go wrong – traffic, long walk through lines, a broken photocopier. 3
But, I’ve done what I can to ensure this works. I’ve called the other parties, have a checklist of everything I need to do in the order I need to do it, my cell phone is charged up4 , phone numbers for opposing counsel and my clients hand, GPS charged up, prepared Minutes of Hearing, Document Cover Sheets, Document Separator Sheets, Awards, and Orders. 56
If you happen to be in San Jose, Oakland, or San Francisco today stop me and say hello. (And – pretty please may I cut ahead of you in line?)
Lastly, I’ll be checking back here throughout the day, so how about leaving me a word of encouragement in the comments?7
Vocational experts seem to have gotten pretty well trampled by the recent Ogilvie I and Almaraz/Guzman I en banc decisions. The Ogilvie II and Almaraz/Guzman II en banc decisions didn’t do them any favors either.
As far as I can tell, the WCAB1 in Ogilvie II basically flip flopped on the role of vocational experts. Under Ogilvie I at least one very entrepreneurial vocational counselor was making money performing the Ogilvie I formula adjustments and offering to testify to support their findings.2
The Workers’ Compensation Appeals Board in Ogilvie II has very explicitly stated that vocational experts are not necessary when it comes to performing the Ogilvie I formula adjustment – since it is an objective and retrospective calculation.
This leaves open the question of whether vocational expert testimony is only relevant when defending against an Ogilvie argument.
