2 IN THE MATTER OF THE ARBITRATION BETWEEN
6 GLEN GROSSMAN and JORGE VARGAS,
9 STATE COMPENSATION INSURANCE FUND,
17 Date: Wednesday, September 17, 2003
19 Time: 10:48 a.m.
21 Location: 25 San Juan Grade Road, Suite 200
A P P E A R A N C E S
4 385 Grand Avenue, Suite 201
Oakland, CA 94610
5 FAX: 510-444-3604
6 E-mail: firstname.lastname@example.org
For the Grievants:
CARROLL, BURDICK & McDONOUGH LLP
9 Attorneys at Law
2100 - 21st Street
10 Sacramento, CA 95818
11 TEL: 916-456-2100
12 BY: GARY M. MESSING, ESQ.
For the Respondent:
STATE OF CALIFORNIA
15 LEGAL DIVISION
1515 "S" Street, North Building, Suite 400
16 Sacramento, CA 95814-7243
17 TEL: 916-324-0512
18 BY: EDMUND K. BREHL, ESQ.
Labor Relations Counsel
19 Department of Personnel Administration
MELINDA YOUNG, C.S.R.
22 License No. 1787
GLEN GROSSMAN, JORGE VARGAS, MIGUEL ESTRADA
2 INDEX OF TESTIMONY
3 N MICHAEL RUCKA
DIRECT EXAMINATION BY MR. MESSING .............. 15
4 CROSS-EXAMINATION BY MR. BREHL ................. 48
5 GLEN GROSSMAN
DIRECT EXAMINATION BY MR. MESSING ............. 60
6 CROSS-EXAMINATION BY MR. BREHL ............... 122
REDIRECT EXAMINATION BY MR. MESSING .......... 137
7 RECROSS-EXAMINATION BY MR. BREHL ............. 141
8 EXHIBITS: PAGE
Joint Exhibit 1, applicable MOU between ........ 7
9 the parties.
10 Joint Exhibit 2, grievants' grievance .......... 7
dated September 6, '02.
Joint Exhibit 3, September 9, 2002 ............. 7
12 letter on CB&M letterhead.
13 Joint Exhibit 4, a handwritten note ............ 7
dated September 27th on SCIF letterhead.
Joint Exhibit 5, October 2, 2002 letter ........ 7
15 on SCIF letterhead with an attachment.
16 Joint Exhibit 6, October 4th, 2002 ............. 7
letter on CB&M letterhead.
Joint Exhibit 7 November 1st, 2002 ............. 7
18 letter on SCIF letterhead.
19 Joint Exhibit 8, November 4th, 2002 ............ 7
letter on CB&M letterhead.
Joint Exhibit 9, November 14th, 2002 ........... 7
21 letter on Department of Personnel
Administration, DPA, letterhead.
Joint Exhibit 10, December 27th, 2002 .......... 8
23 letter on DPA letterhead.
24 Joint Exhibit 11, January 2nd, 2003 ............ 8
letter on CB&M letterhead
1 Union Exhibit 1, Resume for Glen .............. 63
Union Exhibit 2, job description for .......... 69
3 attorney level C.
4 Union Exhibit 3, document entitled ............ 70
"State Compensation Insurance Fund," job
5 description for senior staff counsel
Union Exhibit 4, State Personnel Board ........ 73
7 specification for staff counsel.
8 Union Exhibit 5, SPB specifications for ....... 73
staff counsel III.
Union Exhibit 6, Production Profiles and ...... 94
10 Litigation Activities
11 Union Exhibit 7, Production Profile (By ....... 99
Union Exhibit 8, Status Progress Report, ..... 100
13 report date 08/16/2002
14 Union Exhibit 9, SCIF document re ............ 102
Grossman, Vargas and Pickering
Union Exhibit 10, Master Calendar ............. 103
Union Exhibit 11, report dated September ..... 114
17 19th, 2002.
18 Union Exhibit 12, computer printout .......... 116
September 19th, 2002 of discrimination
19 claims in SCIF Salinas office.
1 P R O C E E D I N G S:
2 THE ARBITRATOR: This is an arbitration between
3 the -- what is the name of the union? I'm sorry.
4 MR. MESSING: CASE.
5 THE ARBITRATOR: That stands for what?
6 MR. MESSING: California Association of
7 Attorneys, State Attorneys, Law Judges and, hang on,
8 I've got the contract here.
9 THE ARBITRATOR: Oh, it's right here. I've got
11 MR. MESSING: It should be on the contract. In
12 State Employment.
13 THE ARBITRATOR: I've got it. CASE, C-A-S-E,
14 is the acronym, and it stands for California Attorneys,
15 Administrative Law Judges and Hearing Officers in State
17 And I'm not quite sure how that's an acronym,
18 but we'll let it go at that.
19 Okay. It's between CASE and the State of
20 California, the State Compensation Insurance Fund.
22 The arbitrator for the case is Frank Silver.
23 Could counsel state your appearances, please.
24 MR. MESSING: Carroll, Burdick & McDonough by
25 Gary Messing for the grievants.
1 MR. BREHL: The Department of Personnel
2 Administration by Edmund K. Deak, D-E-A-K, Brehl for
4 THE ARBITRATOR: Okay. We have marked for
5 identification, well, we have marked a number of joint
6 exhibits which I will briefly identify.
7 Joint Exhibit 1 is the applicable MOU between
8 the parties.
9 Joint 2 is the grievants' grievance dated
10 September 6, '02.
11 There are correspondences regarding the
12 grievance, Joint 3, September 9, 2002 letter on CB&M
14 Joint 4 is actually a handwritten note dated
15 September 27th on SCIF letterhead.
16 Joint 5 is an October 2nd letter on SCIF
17 letterhead with an attachment.
18 Joint 6 is an October 4th letter on CB&M
20 Joint 7 is a November 1st letter on SCIF
22 Joint 8 is a November 4th letter on CB&M
24 Joint 9 is a November 14th letter on Department
25 of Personnel Administration, DPA, letterhead.
1 Joint 10 is a December 27th letter on DPA
3 And Joint 11 is a January 2nd, 2003 letter on
4 CB&M letterhead.
5 So, Mr. Messing, have you got the proposed
6 issue here?
7 MR. MESSING: I do.
8 The proposed issue is as follows: First, has
9 the State Compensation Insurance Fund violated the
10 memorandum of understanding by failing to compensate
11 Mr. Grossman and Mr. Vargas at a higher rate during the
12 grievance period for working out of class as
13 attorney IIIs? And if so, number 2, what is the remedy?
14 THE ARBITRATOR: Okay. Mr. Brehl, is that
16 MR. BREHL: That's fine.
17 THE ARBITRATOR: Let me ask for stipulations
19 Is it stipulated that the prior steps of the
20 grievance procedure have been complied with or waived
21 and the matter is properly in arbitration?
22 MR. MESSING: Yes.
23 MR. BREHL: Yes, it is.
24 THE ARBITRATOR: Finally, in the event a remedy
25 is ordered, is it stipulated that I should retain
1 jurisdiction with respect to implementation?
2 MR. MESSING: Yes.
3 MR. BREHL: Yes.
4 THE ARBITRATOR: Then we're going to have
5 opening statements.
6 So Mr. Messing, would you proceed.
7 MR. MESSING: Thank you.
8 Going to be brief. This is a basic
9 out-of-class claim. As you know, undoubtedly, an
10 out-of-class claim deals with a fundamental and vested
11 right, which was why you have the authority to order
12 back pay when out-of-class work has been performed.
13 That notion was firmly established in 1998 in Dominey
14 versus DPA 205 Cal. App. 3d 729 at pages 742 to 743.
15 To let you know what this case is about,
16 briefly, the State has several different levels of
17 classifications for state attorneys. Staff counsel
18 range from A to D level, A being the lowest and D the
19 highest. And above the D level there are what are
20 called specialist IIIs, attorney IIIs or
21 specialist IIIs. The State Personnel Board has
22 established job descriptions for each of these
24 Grievants, Glen Grossman and Jorge Vargas, were
25 employed by SCIF as staff counsel, range D attorneys,
1 during the grievance period. Mr. Vargas continues to
2 work as a range D attorney, while Mr. Grossman was
3 promoted to specialist.
4 The evidence will show that Mr. Grossman and
5 Mr. Vargas while working as a range D attorney performed
6 the duties of specialist, and have been required to
7 utilize a higher level of expertise than a range D
8 attorney on a consistent basis. SCIF has described its
9 own job descriptions for range D attorney and specialist
10 which do not comport with the State Personnel Board job
11 descriptions, but which are very helpful to us. We will
12 argue that the SCIF job descriptions are fundamentally
13 different from the SPB definition and are therefore
14 invalid and cannot be considered the standard in this
15 case. However, the SCIF job descriptions are evidence
16 that the range D attorneys were performing as
17 specialists and assigned the work of specialist under
18 the SPB definition.
19 We will show, regardless of the job description
20 considered, that Mr. Grossman and Mr. Vargas were
21 actually working at a higher level than that of staff
22 counsel range D attorneys on a consistent basis. The
23 SCIF job descriptions demonstrate that SCIF expected the
24 employees in the two positions to perform the same
25 duties. The SPB job descriptions differentiate between
1 the two descriptions in two fundamental ways. First,
2 range D attorneys are only supposed to perform work of
3 average difficulty, and, second, they do not act as lead
4 attorneys over others.
5 It is evident that Mr. Grossman and Mr. Vargas
6 as range D attorneys were both assigned to handle cases
7 that were sensitive and complex in nature and acted as
8 lead attorneys over other attorneys on various
9 occasions. Mr. Grossman and Mr. Vargas engaged in these
10 higher level job duties more than 50 percent of their
11 time within 2-week periods consistently throughout the
12 grievance period.
13 If you look at page 93 of the MOU, so we can
14 establish the portions of the contract at issue --
15 THE ARBITRATOR: 93?
16 MR. MESSING: Page 93. If you look at B-1 at
17 the top of the page. It says: An employee is working
18 "out of class" when he/she spends a majority (i.e., more
19 than 50 percent) of his/her time over the course of at
20 least two consecutive work weeks performing duties and
21 responsibilities associated with a higher level existing
22 classification that do not overlap with the
23 classification in which said employee holds employment.
24 Duties -- and then the second paragraph, and I
25 want you to pay attention to that, please: Duties that
1 are appropriately assigned to incumbents in the
2 employee's current classification are not out of class.
3 Duties appropriately assigned are based on the
4 definition and typical tasks enumerated in the
5 California State Personnel Board specification.
6 Now, SCIF may argue that range D attorneys are
7 expected to work on some complex cases, but the bulk of
8 the cases are handled by specialists. This is not
9 consistent with the SPB job description. In practice,
10 SCIF's practice muddies the difference between the two
11 positions so that it can have less highly paid
12 specialists by requiring them to do the same work as
13 range D attorneys. Such work under the MOU has to be
14 compensated at the higher rate. So what you'll find is
15 from the SCIF descriptions, job descriptions that will
16 be presented, that the actual job duties performed by
17 Grossman and Vargas show that they were required to work
18 out of their job classification because they were
19 required to work on complex and sensitive cases in the
20 office, and they were required to act as lead attorneys
21 over others, and they did this, of course, without
23 In fact, what you'll hear is that the State
24 Compensation Insurance Fund definition for a senior
25 staff counsel, that's the D level, that definition
1 virtually tracks the State Personnel Board definition
2 for a specialist. It says under -- and you'll receive
3 this into evidence as the case progresses. It says: To
4 act as the lead attorney in the day-to-day operation
5 within the assigned function, and then also talks about,
6 "this incumbent will exercise lead responsibility in
7 assisting an attorney-in-charge in training new
8 attorneys and in handling the most complex and most
9 difficult legal problems and issues in the department."
10 So SCIF has been a bit confused over the years.
11 Under section 15.3, the -- and you can turn to
12 page 94 sub D sub 4, that section requires out-of-class
13 work that has not been specifically assigned to an
14 individual to be compensated for a one-year period,
15 one-year calendar period prior to the filing of the
16 grievance. Do you see that section?
17 THE ARBITRATOR: I do.
18 MR. MESSING: Okay. And finally, SCIF may
19 attempt to argue that cases that Mr. Grossman and Vargas
20 were assigned do not constitute complex and sensitive
21 cases. Well, if that's the case, it violated its own
22 job description. But in any event, SCIF has not
23 previously defined what sensitive and complex cases are
24 and cannot now set up a description to avoid the
25 violations of the MOU and avoid paying these individuals
1 for the work that they have been doing over the past
2 several years.
3 So the evidence will show that Mr. Vargas and
4 Mr. Grossman were performing the same job duties on a
5 regular basis as specialists without added compensation.
6 The appropriate remedy in the case, as I said, one-year
7 compensation prior to the date of the filing of the
8 grievance through Mr. Grossman's promotion in his case
9 and through the present for Mr. Vargas. That is with
10 any appropriate interest, of course.
11 And that is the basic case in a nutshell.
12 THE ARBITRATOR: Okay. Fine.
13 Mr. Brehl, do you want to respond at this
15 MR. BREHL: No. We'll reserve.
16 THE ARBITRATOR: Okay. Fine, then we're going
17 to -- Mr. Messing has indicated he's calling a witness
18 out of order.
19 MR. MESSING: Right. And I want to apologize
20 to the arbitrator that this witness's testimony would
21 make more sense if it were taken in a different order,
22 but I would ask you to bear with us. It is germane to
23 the case, but this is a very busy individual, and we
24 need to get him back to his office.
25 THE ARBITRATOR: Okay. Off the record.
1 (Off the record.)
2 THE ARBITRATOR: Let's go back on the record.
3 Could you state your name, please, sir.
4 THE WITNESS: I'm N. Michael Rucka.
5 THE ARBITRATOR: Spell your last name, please.
6 THE WITNESS: R-U-C-K-A.
7 THE ARBITRATOR: Okay. I need to swear you in.
8 Could you raise your right hand, please.
9 N. MICHAEL RUCKA
10 having been duly sworn, testified as follows:
11 DIRECT EXAMINATION BY MR. MESSING
12 Q. Would you identify your place of employment,
14 A. 245 West Laurel Drive, Salinas, California
16 Q. And what do you do for a living, sir?
17 A. I am an attorney.
18 Q. What kind of law do you practice?
19 A. Workers' compensation and Social Security.
20 Q. How long have you been practicing in those
21 areas, sir?
22 A. Almost 38 years.
23 Q. 38 years. You don't look that old.
24 A. Thank you. Thank you. I started when I was
25 very young.
1 Q. Has your practice generally been in this
2 geographic area?
3 A. Yes, since 1969.
4 Q. Okay. Can you just briefly describe your
5 office in terms of how many lawyers you have,
6 paralegals, et cetera?
7 A. Well, I have 4 offices, but I'll just describe
8 the one that I principally practice in, that's the
9 Salinas office.
10 MR. BREHL: Excuse me, just for all of our
11 sake, the relevant time period would actually be, I
12 guess, September 6th, 2002, as of that time.
13 MR. MESSING: I think the present is perfectly
14 adequate. If you want to cross-examine him and find out
15 if there has been any change.
16 BY MR. MESSING:
17 Q. Can you just tell me, roughly, the structure of
18 the current office that you practice in? That's the one
19 at 245 West Laurel?
20 A. Correct. Basically there has been no change in
21 the last 5 years.
22 Q. Okay.
23 A. I have 2 legal assistants who report directly
24 to me. There are a total of 6, 7 lawyers who practice
25 out of my office. I have at various times supervisorial
1 responsibility for at least one other doing workers'
2 compensation. Do you want the number?
3 Q. No, that's fine.
4 When you say my office, are you the principal?
5 Are you an owner and partner?
6 A. I am.
7 Q. You are the owner?
8 A. I am a partner and shareholder in the practice.
9 Q. Okay. The other offices are affiliated. You
10 said there were 3 other offices?
11 A. Correct.
12 Q. Those are affiliated with your office?
13 A. Yes, they are all part of the same law
15 Q. Of which you are a partner and a shareholder?
16 A. Correct.
17 Q. And how many lawyers, roughly, practice in
18 those offices?
19 A. 5 in the other offices.
20 Q. Okay. From time to time do you have occasion
21 to supervise their work or determine what cases may be
22 coming in and out of the office?
23 A. From time to time, yes.
24 Q. Thank you.
25 Now, that sounds like you may be the largest
1 office in this area for practicing on the applicant's
2 side. Is that true?
3 A. I would say that's true, at least that's what
4 we like to tell people.
5 Q. Okay. And you know Mr. Grossman and
6 Mr. Vargas?
7 A. I do.
8 Q. In what capacity?
9 A. As attorneys.
10 Q. And you know that they work for SCIF?
11 A. That's true.
12 MR. MESSING: Okay. And for the record, I
13 think, Mr. Arbitrator, that we could refer to SCIF
14 throughout these proceedings without having a problem.
15 THE ARBITRATOR: That's certainly fine with me.
16 BY MR. MESSING:
17 Q. Okay. You have had occasion to work also with
18 Mr. Pickering and Mr. Berry --
19 A. Mr. Berry Cannon.
20 Q. -- Berry Cannon?
21 A. Yes, right.
22 Q. Berry Cannon. Strange name.
23 In those cases you were adversaries, you were
24 the adversary to Mr. Grossman, Mr. Vargas, Mr. Pickering
25 and Mr. Cannon?
1 A. Correct.
2 Q. Do you know what those individuals' titles are
3 or were when you were dealing with them and where they
4 existed in the hierarchy of SCIF?
5 A. No.
6 Q. How many -- could you give me some kind of idea
7 of how many cases you might have had with each of those
8 attorneys, just a ballpark?
9 A. Well, I'll extrapolate to that, because I have
10 roughly 20 to 25 appearances a week at the appeals board
11 of which probably 45 to 50 percent involve the State
12 Compensation Insurance Fund. And there are now more
13 attorneys at the State Fund, but that's only been a
14 recent change. Over the last couple of years, excluding
15 this year, I would say that the workers' compensation
16 cases that the Fund had were pretty evenly distributed
17 between Mr. Vargas, Mr. Cannon and Mr. Pickering. Less
18 with Mr. Grossman because for some time, because I had
19 represented Mr. Grossman's wife a number of years ago,
20 no cases were handled by Mr. Grossman with me. And I
21 have handled some cases with Mr. Estrada as well.
22 Q. Okay. So you said that 20 to 25 appearances
23 per week?
24 A. Correct.
25 Q. And most of the time it's one of those
1 attorneys that we listed appearing; is that right?
2 A. Well, again by extrapolation, if the State Fund
3 has approximately 40 percent of the market share, which
4 I think it does, then it would be 40 percent, just
5 roughly, of the 25 appearances involved with State
6 Compensation Insurance Fund. It may vary a little bit
7 from week to week, but that's an approximation.
8 Q. Okay. I asked you earlier about whether you
9 knew where these individuals were in the hierarchy of
10 SCIF. Is there anything about the work that you
11 observed them performing that led you to form an opinion
12 about where each of those attorneys were in the
13 hierarchy of SCIF?
14 A. No. The nature of the work that -- the nature
15 of the cases that they have been involved in with me,
16 all of them have been similar. I could not draw a
17 distinction with regards the subject matter of the case.
18 Q. Now, do you recollect for each of the
19 individuals, I'll go one by one, when you might have
20 started working on cases with them? Start with
22 A. More than 10 years ago, I know.
23 Q. 10 plus. Okay.
24 How about Mr. Vargas?
25 A. I would say the same.
1 Q. Mr. Pickering?
2 A. Longer.
3 Q. Okay. Mr. Cannon?
4 A. Well, he's been gone a number of years now.
5 But I would say maybe 5 to 7 years with him.
6 Q. And can you give any kind of approximation of
7 the number of cases you have had with Mr. Grossman, just
8 a ballpark?
9 A. Well, before I represented his wife I -- he was
10 in the mix as -- I just assumed cases were distributed
11 on a rotational basis, because I could never, you know,
12 until I got the answer or the notice of representation,
13 I wouldn't know who was going to handle it. And he
14 would be in the same average mix.
15 Q. Okay. And then for awhile you said that that
16 changed because you represented his wife?
17 A. Correct.
18 Q. Okay. Have you started finding him as an
19 adversary lately, though?
20 A. In the last few -- actually the last year or so
21 on some cases, not anywhere near as many as the other
22 SCIF attorneys.
23 Q. Okay. But is that because he's only now in the
24 rotation that you described and so he doesn't have the
25 bulk number of cases that have built up, but does he
1 appear to be in the same rotation?
2 A. Right. And he has always appeared on other
3 cases involving my office even during the period of time
4 when he was not on cases that I was individually
6 Q. Okay. I see. And you maintain familiarity
7 with the types of cases that were going through your
8 office that were handled by other lawyers?
9 A. To a degree.
10 Q. Can you give examples of the sensitive and
11 complex cases that arise when you're working with -- or
12 working on a case against SCIF?
13 A. Well, there are generically cases that have
14 injury at issue.
15 Q. Okay.
16 A. And the question there is whether the injury
17 arose out of and occurred in the course of employment.
18 There are -- some of those issues in those cases are
19 factual issues as to whether the event occurred. Other
20 of those same type cases are medical issues as to
21 whether the condition from which the individual is
22 suffering is consequential to the work activities,
23 thereby being able to conclude that it arose out of and
24 occurred in the course of employment.
25 Q. Okay.
1 A. Then you have a separate whole set of cases in
2 which the, for lack of a better way of describing it,
3 the issue is not "what if?" But "how much?" So you're
4 talking about what is the length of the period of
5 entitlement, temporary disability within which may be
6 the question of earnings, within which the question of
7 which applicable law might apply, because there have
8 been changes in earnings questions.
9 And then you have the separate subset of the
10 how much issue which is what is the permanent
11 disability. And, again, you come back to medical
12 questions there and medical issues. So those primarily
13 are the subject matters. On, fortunately, far fewer
14 occasions you have death cases in which all of those
15 issues may come to the fore. But in addition you have
16 questions of dependency, questions of entitlement to
17 burial expenses and sometimes entitlement between
18 conflicting defendants as to what their right of
19 entitlement is.
20 Q. Okay. Let me ask you this, in terms of looking
21 at sensitive or complex cases, are psychological injury
22 cases considered to be more sensitive or complex?
23 A. Well, they certainly are more complex. The
24 term sensitive is, I think like beauty, in the eyes of
25 the beholder. The problem is that most offices don't
1 handle psychiatric cases. My office does. And I handle
2 a lot of them.
3 Q. Okay. So they're more complex than the average
5 A. They're more complex than the average case.
6 And they make the average case that has a psychiatric
7 component in it far more complex.
8 Q. Okay. And why is that?
9 A. Well, because the -- first of all, you have to
10 go back to understanding the changes in the laws. Since
11 1989 the level of proof, the burden of proof, has
12 gradually changed as to what is compensable from a
13 psychiatric standpoint. So determining what is
14 compensable becomes different than whether it is
15 industrial, because you can have the situation where
16 someone has sustained a psychiatric disability that
17 arose out of and occurred in the course of employment
18 whereby the conclusion before 1989 would be that that
19 was an industrial injury that was compensable. Now,
20 given the circumstances, it could be found to be an
21 industrial injury that is not compensable because it
22 didn't meet some of the specials.
23 Q. What about apportionment cases, do those tend
24 to be complex or sensitive?
25 A. Yes, yes.
1 Q. Why is that?
2 A. Well, because, again, you have multiple
3 competing forces. First of all, the statutes, there is
4 one set of statutes that says that the natural
5 progression of a condition is apportionable. And the
6 second says that if you have preexisting disability, you
7 can apportion to it. So the issue becomes what you can
8 prove as to whether from a defense standpoint -- from my
9 standpoint you don't want them to prove any of it. But
10 from a defense standpoint the issue becomes what can be
11 proved and how do you go about doing that.
12 Q. And so in those cases a SCIF attorney would be
13 trying to lay off liability to other employers and
14 attributing injuries --
15 A. Correct.
16 Q. -- to previous employers?
17 A. Correct. In addition, in a specific injury
18 case where SCIF is the only carrier, the desire and need
19 is to find apportionment to either an earlier injury or
20 to pathology that is naturally progressing. But in
21 those cases in which there are multiple parties, which
22 oftentimes occurs, the problem becomes greater because
23 then you're, from my standpoint, representing the
24 injured worker. I'm not particularly concerned as to
25 which carrier pays, but from their standpoint it becomes
1 very important for them to be able to establish that
2 some other carrier is responsible, and that becomes even
3 more so now with the whole issue of CIGA.
4 Q. It's kind of like a cross-complaint situation
5 in litigation?
6 A. Exactly.
7 Q. So they become a moving party against another
9 A. Right. But in workers' compensation oftentimes
10 the moving papers don't show as much as what happens in
11 terms of figuring out when to go to an agreed medical
12 examiner and who that examiner is going to be and why
13 you would use that, and those are not quite in the realm
14 of pure legal determinants. I mean you've got the
15 principle that you want to establish, but you've got a
16 factual issue that you want to try and deal with to try
17 and fashion it to the way that you want.
18 Q. By the way, in an apportionment case that you
19 have been testifying to, you don't necessarily know that
20 a case is an apportionment case when you first start; is
21 that right?
22 A. No, that's correct.
23 Q. So if a SCIF attorney is assigned a case, which
24 may look like there is only one party on the other side,
25 you know, during the course of that case it may become
1 complex by other parties popping up?
2 A. Right. And/or by their own discovery through
3 deposition or through the inquiry of the -- of their own
4 medical examiner.
5 Q. What is a hundred-percent-disability case?
6 A. By definition it means that there is inability
7 to engage in the ability to work in the open labor
9 Q. Is that considered to be a complex case?
10 A. I would think that it is, unless you're talking
11 about a quadriplegic who becomes a quadriplegic as a
12 result of a specific injury, yeah, they're very
14 Q. What makes them difficult?
15 A. Well, again, there is lots of reasons that go
16 into it, but simply stated, the dollar difference
17 between ninety-nine and three-quarters percent and a
18 hundred percent is vast. It can be as much as a half a
19 million dollars depending on the age of the individual.
20 Because at the hundred percent level, the injured
21 employee receives temporary disability for life at the
22 rate that they were receiving at time of injury. So if
23 you have somebody who is young, and let's take the
24 current rate today, which is 602 a week, if they're
25 entitled to maximum, well, if they have a 40-year life
1 expectancy, 602 times 50, is, what, new math for me --
2 Q. 30,000?
3 THE ARBITRATOR: $30,000.
4 THE WITNESS: It's about $31,000 a year times
5 40. What you have got in terms of dollars. If, on the
6 other hand, it's ninety-nine and three-quarters, then
7 you're looking at somebody who is going to get the
8 permanent disability rate, which I believe -- don't hold
9 me to it because I don't see them that often -- is, I
10 think, 260 a week for a finite number of years, roughly
11 speaking, 13. Thereafter, a small life pension, which
12 is probably about $130 a week after the 13 years have
14 So you can see that in the dollar exchange, for
15 the defense to keep it below a hundred percent even to
16 the point of ninety-nine and three-quarter percent,
17 there is a massive savings in dollars.
18 BY MR. MESSING:
19 Q. And so I would assume a massive battle over
20 that last quarter of a percent?
21 A. Right.
22 Q. Okay. Now, I gather in your lengthy career you
23 have handled cases of first impression?
24 A. Yes.
25 Q. I would imagine they don't happen often,
1 though, or do they?
2 A. Well, they happened more often when I was
3 younger, maybe it had to do with an energy level.
4 Q. Are those generally considered to be complex?
5 A. Yes.
6 Q. And why is that?
7 A. Well, you're making law out of whole cloth.
8 You're extrapolating from what you know to what you hope
9 the Court will know.
10 Q. Okay. Can you just give us an example of a
11 case of first impression you have handled recently that
12 would illustrate the complexity of it?
13 MR. BREHL: I think I'll object to the
14 relevance of that unless it happens to be a case that
15 was handled with these 2 individuals.
16 THE ARBITRATOR: I understand the distinction,
17 but I'll allow it just for illustrative purposes, and I
18 understand. I mean a case of first impression it
19 strikes me, there is a tremendous range in there in
20 terms of what the complexity might be.
21 BY MR. MESSING:
22 Q. Yeah, why don't you go ahead and answer.
23 A. Well, the last case of first impression that
24 comes to my mind that I had actually with the State Fund
25 was a -- that actually went all the way through the
1 courts was one that I had with, I'm not sure who
2 finished it at this point, but Berry Cannon had it for
3 some time. And that was a death case, the name of which
4 is now escaping me.
5 MR. ESTRADA: Laird Drake?
6 THE WITNESS: Laird Drake. Thank you very
7 much. And that case was in litigation for 9 years.
8 BY MR. MESSING:
9 Q. Well, now, I mentioned before the test of
10 sensitive or complex in terms of complexity, I would
11 assume that cases of first impression end up in the
12 actual court system as opposed to just before WCAB or
13 what have you, right?
14 A. Right. Okay, what happens realistically is
15 where you have cases of first impression and either side
16 is afraid of the consequences of going to trial, you
17 settle them. So there are -- I mean there are a number
18 of those kinds of cases where the issue, whether it's
19 medical or the application of law, I mean I recently had
20 a smoke inhalation case and the question of whether the
21 cancer that resulted from it was entitled to the
22 presumption that a firefighter would have. Another case
23 not too long ago that Mr. Vargas was involved in where
24 the issue was asbestos exposure, and to the extent that
25 you can, you try and work out a settlement that makes
1 everybody a little bit unhappy but nobody terribly
3 Q. Okay. But you may have to litigate -- well,
4 strike that.
5 Most of your cases are handled before the WCAB,
7 A. Right, all the workers' compensation cases are
8 all handled before the WCAB.
9 Q. But when there is a case of first impression
10 that case may end up being litigated through the court
12 A. Right, by virtue of the process of
13 reconsideration, and from there a writ of review, and
14 from there to the Supreme Court.
15 Q. Okay. And I gather you don't always know the
16 first day when the case comes through the door whether
17 it's a case of first impression?
18 A. That's usually the case, though once in awhile
19 you know that when the case walks through the door that
20 it's going to be a case of first impression.
21 Q. And when a case has been assigned to a SCIF
22 lawyer when you have been an adversary, those cases go
23 through the court system, is it typically the same
24 attorney who handled the case before the board that
25 continues to handle it through the court system?
1 A. No. I guess as a policy, I don't know SCIF's
2 process, except by observation, once it finishes the
3 reconsideration stage where the commissioners who are
4 the equivalent of the first level of appellate review
5 have made their decision and there is either a further
6 review sought by myself on behalf of my client or by the
7 employer on behalf of SCIF, SCIF always sends the file
8 to an attorney who has previously not dealt with the
9 file, and that attorney is in San Francisco. That's my
10 experience, in any event.
11 Q. Thank you.
12 Would you explain what a serious and willful
13 case is?
14 A. Serious and willful misconduct is a provision
15 of California law which allows the injured worker to
16 seek additional compensation for which no insurance can
17 be provided. And if you can show -- it's almost -- the
18 burden is almost to the point that you have to show on
19 behalf of the worker that the employer intended the
20 result that occurred. Gross negligence is often said to
21 be insufficient. It has to be something greater than
22 gross negligence. It has to be a knowledge that the
23 occurrence of the event is more probably going to happen
24 to the individual to whom it happened.
25 The classic example, which is the easiest to
1 understand, is the removal of a guard on a punch press.
2 But there are others. Another simple example of that is
3 the employer who has had shoring in a ditch and then has
4 the shoring removed and then sends an employee into the
5 ditch to work and the ditch caves in for absence of the
6 shoring. That would be a clear-cut serious and willful
7 claim. But there are a lot of them which are in sort of
8 the gray area and they're filed because the extent of
9 the injury at the time that you see the applicant, the
10 injured worker, requires that they be filed because you
11 only have as applicant's counsel one year from the date
12 of injury within which to file that claim and it has to
13 be filed with some degree of specificity. So you do it
14 as quickly as you can, and then it is defended from the
15 standpoint of the employer based upon the pleadings that
16 the applicant has filed.
17 Q. Are those typically considered complex cases?
18 A. Yes.
19 Q. What makes them complex?
20 A. Well, they're complex because you've got the
21 whole gamut of discovery problems that you normally
22 don't see in workers' compensation. But you -- you
23 know, from my standpoint as the advocate for the injured
24 worker, it's getting an investigation. It's trying to
25 understand if it's a mechanical defect what it is that
1 caused that mechanical defect, and was that something
2 that happened before. And I presume that from the
3 defense standpoint -- and I have to only presume that
4 because I haven't done that work -- that the process is
5 very similar from their standpoint.
6 Q. Okay. Now, I think we're fairly familiar with
7 132a cases. Those are discrimination or retaliation
9 A. Correct.
10 Q. Are those generally considered to be complex?
11 A. Complex, yes. Difficult factually. And made
12 more so because of the problem of psychiatric cases
13 because what you see is that you have to from the
14 applicant's standpoint, worker's standpoint, you would
15 have to be able to separate the whole issue of just --
16 just tease it out so that you're looking at what is
17 retaliatory and against public policy as opposed to what
18 is a good faith personnel action.
19 Q. And serious and willful and 132a cases are
20 generally filed initially with those allegations; is
21 that right?
22 A. Correct. With regards to both of them, you
23 have one year from the date of the occurrence as opposed
24 to a regular workers' compensation application which can
25 be filed up to 5 years if the injury is not in dispute
1 and there has been some benefit provided.
2 Q. Wouldn't it be true that some cases become --
3 that are initially filed as just regular injury cases
4 later become 132a cases --
5 A. Yes.
6 Q. -- because the employee is retaliated against
7 for filing that initial claim; is that right?
8 A. Right. The statute there is one year after the
10 Q. In those cases in your experience does the
11 attorney at SCIF who is handling the original case tend
12 to be the same attorney who is handling the serious, I'm
13 sorry, the 132a claim when that gets filed?
14 A. Yes.
15 Q. Okay. And of course nobody knew at the initial
16 filing that this was going to become a 132a case?
17 A. Correct.
18 Q. All right. Department of Corrections cases,
19 are those considered to be complex or difficult?
20 A. Some are very complex and very difficult.
21 Q. Why is that?
22 A. Well, part of it has to do with just the
23 personality of the Department of Corrections. I think
24 in some ways they should be easier because you have
25 presumptions that exist in the law that favor
1 correctional officers for heart and for hepatitis and
2 some other things. But they're not -- they're difficult
3 in the heart cases because the battle -- indeed
4 Mr. Vargas and I yesterday had a case of that kind where
5 the issue was the application of whether the employee
6 was entitled to the application of the presumption for
7 heart, number 1, and, number 2, whether the employee
8 actually had heart trouble as that term is defined by
9 the courts.
10 And the best way to describe this in terms of
11 the difficulty is not so much how heavy the case is in
12 terms of lifting but how you put the pieces together and
13 where the line of demarcation is. And the line is not
14 always clear. And from the defendant's standpoint, they
15 want to, in those situations, obscure the line as much
16 as they can in the hopes that the judge will find the
17 line less clear and be more on their side. And there
18 are not always bright lines.
19 I don't know if I'm making myself plain, but
20 they are factually driven. And the complexity, again
21 because of the monies, in the Department of Corrections
22 cases if you have somebody who, as advocate for the
23 worker, I can establish is entitled to a finding of fact
24 that an industrial injury occurred, and establish that
25 there is sufficient disability to allow he or she to
1 then apply for a PERS disability retirement, all of a
2 sudden, again, we're looking at a case that has
3 significant magnitude beyond just the occurrence of the
4 injury and, you know, 15 or $20,000 in indemnity. And
5 these are concerns that drive -- that drive the defense
6 of the case, because the Department of Corrections ends
7 up having to pay an industrial disability leave, which
8 is full pay for the first 30 days and two-thirds pay for
9 the next 11 months. So they're high value cases. And
10 so in that sense they become -- the urge to make them
11 complex is apparent.
12 Q. They become more contentious, is that the idea?
13 A. I don't like to use the term "contentious,"
14 because there is a lot of comedy at this particular
15 appeals board. People deal with one another I think
16 with a lot of courtesy and cooperation and it's rarely
17 are there ever shouting matches.
18 Q. Okay. Just a couple more and then we'll move
19 on. You do parks and recreation cases?
20 A. I have in the past, not so many of them, but I
22 Q. Do they tend to be more complex or difficult?
23 A. You know, the experience that I have had with
24 them would suggest that they are pretty much the same in
25 the category as the Caltrans cases. So I would judge
1 them by that, because I haven't had that many park and
2 rec cases, probably less than maybe 8 or 10 in all the
3 years. Most of them go to my partner. But I do a lot
4 of Caltrans cases, and the park and rec cases I have had
5 are every bit as difficult as the Caltrans cases.
6 Q. So you're saying Caltrans cases tend to be
8 A. Yes.
9 Q. Why is that?
10 A. Again, I think we're dealing with the
11 personality of the agency in part, and we're also
12 dealing with a wide variety of kinds of injuries.
13 Q. All right. Are there any other cases that pop
14 to mind or types of cases that tend to be very complex
15 or difficult that we haven't touched on?
16 A. No. CDF. California Department of Forestry.
17 Q. For the same types of reason that you described
18 for Corrections?
19 A. Exactly, exactly, exactly.
20 Q. Okay.
21 A. And then the other problems are the problems
22 that you see -- and they're actually becoming more
23 prevalent -- in the CIGA cases where the State Fund may
24 be one of the last 2 carriers left standing at least for
25 this year in California. You know, CIGA is the
1 California Insurance Guarantee Association.
2 Q. Um-hum.
3 A. And with the unfortunate operating law that
4 occurred that was a rush to the bottom and a lot of
5 carriers wrote business and they didn't have adequate
6 reserves, and there is a quirk in the law that allows
7 CIGA to escape if they can lay the liability in a
8 cumulative injury case, if they can show that there is
9 another insurance carrier that has coverage during the
10 same period. So those cases are becoming more complex
11 now. And the State Fund is a larger target for those
12 cases. And as a result the State Fund's role in the
13 case is becoming more significant.
14 Q. Okay. Let me ask you this, can you give us
15 some examples of some complex cases that you tried
16 against Mr. Grossman over the last, let's say, 3 years
17 and explain why they were complex, if you can remember
18 any with specificity?
19 MR. BREHL: I'm going to object because I think
20 it needs to be narrowed. The last 3 years may fit the
21 same criteria, I don't know, but we need to really
22 concern ourselves only from September of 2001, which is
23 2 years ago.
24 THE ARBITRATOR: That should be about 2 years.
25 MR. MESSING: All right. Let's talk about the
1 last 2 years.
2 THE WITNESS: You know, I think that I can't
3 for the simple reason I don't think he was handling
4 cases with me during that period. He was handling cases
5 with my office, but not with me.
6 BY MR. MESSING:
7 Q. Okay.
8 A. So I couldn't tell from you a firsthand
10 Q. Let me ask you this, how about Mr. Vargas?
11 A. Well, as I said, we had the case yesterday
12 which was complex, intricate, in which I had filed a bad
13 faith petition for the failure of the department to act
15 Q. Let me try and put it this way, do you believe
16 that there is any difference in the difficulty or the
17 complexity of the cases that you have handled against
18 Grossman and Vargas as compared to Pickering and Cannon
19 over the years?
20 A. No.
21 Q. Do you recollect over the years cases that you
22 have had against Grossman or Vargas that were more
23 complex or sensitive than cases you have handled against
24 Pickering and Cannon?
25 A. No. I think that they're of equal weight. To
1 my eye, the quality of lawyering has been on par for all
2 of them.
3 Q. Okay.
4 A. You know, there are some cases that seem to
5 flow with more facility and ease, but that's not because
6 they weren't complex when they started.
7 Q. Okay. And I think we've talked about cases
8 that may begin simple and become complex. I suppose
9 they can begin complex and become simple; is that right?
10 A. The answer to that in a word is no, because
11 they become simple -- if they start off complex they
12 became simple because of lawyering that went on down the
13 line --
14 Q. Okay.
15 A. -- rather than the other way around.
16 Again, we're dealing mostly with, in those
17 kinds of situations, with cases that are factually
18 driven. The medical changes and the medical picture
19 allows the case that still may be complex, but you find
20 a simple solution because you -- the game is no longer
21 worth the candle if you have a case that you thought was
22 going to be a $25,000 case and now all of sudden it
23 looks like 1500. All of the other issues and
24 complexities suddenly disappear and you find a way to
25 bury that case very quickly.
1 Q. But you did testify that there are cases that
2 become more difficult or complex after filing like the
3 132a cases?
4 A. Right.
5 Q. Are there other examples of how cases which may
6 appear to be simple at the outset become more complex
7 that you can talk about?
8 A. Yeah. The problem with medical, you start off
9 with a simple back case and the case goes to hell from
10 there, either because the issue was fought for too long,
11 and by the time the person gets to surgery the available
12 remedy is no longer as good as it was, had it been
13 offered at the beginning, or the person in the interim
14 develops diabetes or maybe because of the injury
15 develops diabetes and the issue becomes is the diabetes
16 industrial related. I have a case like that with
17 Mr. Vargas right now where if I prevail in showing the
18 diabetes is there, the case is a hundred percent case.
19 Mr. Vargas's job is to stop that.
20 Q. Okay. You haven't noticed in cases where they
21 start simple and become complex that they get
22 transferred to some other lawyer?
23 A. No.
24 Q. Okay.
25 A. The only time that I have ever seen cases
1 transferred, it's only -- normally only for the day
2 because there is a conflict and somebody else makes an
3 appearance, and that's usually at a mandatory settlement
5 Q. Can you explain just -- I have just a couple
6 more things, so I appreciate your time. But the
7 complexity of rating disabilities, can you tell us a
8 little bit about that.
9 A. Okay. As long as it's only a little bit you
10 want from me, because by definition it is complex.
11 The state uses a rating system which was
12 actually historically taken from the Russian Revolution.
13 It was adopted from a 1905 disability schedule that the
14 Mensheviks attempted to pass in the Duma. California
15 adopted it in 1917 without a lot of change, actually.
16 Q. This is actually true?
17 A. That's true, yeah. And Ely Welsh, who was the
18 rating specialist for the state for 40 years, basically
19 made it into as intelligible a document as anything that
20 the Russians have ever written, which meant that it
21 probably isn't all that intelligible. But all kidding
22 aside, what it does is it attempts, and California is
23 unique in this regard, and the reason I can say that is
24 because I have a fair amount of experience in other
25 states as well, but California uses a rating prospect in
1 which you take the individual's age at the time of
2 injury, the occupation that they had at time of injury,
3 and you couple that with the nature of the injury, and
4 then you modify it to determine what the approximate
5 loss of work ability is to the open labor market. So
6 when you have somebody who has a 40 percent permanent
7 disability rating, what you're basically saying is as a
8 result of this particular injury they have a -- an
9 approximately 40 percent loss of work ability in the
10 open labor market. And this is just -- it's an informal
11 and sort of expanding and contracting concept. But
12 because of that, the -- and because the rating schedule
13 has gone on to be highly refined with 14 different body
14 part categories, and it will depend on sometimes what
15 you actually give as the appellation for the injury.
16 For instance, a neck injury which produces disability to
17 the fingers may be worth more than a hand injury which
18 produces disability to the fingers. And so the -- what
19 you are attempting to do through the medical evidence is
20 to, for lack of a better way of describing it, groom the
21 case to allow for the most amount or the least amount of
22 disability being awarded to the particular individual,
23 using the parameters of the schedule. I don't know if I
24 explained it.
25 Q. Actually, that is somewhat clear. Let me ask
1 you this, are there some cases where the rating is more
2 difficult than in other cases?
3 A. Yeah. I mean oftentimes as skilled as I may
4 be, I won't trust my judgment to what the rating will be
5 and I'll request a disability evaluation, consultative
6 report, which gives me what the state's concept is of
7 what the level of that disability is.
8 That's different from a formal rating which is
9 derived by the judge giving a set of instructions to the
10 rater saying please rate for the following factors of
11 disability. And then if I don't like what the
12 instructions produce, I will move to cross-examine the
13 rater. If the defendant doesn't like what the
14 instructions produce, they move to cross-examine the
15 rater, or either one may move to strike the rating that
16 the judge has issued because it's a -- it's in the
17 nature of a preliminary ruling and you have the right to
18 contest it and point out where the judge is in error.
19 So to that extent you have this additional area
20 that you have to deal with, and that's assessing both
21 the medical evidence that you have, what the oral
22 testimony has been at trial and determining -- or trying
23 to persuade the judge to change the determination that
24 the judge has made.
25 Q. It seems to me that from what you're saying,
1 when you have difficult cases of rating that you're not
2 likely to know that on the day that the case is filed;
3 that's something that you're going to find out as the
4 case develops?
5 A. Correct. You oftentimes don't know that,
6 really, much before the point in time when you get to
7 the mandatory settlement conference.
8 Q. Okay. Do you remember a case called Jack Duffy
9 or James Lindsey, those cases?
10 MR. ESTRADA: Excuse me. The name of the case?
11 MR. MESSING: Jack Duffy or James Lindsey.
12 THE WITNESS: Duffy as I recall was a postpolio
13 case. That was extremely complex. The question there
14 was not whether he had polio, because he clearly did,
15 but what effect his work had in lighting up the prior
16 condition and causing greater disability.
17 James Lindsey I'm having a tough time. I
18 remember the name and I sort of remember the client, but
19 I don't remember the facts.
20 MR. GROSSMAN: We did a seminar --
21 MR. MESSING: No, no, no, you can't talk.
22 BY MR. MESSING:
23 Q. Regarding the Lindsey case, if I mentioned that
24 Fred Boyd was involved --
25 A. Right.
1 Q. -- does that refresh your recollection?
2 A. Yes, and Al Frank was the mediator.
3 Q. Was that a complex case?
4 A. That was not only complex, it was extremely
5 difficult from the standpoint it was psychiatric. It
6 was physical. My client was a Vietnam War Vet who had
7 significant difficulties, had returned to the open labor
8 market. He -- there was a Tarasoff warning given in
9 that case.
10 Q. Okay.
11 A. It was extremely difficult. Maybe that's why I
12 couldn't remember it to begin with.
13 Q. Were these some of the more complex cases you
14 have handled over the years, the Duffy and Lindsey
16 A. Certainly fitted in with the most complex, yes.
17 Q. Do you remember who was your opponent on the
18 Duffy case?
19 A. I believe the Duffy case was Mr. Grossman, and
20 I believe the same was true in the Lindsey case.
21 Q. The average case that you have handled with
22 Mr. Grossman and Mr. Vargas, could you characterize it
23 as simple or complex?
24 A. I think it's a mix. I mean some have been
25 simple and some have been complex.
1 From the standpoint of what happens in my
2 office, I generally end up with the more complex cases.
3 And that's not -- you know, there is a joke in the
4 office that I make the cases complex, because we don't
5 really screen them at the beginning. And there is no
6 way of knowing what's going to be a complex case when
7 you open it. But what happens, I suspect, is that for
8 one thing, I've got so many years of experience that I
9 see issues that a lot of people would not necessarily
10 pursue. And, you know, we hold seminars within the
11 office. We hope that the other lawyers in my office are
12 doing the same level of work or will at the same point
13 in time that I am. But one only can hope.
14 Q. I think you testified earlier you get on the
15 other side all of the attorneys that I mentioned in the
16 SCIF office?
17 A. Right. From my experience from the newest to
18 the oldest, I mean I don't know what the criteria is for
20 Q. Okay. Let me just, a couple of, really, few
21 more questions and I will be done.
22 Do you recall a Jane Barbatini case?
23 A. I do.
24 Q. And what was that about, and was that complex?
25 A. That was very complex, very complex. I'm
1 trying to remember. That was a number of years ago.
2 She was a Department of Corrections employee, I believe.
3 And I believe the question was whether or not she was
4 going to be entitled to a correctional officer
5 presumption, and I think Mr. Vargas was defense counsel
6 and I think I lost that case.
7 Q. Is there something called a Rodriguez
8 application? Do you know what that is?
9 A. Not by that name.
10 Q. In the Barbatini case did an adjuster testify?
11 A. Yes.
12 Q. Is that unusual?
13 A. Well, I wish it would happen less.
14 Q. Okay. All right. Let me just ask you this --
15 I think your testimony has been very helpful -- you were
16 subpoenaed to testify here today?
17 A. I was.
18 MR. MESSING: Okay. I have nothing further. I
19 think Mr. Brehl may wish to cross-examine you. Maybe he
21 Off the record.
22 (Off the record.)
23 THE ARBITRATOR: Cross-examination.
24 CROSS-EXAMINATION BY MR. BREHL
25 Q. Yes, could I ask, do you know what year would
1 be the last time that you filed a 132a that was
2 litigated by SCIF?
3 A. Well, I can't tell you when it was last
4 litigated. I filed a 132a recently. I mean I -- within
5 the last 60 or 90 days.
6 Q. Has that one been dealt with by either of these
7 attorneys at this point?
8 A. It hasn't been dealt with by anybody at this
10 Q. Prior to that -- we're concerned with a period
11 from September 2001 and on. Prior to that, do you think
12 the 132a's that you would have dealt with with SCIF were
13 prior to September of 2001, or do you know?
14 A. Well, let me answer it in this fashion:
15 Oftentimes a 132a is filed and it becomes a bargaining
16 chip in the resolution of a case. I don't think that in
17 the almost 38 years that I have been practicing I've
18 tried more than fifteen 132a cases, if that many. But
19 they're there and you develop them. And so to answer
20 your question, I can't tell you right now. I don't
21 think that in the last couple of years I have tried a
22 132a case.
23 Q. Do you think in the last 2 years you have used
24 a 132a for a bargaining chip in which you dealt with
25 either of these attorneys --
1 A. Yes.
2 Q. -- in resolving the case?
3 A. Yeah, I'm pretty sure of that. As I sit here
4 now, I couldn't tell you what the name of the case is.
5 You know, I handle -- my own caseload is somewhere in
6 the neighborhood of 450 clients on average, and I just
7 don't recall the names of the cases. I have a better
8 recollection for facts, actually, than I do for clients'
9 names, which is terrible, I guess.
10 Q. Okay. Are you aware of the policy of SCIF that
11 if a 132a is filed against a private employer that they
12 insure they, in fact, do not defend that case but send
13 it out?
14 A. Is that 132a or S & W? I get them confused. I
15 know that where I have had one or the other with SCIF
16 they have used outside counsel. So I can't tell you. I
17 could be confused and it could be that it's 132a and not
18 S & W.
19 THE ARBITRATOR: What's S & W?
20 THE WITNESS: Serious and willful misconduct,
21 Your Honor.
22 THE ARBITRATOR: Okay.
23 BY MR. BREHL:
24 Q. On the serious and willful cases, have you done
25 any serious and willful cases within the last 2 years?
1 A. You mean tried them --
2 Q. Yes.
3 A. -- as opposed to filed them?
4 Q. Tried them first.
5 A. No.
6 Q. How about filing them?
7 A. I'm reasonably certain that there have been,
8 but I can't tell you a hundred percent.
9 Q. Can you recall if any of those were dealt with
10 by either Mr. Vargas or Mr. Grossman?
11 A. No, not specifically.
12 Q. How about Mr. Pickering or Mr. Cannon?
13 A. Same answer. I couldn't tell you. I mean if I
14 didn't try it, they were part of the mix in the
15 settlement, and I just don't have any recollection.
16 Q. And I take it in this Lindsey case when you
17 were saying there was a Tarasoff warning involved, you
18 mean a Tarasoff warning with respect to a threat on the
19 life of somebody with the employer?
20 A. Yeah, that's correct. Well, the threat was
21 actually -- I think there was a question at one point as
22 to who the intended object of the Tarasoff was.
23 Q. Okay. And was that dealt with in some manner
24 by the SCIF attorney involved, Mr. Grossman?
25 A. Did he deal with the Tarasoff warning?
1 Q. Right.
2 A. Only to the extent that he was aware of it
3 because it was contained within a psychiatric report and
4 the whole question of how to deal with the client or a
5 defendant -- I'm sorry, an applicant by the defense in a
6 case in which the threat was significant, and at the
7 time it was given believed that it could have been
8 directed not only at, to my recollection, not only as
9 against the SCIF adjuster but also the SCIF attorney, if
10 I'm not mistaken, in the case.
11 Q. Okay.
12 A. And I will say that the Tarasoff warning was
13 subsequently removed by the treater. But there was a
14 period of time within the case that it was a significant
16 Q. All right. Significant, I take it, with
17 respect to the issue of whether the person that was
18 threatened should be notified so they can take their own
20 A. No. I think in this case they were notified,
21 because the report went to SCIF itself.
22 Q. I see.
23 A. But significant in the question of how you
24 continue to try and handle a case that you have someone
25 who is inordinately angry, potentially dangerous. As I
1 recall we ultimately settled that case somewhere in the
2 $200,000 range and were able to, I think, fundamentally
3 reach a fair settlement which not only closed the case
4 but did so in a way that I think insulated all of the
5 players within the proceedings.
6 Q. And that was Mr. Grossman that handled that
8 A. Yes.
9 Q. Now, let me ask you this, say over the last 2
10 years, assuming that 40 percent of your appearances are
11 SCIF matters, which I think is what you testified to --
12 A. Um-hum.
13 Q. -- what percentage of time with respect to
14 Mr. Grossman and Mr. Vargas in that mix was involved in
15 these what you term to be complex cases, if you know? I
16 mean are these unusual?
17 MR. MESSING: First of all, I'm going to
18 object. Mischaracterizes the witness's testimony. I
19 believe he testified 45 to 50 percent of the cases were
20 SCIF, not 40 percent.
21 THE ARBITRATOR: I think he said 40. That's
22 what I recall.
23 MR. BREHL: I think he said 40.
24 MR. MESSING: I noted 45 to 50 percent.
25 MR. BREHL: I'm pretty sure he said 40.
1 THE ARBITRATOR: I know he said there was a 40
2 percent market share that SCIF has.
3 MR. MESSING: That's a different matter.
4 MR. BREHL: I take it back. I have 20 to 25
5 appearances per week at WCAB, 45 to 50 percent involve
7 MR. MESSING: Thank you. I'll accept your
9 MR. BREHL: Then I have attorney at SCIF has 40
10 percent to 45 percent of 25 appearances.
11 BY MR. BREHL:
12 Q. Do you know if it was 40?
13 A. What I gave you was an approximation. I know
14 what my office has been reported to have, about 55
15 percent of market share. I don't believe that. But
16 that's what people have told me in the past. Of the
17 market, I think SCIF has 40 percent of the market share.
18 I think what I testified to was that for the most part I
19 see Mr. Vargas, Mr. Pickering -- in the corrections
20 cases that I almost exclusively see Mr. Vargas,
21 Mr. Pickering, and I see Ms. -- Caron, oh, God, I just
23 MR. ESTRADA: Mesa.
24 THE WITNESS: Mesa, thank you very much.
25 That's terrible, don't tell her I did that.
1 And in the past I've seen Mr. Grossman.
2 BY MR. BREHL:
3 Q. Okay. We're talking about the corrections
4 cases --
5 A. Yes.
6 Q. -- or other cases?
7 A. Yes.
8 Q. All right.
9 A. Corrections. You know, what happens in terms
10 of -- I may have a case in which there will be several
11 appearances. I mean several different defendants and
12 there will be an appearance by the Fund as well in that
14 I mean I just had one with Mr. Estrada, there
15 were 2 defendants. I just had one the other day that
16 there were 4 defendants in there. I just can't tell you
17 with any degree of precision. But I have a sense that
18 of the 20 to 25 appearances that I have on a weekly
19 basis, damn near half of them involve SCIF in some
20 fashion or another.
21 Q. Could it be possible that the complexity of
22 these cases also has to do with not SCIF but other
23 defendants when you have multi defendants?
24 A. I'm not sure I understand.
25 Q. Well, the particular issue that becomes complex
1 doesn't really involve SCIF or its attorneys, it
2 involves the other defendants when you have multiple
4 A. Well, in a sense that's true, because, I mean,
5 the other defendant brings in another element and that
6 element is usually trying to lay the burden off onto
8 Q. Um-hum.
9 A. And so the SCIF attorney deals with the cards
10 that are dealt in the particular case.
11 Is that what you're asking me?
12 Q. Yes.
13 A. Yeah.
14 Q. Okay.
15 A. I don't think -- and I think I already said
16 this, I don't think it's at all possible in most cases
17 to determine if the case is going to become complex
18 until certain factual turns and twists occur within the
20 Q. You also said that you had -- with regard to
21 Mr. Vargas, you had a case recently I think where you
22 had a bad faith petition that had been filed against the
23 Department alleging that the Department had failed to
24 handle the matter appropriately?
25 A. Correct.
1 Q. And that was complex because of that issue?
2 A. Among others, yeah.
3 Q. About how many types of cases of that
4 complexity have you had with Mr. Vargas over the last 2
5 years if you can tell us?
6 A. I would think that between 40 and 50 percent of
7 the cases that I have at the board are less than
9 Q. Okay.
10 A. If they're routine, the cases are dealt with at
11 the adjuster level. We resolve them over the phone and
12 they send me the stipulations, or they never even deal
13 with the attorney. Now, that's not true in all cases.
14 But in a lot of cases, you know, I'll settle, I'll call
15 the defendant or my assistant will call the defendant,
16 the adjuster, and pursuant to my set of instructions
17 they'll work out the parameters and the papers necessary
18 to settle the case or a particular issue will be dealt
19 with at that level.
20 So by my assessment I think that half of the
21 cases that I show up on at the board are complex cases
22 in and of themselves. Sometimes I'm there because I've
23 got -- there is a personality conflict between maybe
24 myself and the other attorney in terms of not being able
25 to get together to talk about a case and the board is a
1 convenient place to do it. By personality I don't mean
2 we have adverse relationships, but it's just been a
3 timing factor. But I think half of the cases require
4 the board's aid to resolve. And I consider those to be
5 complex. If you have to start the issue of trying these
6 issues they become complex.
7 Q. Okay.
8 MR. BREHL: Can I have a moment?
9 THE ARBITRATOR: Sure.
11 THE ARBITRATOR: Back on the record.
12 BY MR. BREHL:
13 Q. In addition to Mr. Vargas and Mr. Grossman and
14 Mr. Pickering and Mr. Cannon, over the last 2 years,
15 what other attorneys at SCIF would you have worked with?
16 A. In the last 2 years?
17 Q. Yes.
18 A. Let's see. Mr. Estrada, Ms. Mesa, Mr. Mendoza
19 -- are you talking about the SCIF office here?
20 Q. Yes.
21 A. I think that's pretty much it. Did I miss
23 Q. Do you recall a Ms. Serrano as well?
24 A. Oh, yeah, I do, yeah. She was only there a
25 short time and then went over to, I guess, ALRB or
1 something. I think she took over -- she came in, I
2 think, when Mr. Cannon left, if I'm not mistaken.
3 Q. All right.
4 A. Yeah, okay.
5 Q. Now, I take it you have had no experience with
6 respect to the state classification system and how
7 determinations are made of the class levels within the
8 state --
9 A. That's correct.
10 Q. And your view of the complexity of cases is not
11 with any knowledge of the classification system but
12 rather upon your knowledge and experience of workers'
13 comp cases themselves in the forum of the general
14 practice of workers' comp?
15 A. Correct. I don't know what or how the classes
16 are set up or even how many classes there are. But what
17 I do understand is the nature of the case itself while
18 I'm dealing with it and the kind of response I get from
19 the other side.
20 MR. BREHL: Okay. I have nothing further.
21 MR. MESSING: I have nothing further.
22 THE ARBITRATOR: Okay. Thank you very much,
24 THE WITNESS: Thank you.
25 THE ARBITRATOR: Off the record.
1 (Off the record.)
2 THE ARBITRATOR: Who is our next witness going
3 to be, Mr. --
4 MR. MESSING: Mr. Glen Grossman.
5 THE ARBITRATOR: Back on the record.
6 The union has called Mr. Grossman as a witness.
7 Could you raise your right hand.
8 GLEN GROSSMAN
9 having been duly sworn, testified as follows:
10 THE ARBITRATOR: State and spell your name for
11 the record.
12 THE WITNESS: Glen Grossman, G-L-E-N,
14 THE ARBITRATOR: Let's go off the record one
16 (Off the record.)
17 THE ARBITRATOR: Back on the record.
18 DIRECT EXAMINATION BY MR. MESSING
19 Q. Can you state your current place of employment,
21 A. 25 San Juan Grade Road, Suite 200, Salinas,
22 California 93906.
23 Q. And what's your current classification?
24 A. I am a specialist.
25 Q. That's staff counsel specialist, staff
1 specialist III; is that right?
2 A. Yes. Yes?
3 MR. ESTRADA: Staff counsel --
4 MR. MESSING: Staff counsel specialist III.
5 BY MR. MESSING:
6 Q. And you work for SCIF?
7 A. Correct.
8 Q. Okay. How long have you been working for SCIF?
9 A. Since February 14th, 1989.
10 Q. And have you been at this location during that
11 period of time?
12 A. When I first started with State Fund, this
13 office was located on Blanco Circle, and then we moved
14 in '96 and I have been here ever since.
15 Q. Okay. What did you do before you came to work
16 for SCIF?
17 A. Immediately before I came to work for State
18 Fund I was with a family law specialist in Bakersfield.
19 Before that I had my own practice.
20 Q. And when did you start practicing law, about
21 what year?
22 A. I was admitted to the California bar December
23 1st, 1981.
24 MR. MESSING: Could you mark that for
25 identification, please.
1 THE ARBITRATOR: This is union 1. It appears
2 to be a resume.
3 MR. MESSING: I'll give a copy to the witness.
4 BY MR. MESSING:
5 Q. Can you identify this?
6 A. This is a resume that I prepared sometime since
7 May of last year.
8 Q. And is this a true and accurate reflection of
9 your background?
10 A. As far as it goes, yes.
11 MR. MESSING: Okay. I'd like that admitted.
12 THE ARBITRATOR: Any objection?
13 MR. BREHL: No.
14 THE ARBITRATOR: Admitted.
15 BY MR. MESSING:
16 Q. You said that you were a specialist. Let's
17 call it a specialist III, if that's all right. When
18 were you promoted to that position?
19 A. January 1st of this year.
20 Q. Do you happen to know your current monthly rate
21 of pay as a staff counsel III?
22 A. Not off the top of my head, no.
23 Q. Okay. Would $7,386 a month sound familiar?
24 A. That would sound about right.
25 Q. And what was your previous job title before you
1 became a specialist III?
2 A. I was a range D attorney.
3 Q. Okay. Now, I made some comments in my opening
4 statement about the progression of attorneys. I think
5 perhaps we should put that in the record.
6 What is the entry level position, and can you
7 just quickly describe the structure?
8 A. Entry level position is usually the A category,
9 and I think you spend a year there. And then you're
10 promoted to a B, and I think you spend a year at the B
11 range. And then you're promoted to a C. And I think
12 after 2 years at the C level, you're promoted to the D.
13 Q. And we are at sea level here in the Monterey
14 area -- just making light.
15 And it's a promotion from range D to the III
16 level; is that right?
17 A. Well, um, at State Fund there is a limited
18 number of specialist positions. So, for instance, Jose
19 and I were both applying for the position that I ended
20 up with. I don't know if that answers your question.
21 Q. No --
22 A. No.
23 Q. -- it doesn't.
24 What I'm asking is your movement from A to D is
25 automatic step movement?
1 A. Correct.
2 Q. Okay. From D to specialist III, is that a
4 A. Yes.
5 Q. Okay. That answers my question.
6 And can you briefly describe the current
7 composition of your office in terms of the attorneys?
8 A. There is 7 attorneys including Mr. Estrada, my
9 attorney in charge. There is a legal support
10 supervisor. And she supervises 5 -- I think she
11 supervises 5 full-time legal secretaries, and then some
12 temporary or youth aid people that we have working.
13 Q. The 6 staff attorneys other than the supervisor
14 classifications, their levels and who are they?
15 A. Steve Pickering is a specialist attorney III.
16 I'm a specialist attorney III. Mr. Vargas is an
17 attorney II -- attorney D.
18 Caron Mesa, C-A-R-O-N, I don't know if she is
19 still a C or a D now, I don't know. Joe Mendoza I
20 believe is a B. And Nikki, N-I-K-K-I, Kaur, K-A-U-R, I
21 believe she is a range C.
22 Q. How long has that configuration been in
23 existence? Let me put it this way, in January was that
24 the configuration in the office of the attorneys
1 A. Nikki had not come yet.
2 Q. All right. But other than that?
3 A. Right.
4 Q. Okay. When you first came to work for SCIF,
5 what was your classification?
6 A. I started as a range B.
7 Q. Do you recollect your monthly rate of pay when
8 you were last working as a range D?
9 A. I know it as an annual amount was $84,000.
10 Q. Does $7,034 sound familiar?
11 A. It does.
12 Q. Okay. Now, before I get into the specifics of
13 your cases, do you remember when Mr. Pickering became a
14 specialist III?
15 A. There was 2 occasions that that happened.
16 Q. The last occasion.
17 A. That was -- I believe it was effective February
18 1st, 2002.
19 Q. Okay. And what were the circumstances of
20 Pickering becoming a III at that time?
21 A. Our office had received an additional
22 allocation for a specialist position. Mr. Vargas,
23 myself and Mr. Pickering all interviewed for that
24 position. There were probably some other people that
25 interviewed for it too from outside the office. And
1 Mr. Pickering was the one that was selected.
2 Q. Okay. And who is Berry Cannon?
3 A. He was the specialist from 1997 or thereabouts
4 until February 2002 when he left State Fund.
5 Q. And when he left State Fund, what happened to
6 his specialist position?
7 A. There were interviews for his position. I
8 think those interviews were held in March of 2002, and
9 Mr. Vargas and I both applied and, geez, I think some
10 other people from out of the office applied as well.
11 Q. And what happened?
12 A. Nothing happened. Nobody was appointed to the
14 Q. Okay.
15 A. And then there was another round of interviews,
16 I want to say November of 2002, and I think at that time
17 only Mr. Vargas and I applied.
18 Q. And you were appointed in 2003?
19 A. Right.
20 Q. So Mr. Pickering, the timing is odd, but
21 Mr. Pickering wasn't actually taking Mr. Cannon's
22 position, but there was only an exchange of one for one,
23 one left and one was appointed about the same time?
24 A. Actually, Mr. Cannon was on our books until
25 April 30th, 2002. So Mr. Pickering and Mr. Cannon were
1 both technically on the books as specialists at the same
3 Q. Briefly?
4 A. Right, for 3 months.
5 Q. Okay. Have you had any occasion to serve in an
6 official capacity for the CASE union?
7 A. Yes.
8 Q. What is that capacity?
9 A. I was a director of ACSA, A-C-S-A, which stands
10 for the Association of California State Attorneys and
11 Administrative Law Judges from 1995 until 1999. And
12 then I was elected 2 years ago to the Board of Directors
13 of CASE, which is technically still ACSA. ACSA is still
14 the incorporated name, but it goes by CASE. And I have
15 been a director at CASE for the last 2 years.
16 Q. And in your capacity as director of CASE, do
17 you have any specific knowledge that you cultivate of
18 attorneys and their working conditions within SCIF?
19 A. Let me answer a different question.
20 MR. BREHL: Well, I don't think we can do that.
21 BY MR. MESSING:
22 Q. No. Why don't you answer that question.
23 A. I'm not sure I understand that question. Can
24 you rephrase it?
25 Q. As a director of CASE, do you make it your
1 business to figure out what the working conditions are
2 of CASE attorneys working for SCIF?
3 A. I am made aware by various attorneys in the
4 State Fund offices of their working conditions.
5 Q. Okay. And are you familiar with the contract?
6 A. The MOU?
7 Q. Yes.
8 A. Yes.
9 Q. And do you keep abreast of grievances and other
10 matters that emanate from SCIF?
11 A. I try to.
12 Q. Are you by any chance familiar with SCIF's job
13 description for staff counsel ranges C and D?
14 A. I have some familiarity with it.
15 MR. MESSING: I'd like to mark this as --
16 THE ARBITRATOR: Union 2.
17 MR. MESSING: Let me give a copy to Mr. Brehl.
18 Could you mark that.
19 THE ARBITRATOR: Union 2.
20 BY MR. MESSING:
21 Q. Union 2. Could I ask you to have a look at
22 that document. Tell me if you recognize it?
23 A. Yes.
24 Q. And what is this?
25 A. I believe it's a job description that I
1 received when I was promoted to the range C --
2 Q. Okay.
3 A. -- level.
4 Q. And do you know who wrote this job description?
5 A. I have no idea.
6 Q. Okay. Do you know if the job description was
7 written by somebody at SCIF?
8 A. I assume it was.
9 Q. Okay. Have you ever seen a SCIF job
10 description -- have you ever seen a job description for
11 specialist IIIs?
12 A. Yes.
13 Q. Okay.
14 MR. MESSING: I'd like this to be marked as our
15 next in order, please.
16 THE ARBITRATOR: Union 3, this is entitled
17 "State Compensation Insurance Fund," job description for
18 senior staff counsel specialist.
19 BY MR. MESSING:
20 Q. I'll ask you to look at that. Do you know what
21 that is?
22 A. I believe it's the job description for the
23 position that I now hold.
24 Q. Okay. Do you know if that description was
25 prepared by somebody at SCIF?
1 A. I believe it was.
2 Q. Okay. May I have that back for a moment.
3 MR. MESSING: And I'd like to draw the
4 arbitrator's attention to the first paragraph describing
5 function. I don't think I need to read that into the
7 MR. BREHL: Speaks for itself.
8 THE ARBITRATOR: No.
9 MR. MESSING: All right. Thank you.
10 First of all, I'd like to move these 2
11 documents into evidence.
12 THE ARBITRATOR: Any objection?
13 MR. BREHL: Let's go off the record a minute.
14 THE ARBITRATOR: Okay.
15 (Off the record.)
16 THE ARBITRATOR: Back on the record.
17 MR. MESSING: I want to state for the record
18 that Exhibit U-3, senior staff counsel specialist, was
19 produced to the office of Carroll, Burdick & McDonough
20 on behalf of the CASE in September of 2002 in response
21 to a request for information under the Public Records
23 THE ARBITRATOR: So this was produced by SCIF?
24 MR. MESSING: By SCIF, that's correct.
25 THE ARBITRATOR: Okay.
1 MR. BREHL: Could I just ask one thing on that
2 just so we have a clear record. That would have been a
3 request, I take it, of SCIF at their headquarters
4 office, not Salinas?
5 MR. MESSING: I don't recollect. I'll have to
7 MR. BREHL: Okay.
8 MR. MESSING: I don't know if I'll be able to
9 trace that back because we have now transferred the
10 files in our office to the in-house office that was
11 established for CASE, and there were literally hundreds
12 of boxes, so I don't know if we have the capacity to
13 provide that.
14 MR. BREHL: Can I just ask this so I can check
15 up there and trace it down, so I can describe it for
16 them? Was it like during bargaining or something where
17 you had to get information as to what the different job
18 specs said?
19 MR. MESSING: I don't know. But I think what
20 you ought to do is check with George Cronin. I think he
21 was the one that provided this to us.
22 THE ARBITRATOR: The question is whether to
23 admit 2 and 3.
24 MR. BREHL: Well, they are different. At this
25 point I'm afraid I have to object to them until I can
1 check with Cronin and find out what's going on.
2 THE ARBITRATOR: I'll mark my copy as
3 identified only and I'll hold that in abeyance. That's
4 for both of them; is that correct?
5 MR. BREHL: Yes.
6 BY MR. MESSING:
7 Q. Have you seen -- moving on, then, have you seen
8 job descriptions issued by the State Personnel Board for
9 range D staff attorneys and specialists?
10 A. Yes.
11 MR. MESSING: I'd like this marked --
12 THE ARBITRATOR: Union 4, this appears to be a
13 State Personnel Board specification for staff counsel,
14 Union 4.
15 BY MR. MESSING:
16 Q. Does this look familiar?
17 A. Yes.
18 Q. What is this?
19 A. It appears to be the California State Personnel
20 Board specifications for positions in ranges A through
22 Q. Okay.
23 THE ARBITRATOR: Union 5 for identification,
24 this is the SPB specifications for staff counsel III.
25 BY MR. MESSING:
1 Q. Have a look at that, please. Do you recognize
3 A. Yes.
4 Q. What is it?
5 A. It is the specifications by the California
6 State Personnel Board for the position of staff counsel
7 III specialist.
8 MR. MESSING: Okay. And I would draw the
9 arbitrator's attention to the first paragraph under
10 distinguishing, or actually the entire paragraph under
11 distinguishing characteristics on the first page, U-A,
12 Union A.
13 MR. BREHL: Okay.
14 MR. MESSING: I would ask these 2 documents be
15 entered into evidence.
16 THE ARBITRATOR: Any objection to 4 or 5?
17 MR. BREHL: No, I would be disloyal if I did.
18 They are DPA documents.
19 THE ARBITRATOR: Okay. They are admitted.
20 BY MR. MESSING:
21 Q. Now, you have noted the difference between the
22 SCIF job descriptions and the SPB job descriptions that
23 we have marked for identification and entered into
25 A. I've noted some of the differences.
1 Q. Do you want to characterize those differences
2 for the record
3 A. To summarize it, it appears that the range D
4 work at State Fund meets the State Personnel Board's
5 definitions for attorney III specialist work.
6 Q. Okay. Now, when you were a range D staff
7 attorney, did you receive assignments from SCIF that are
8 inconsistent with the SPB job description that we see in
9 Exhibit Union 5?
10 A. I believe so.
11 Q. Okay. And how exactly -- would you explain
12 exactly how your duties seem to be inconsistent with
13 that SPB job description?
14 A. I believe the SPB job description for the range
15 D calls for cases of average complexity, and my
16 caseload, I believe, was more complex than average
18 Q. Okay. And we're speaking now -- I'm going to
19 be very specific about the time period of the grievance
20 commencing one year prior to the filing of the
21 grievance. Is your testimony correct for that period?
22 A. It's even more correct for that period.
23 MR. BREHL: Well, okay, he's answered. But I
24 would object to the question, would have if I could
25 have. I think we have not established foundation for
1 what this person would know to be complexity in the
2 classification system for the state.
3 THE ARBITRATOR: Well, you know, I take the
4 word complex at this point to be just the usual word,
5 not used in any technical sense. And I mean certainly
6 I'm aware of course that that word appears in the job
7 descriptions, but his testimony, the prior witness's
8 testimony about complexity is their understanding. It
9 doesn't reflect necessarily policy.
10 MR. BREHL: Okay.
11 BY MR. MESSING:
12 Q. When you were a range D attorney, and from now,
13 from this point on let me focus on the period covered by
14 the request for back pay and the grievance. Were you
15 ever asked to act as a lead over other attorneys?
16 A. I know I was asked to assist, but I can't
17 recall any specific instance where I was asked to be a
18 lead attorney.
19 Q. But you believe that you were?
20 A. I'm sorry?
21 Q. You said you can't recollect a specific
23 A. Right.
24 Q. Does that mean that you recollect it occurring
25 but you just can't define a specific instance, or you
1 don't have any recollection?
2 MR. BREHL: I can't resist this. This is
4 THE ARBITRATOR: Well, he managed to somewhat
5 clean it up at the very end, but -- you can answer the
7 THE WITNESS: It's my general impression that I
8 did act as lead attorney, but I cannot give you a
9 specific instance.
10 BY MR. MESSING:
11 Q. Okay.
12 A. I can't give you a case name or situation.
13 Q. Okay. Were you expected as a range D to work
14 on sensitive and complex cases?
15 A. Yes.
16 Q. I want you to talk about some of the cases that
17 you worked on that were in your estimation sensitive or
18 complex. Describe them, describe the case and why the
19 case was sensitive and complex. And this is, again,
20 targeting the same period of time. For example, do you
21 recollect the Teresa Sanchez case?
22 A. Yes.
23 Q. Would you explain that case briefly for the
24 arbitrator and why it was sensitive and complex.
25 A. The injured worker had alleged an injury. She
1 spoke no English. The employer spoke no English. The
2 employer maintained that the lady was working off a
4 MR. BREHL: I'm sorry?
5 THE WITNESS: The lady, the alleged injured
6 worker was working off a loan. The employer was denying
7 there was an employee-employer relationship. And it
8 took a number of hours. There was labor commissioner
9 proceedings involved. We litigated the issue of whether
10 res judicata at that time or estoppel would apply. I
11 lost the trial. We went up on reconsideration, which is
12 our appeal process.
13 It took a lot of time, a lot of work. There
14 were depositions of the injured worker, of a witness, of
15 the employer. The employer's attorney was in contact
16 with me on a regular basis.
17 BY MR. MESSING:
18 Q. What was the result of the collateral estoppel
19 issue that was raised in that case? What happened?
20 A. The workers' compensation judge applied
21 collateral estoppel to prevent us from relitigating
22 issues that had been determined at the labor
24 Q. What about the Amador Salas matter, can you
25 briefly describe that for the record?
1 MR. BREHL: Can you spell Salas?
2 MR. MESSING: S-A-L-A-S, Salas.
3 THE WITNESS: That was another case where State
4 Fund had denied the claim. We went to trial. But prior
5 to trial actually starting, the applicant's attorney and
6 myself stipulated as to the date that the injured worker
7 became permanent and stationary. We went to trial and
8 the judge ruled against me. The judge basically ignored
9 the stipulation as to when the injured worker became
10 permanent and stationary. So I petitioned for
11 reconsideration on that ground and obtained a reversal
12 of the judge's ruling.
13 BY MR. MESSING:
14 Q. Why was that case complicated or sensitive?
15 A. Well, any time you're pointing out to a
16 reviewing court that the lower court judge ignored a
17 rule of law or a board regulation, it's somewhat
18 sensitive because this is a 3-judge board. I mean you
19 can't avoid seeing these judges. So I had to be very
20 delicate in my petition alleging error because I was
21 going to have to deal with that judge again.
22 Q. Okay. What was the Larry Sumpter matter?
23 A. Larry Sumpter was a case where, if you recall
24 Mr. Rucka this morning was talking about CIGA, the CIGA
25 attorney and applicant's attorney had agreed to use a
1 chiropractor on a medical issue. The chiropractor found
2 a cumulative injury with -- that was long enough that it
3 brought State Fund into the picture for, I think State
4 Fund had 2 weeks of exposure. But under the law if
5 State Fund has one day of exposure, State Fund has to
6 assume all the liability for that claim. And I believe
7 the guy was post surgery. There was $30,000 in
8 outstanding medical bills. And I worked very closely
9 with the adjuster in getting a -- our own medical
10 opinion. We only had 90 days to work with because it
11 had already been set for trial by the time I got the
12 file. We got the doctor's report and I got in touch
13 with the doctor. We cleaned up his report so that it
14 was very favorable to State Fund, and then we went to
15 trial and the judge decided that our medical report was
16 more -- was more -- carried more weight, and he found
17 that State Fund didn't have any liability in that case.
18 And the -- obviously the adjuster was happy, the
19 employer was happy. The adjuster's supervisor sent an
20 e-mail to the office telling everybody that we had won
21 this case.
22 Q. And your medical report was based upon an AME;
23 is that right?
24 A. In that case?
25 Q. Yes.
1 A. No, I'm sorry. I missed that point. In
2 workers' comp usually the judges will follow the opinion
3 of the agreed medical examiner. In this case CIGA and
4 the applicant's attorney already had their agreed
5 medical examiner. State Fund wasn't a part of that.
6 And the judge decided that State Fund's
7 defense-qualified medical examination report was more
8 valid than the agreed medical examination report that
9 the -- that CIGA and the applicant's attorney had
10 procured, and that's very unusual for a trial judge not
11 to follow the agreed medical examiner.
12 Q. So you basically convinced the judge to not
13 admit the qualified medical examination as opposed to
14 the agreed upon medical examination or vice versa?
15 A. No, no. The judge takes both in and weighs
16 which one is more credible, and the judge found that
17 State Fund's report was more credible than the agreed
18 medical examiner.
19 Q. Okay. Just a few more. What about the Robert
20 Beck matter?
21 A. It's still ongoing. That was a case where --
22 I'm trying to remember. My recollection is the question
23 was, was the pain in the neck to be rated independently
24 from the back disability, or was it subsumed by the back
25 disability. And the judge bought State Fund's position
1 and the rater agreed with us and I believe the
2 commissioners agreed with us as well.
3 Q. Did that involve something about a
4 semisedentary rating?
5 A. Right, right.
6 Q. And what's that?
7 A. It's a degree of permanent disability which is
8 equal to a dollar amount when you know the earnings.
9 But it was just a very confusing rating issue. One of
10 the ratings was one of the things that Mr. Rucka was
11 talking about this morning that could be very complex.
12 Q. And that was an example of that?
13 A. Right.
14 Q. What was the Darwin Nash matter?
15 A. That was -- Mr. Nash had had several knee
16 injuries. Some had been previously settled. He had an
17 injury in 1988 with State Fund. He then filed a
18 cumulative injury and he petitioned to reopen the 1988
19 injury arguing that because State Fund provided benefits
20 beyond the 5-year period that State Fund should be
21 estopped from raising the statute of limitations.
22 Q. Okay.
23 A. Allianz Insurance Company was involved. The
24 judge found that Mr. Nash was a hundred percent totally
25 disabled, and I petitioned for reconsideration arguing
1 that you could not apply estoppel to the 5-year statute
2 because it wasn't a normal statute of limitations. It
3 was actually a jurisdictional statute.
4 I lost at the commissioner's level and State
5 Fund's appellate attorneys chose not to take it further.
6 I mean there are boxes of that file. It's several feet.
7 I mean he's had several surgeries. There were
8 depositions of the doctors, the treating doctors, the
9 agreed medical examiners, several depositions of
10 Mr. Nash. Probably half a dozen hearings.
11 Q. Okay. What was complex about the Rosalinda
12 Mendoza matter?
13 A. That was a case, as far as I know was a case of
14 first impression. It was a lien claim that they were
15 trying to use a statute that was written only to apply
16 to injured workers, and defendant's -- the applicant's
17 attorney and State Fund had agreed to use -- they had
18 agreed on a treating doctor, and they were -- in
19 workers' comp there is a presumption that the treating
20 doctor is correct. That won't be true after January
21 1st, but at that time it was true. And so the lien
22 claimant was trying to argue that the treating doctor
23 had put all the disability on State Fund, that that
24 opinion of the treating doctor was entitled to
25 presumption of correctness. And I convinced the judge
1 that the lien claimant could not use that presumption.
2 They could not use that statute.
3 Q. Okay. Do you remember a Frances Moore case?
4 A. Yes.
5 Q. What was unusually complicated or sensitive
6 about that case?
7 A. She was a former correctional officer at
8 Soledad, and she had a psych case, and she could not
9 take advice from anybody. In fact she fired Mr. Rucka
10 and she was litigating in pro per for years. It was
11 just impossible to deal with. It was just -- it was
12 just -- it was very, very difficult. And the judges, of
13 course, because Frances Moore was representing herself,
14 they just bent over backwards to give her anything she
16 Q. Had she made any claims about her medical
17 treatment, about SCIF denying her medical treatment?
18 A. Constantly. She was constantly making claims.
19 In fact, it's the file that Mr. Estrada said he didn't
20 want to touch. I mean she was just -- she was always
21 saying State Fund didn't do this, didn't do that, State
22 Fund wouldn't pay for her cancer treatment, a lot of
23 hearings, lots and lots of hearings at the appeals
25 Q. Did this case have a PERS component?
1 A. Yes. One of Frances's arguments to the judge
2 was State Fund was denying her cancer treatment, and she
3 is a PERS member, and she is entitled to PERS medical.
4 I got hold of a PERS attorney in Sacramento and I got
5 him to -- because she wouldn't file the application
6 because she was fighting with PERS over what her benefit
7 amount would be, so instead of getting some amount, she
8 was receiving no amount. So I got the PERS attorney
9 involved. He scheduled hearings. And she eventually
10 got PERS health benefits.
11 Q. Going back to Mr. Rucka's testimony for a
12 second, you heard him describe the different manners or
13 ways in which cases can be complex or sensitive. Do you
14 agree with those characterizations?
15 A. Yes.
16 Q. Okay. So in the Frances Moore case you
17 indicated that there was a psychiatric component to the
19 A. Right.
20 Q. And that was one of Mr. Rucka's categories of
22 A. Right.
23 Q. That this was a corrections case as well?
24 A. Yes.
25 Q. And that it was also a case involving a PERS
2 A. Right.
3 Q. Okay. What was the Marvin Tindle matter, and
4 how did that fit into Mr. Rucka's paradigm or
6 A. I'm sorry, I do not remember.
7 Q. Do you recall a case having to do with Labor
8 Code Section 3357 and --
9 A. This is a guy I'm thinking of, he wandered on
10 to a job site, got injured and claimed because he was
11 performing service for the employer, he should be
12 considered by law an employee. I had the employer come
13 and testify he had never seen him before. He didn't
14 hire him. And the judge agreed with us.
15 Q. So in legal terms, was there -- what was the
16 manner in which this case was disposed?
17 A. State Fund -- the judge issued a take nothing,
18 meaning State Fund doesn't have to pay any money. What
19 was interesting about that is there was that labor code
20 presumption that when performing service for another,
21 one is presumed to be an employee. I was able to
22 establish first there has to be an employer-employee
23 relationship before the presumption kicks in.
24 Q. The Hazel McPherson matter, can you explain to
25 the arbitrator why that was a complex case?
1 A. I believe she was working for a nurses
2 registry. She was injured at a home. And there was a
3 question as to who the employer was, was it to be the
4 homeowner or the nurses registry.
5 Q. Okay. So what legal issues did this raise and
6 why was it a complex case?
7 A. Well, the issue was who was the employer? Who
8 was ultimately going to be liable for providing
9 benefits. And I was able to convince the judge that
10 State Fund should not be the one paying benefits.
11 Q. Was there any issue that arose in this case
12 that required you to apply the Business and Professions
14 A. Yes. Nurses registries are regulated under the
15 Business and Professions Code. So I had to bring the
16 Business and Professions Code into the case.
17 Q. Just a few more. Who is Stacy Rose and why was
18 that case complicated?
19 A. I'm sorry. I don't remember.
20 Q. Okay. Do you recollect whether that case
21 involved a prior admitted injury with SCIF? Does that
22 ring any bell?
23 A. No. I'm sorry.
24 Q. Are you familiar with Cindira Dichiara?
25 MR. BREHL: Let's spell that one.
1 MR. MESSING: D-I-C-H-I-A-R-A.
2 THE WITNESS: Did she work for the CHP?
3 BY MR. MESSING:
4 Q. Well, that would appear to be the case I'm
5 referring to.
6 A. Yes, I remember that.
7 Q. Do you want to explain why that was a complex
8 case to the arbitrator?
9 A. This morning Mr. Rucka was talking about the
10 law constantly changing, at least in workers' comp, and
11 depending on your date of injury that will impact on the
12 benefits. And as I recall Ms. Dichiara had a specific
13 injury which was admitted. Actually somebody from
14 Mr. Rucka's office was alleging a cumulative injury,
15 which would have brought it to a much later date. But
16 after the adjuster and I ran the numbers, it turned out
17 it would be cheaper for the California Highway Patrol to
18 admit the cumulative injury and pay benefits on that
19 rather than to pay benefits on the specific injury that
20 they did admit.
21 Q. So does this implicate the ratings --
22 A. Right.
23 Q. -- that were brought forward by Mr. Rucka?
24 A. Right. Involved permanent disability under two
25 different schedules. It also involved working with the
1 state agency who wanted to fight the case until we
2 explained to them that it's actually cheaper to admit
4 Q. Okay. Real quick, Allen Brookshire, does that
5 ring a bell?
6 A. Yes.
7 Q. In a nutshell?
8 A. I prepared a settlement agreement which
9 specified the percentages of liability of the four
10 defendants to the case. The case was settled. One of
11 the defendants didn't pay and I petitioned to enforce
12 the award. The codefendant argued that we had to go to
13 arbitration to resolve the issue, and I was able to
14 convince the judge that all we were doing is enforcing
15 the award, there was no need to go to a separate
16 arbitrator. It wasn't required by law.
17 Q. Okay. And that was complex for what reason?
18 A. Because the codefendant's argument was what I
19 was seeking to do was to obtain contribution. There is
20 a separate statutory scheme for contribution, and that
21 scheme requires going to an arbitrator to resolve those
22 disputes. And I was able to avoid going there, avoid
23 that expense and having the judge, you know, resolve the
24 issue to our favor.
25 Q. Okay. I have some other examples but I'm going
1 to skip by them for now.
2 THE WITNESS: Could we take a 5-minute break?
3 THE ARBITRATOR: Sure.
5 MR. MESSING: Are we back on the record?
6 THE ARBITRATOR: Okay.
7 MR. MESSING: As I had said, I had other cases
8 that I was going to describe, but in the interests of
9 not killing everybody at once in this room, I'll move
11 MR. BREHL: You'll do it over a longer period
12 of time?
13 MR. MESSING: I will.
14 BY MR. MESSING:
15 Q. The cases that you have been describing, who
16 assigned them to you?
17 A. Mr. Estrada.
18 Q. Okay. Now, when you were assigned cases, did
19 Mr. Estrada ever verbalize it when these cases were
20 complex or sensitive?
21 A. On occasion if there was something that was
22 very sensitive that the employer was calling him,
23 yelling and screaming or what have you, he would warn
25 Q. Can you give me an example of a complex case, a
1 difficult and complex case that Mr. Estrada may have
2 commented to you about its complexity?
3 A. Frances Moore certainly was one.
4 Q. That's the case that you previously have
6 A. Right.
7 Q. Okay. Now, do you work on similar types of
8 sensitive and complex cases as a specialist?
9 A. Yes.
10 Q. Okay. What is the difference between the
11 caseload that you're carrying now and the caseload that
12 you were carrying during the, we'll call it the
13 grievance period? If I say grievance period, let's
14 assume that that applies to everything beginning a year
15 before the filing of the grievance. What's the
16 difference between your caseload as a specialist and the
17 cases that you were carrying during the grievance
19 A. I think 2 factors. One is my caseload is
20 larger now than it was when I was a range D attorney.
21 But then everybody's caseloads statewide are larger now.
22 The other is I have a few more serious and willful cases
23 in my caseload.
24 THE ARBITRATOR: A few more what?
25 THE WITNESS: Serious and willful.
1 I think in August of 2002 I had maybe 7 and now
2 I probably have 10.
3 BY MR. MESSING:
4 Q. Do you remember during the grievance period
5 approximately how many cases you were responsible for as
6 a range D attorney?
7 A. I have compiled the statistics, but I do not
8 recall what those statistics are off the top of my head.
9 Q. We'll get to that in a moment, but before I do,
10 if I may, can we talk for a moment about your caseload
11 when you were promoted. What happened to the cases that
12 you were handling? Did you give them to another
13 attorney, a range D attorney, or did you maintain your
14 same cases?
15 A. I maintained my same caseload.
16 Q. How many -- were you immediately assigned some
17 new cases when you were promoted, or did that occur just
18 in the course of the rotation and people getting
19 assigned cases?
20 A. I think I probably got -- I know in December I
21 got one of Mr. Cannon's serious and willful cases and
22 probably in January I got some serious and willful cases
23 reassigned to me that had been assigned to
24 Mr. Pickering.
25 Q. What happened to all the cases that you had
1 been working on before that?
2 A. I kept those.
3 Q. Okay. And before we get to that, let me just
4 ask you about the promotional process. Can you please
5 just describe what was involved in your promoting from
6 the D to the specialist III?
7 A. Okay. I had to fill out or complete a document
8 entitled "Professional Readiness Appraisal." It was
9 about 12 pages. I had to list examples of complex cases
10 I worked on, cases involving novel issues of law. I
11 basically had to describe my legal qualifications. And
12 that was submitted to Mr. Estrada and Mr. Estrada made
13 comments, and that went to his supervisor, Fred DaSilva,
14 for additional comments.
15 Q. Now, that Professional Readiness Appraisal, did
16 that result in some action, some decision before you
17 were permitted to proceed on in the promotional process?
18 A. Having a -- my understanding is having a
19 satisfactory or better rating on that PRA entitled me to
20 sit for the oral interview.
21 Q. Okay. And do you remember what your rating
22 was? Was it satisfactory or better?
23 A. I believe it was better.
24 Q. Okay. Now, are there documents that reflect
25 your caseload at the time that you were a D?
1 A. Yes.
2 Q. What would those documents be called?
3 A. Well, there is a number of documents. Every
4 year in December we do an annual case count, and then
5 during the year the attorneys in charge keep track of
6 new cases coming in, cases being closed, and those are
7 compiled in production profiles statewide.
8 Q. Production profiles. Is that what their
9 official title would be?
10 A. I believe so.
11 Q. Okay.
12 THE ARBITRATOR: Why don't we go off the
14 (Off the record.)
15 MR. MESSING: I want to mark this as my next in
16 order. What number would this be?
17 THE ARBITRATOR: This would be 6, I do believe.
18 Does that sound right?
19 BY MR. MESSING:
20 Q. Can I ask you to identify this document? Do
21 you recognize this document?
22 A. Yes.
23 Q. And what is it?
24 A. This is entitled "Production Profiles and
25 Litigation Activities." This is April to June 2002 on
1 the top.
2 Q. And your position at that time was what?
3 A. I was a range D attorney.
4 Q. Okay. And would you please explain to the
5 arbitrator what this document shows and where he should
6 look? Try to keep the pages in order if possible.
7 A. This shows the year-to-date litigation activity
8 for all the State Fund offices.
9 THE ARBITRATOR: You're referring to the second
10 page in here?
11 Let's go off the record a second.
12 (Off the record.)
13 BY MR. MESSING:
14 Q. Would you please -- we now have this document
15 marked pages 1 to 45. Could you please walk through
16 this document with the arbitrator and explain the
17 significant statistics here regarding the production and
18 the caseload?
19 A. Basically this is showing year over year over
20 year increase in the number of cases and litigation
21 activities for all State Fund offices statewide. Page 2
22 is for Northern California. It's the year-to-date stats
23 for Northern California the beginning of 2000 through
24 June 2002, that's page 2.
25 Q. As you're doing this, do you want to point out
1 what the data shows?
2 A. Sure. Salinas is right in the middle of the
3 chart on page 2. And it shows we had 1,672 open files.
4 It shows we had 113 trials in the first 6 months of
5 2002, 532 conferences, 123 depositions.
6 THE ARBITRATOR: Right. Okay.
7 THE WITNESS: Okay. Page 3 is for Southern
9 THE ARBITRATOR: Let me ask, I'm just
10 wondering, is Southern California going to be relevant
12 MR. MESSING: No.
13 THE ARBITRATOR: Okay.
14 THE WITNESS: Page 4 is year to date through
15 May 2002.
16 THE ARBITRATOR: So I mean this has the same
17 figures. It just goes through May, and the page 2 goes
18 through June?
19 THE WITNESS: Correct.
20 THE ARBITRATOR: To June just has more. I'm
21 just wondering if there is any reason I need -- will
22 need to look at May?
23 THE WITNESS: No, I don't think so.
24 THE ARBITRATOR: Okay.
25 BY MR. MESSING:
1 Q. No. I just wanted you to get to those things
2 on the pages that you want to bring to the arbitrator's
4 A. Page 6 shows the average open cases per
5 attorney on staff. And it shows that for Northern
6 California the average number of cases per staff was
7 247, but in the Salinas office we were averaging 289.
8 Q. Okay.
9 A. Page 15 shows year to date through June 2001.
10 That's page 15. And that shows that for Northern
11 California the average caseload for an attorney was 239,
12 but in Salinas we had -- the average was 275.
13 Page 31 is the --
14 THE ARBITRATOR: Let me go back to this page 15
16 THE WITNESS: Sure.
17 THE ARBITRATOR: This is then for as of June.
18 THE WITNESS: 2001.
19 THE ARBITRATOR: 2001 those were the figures?
20 THE WITNESS: Correct.
21 THE ARBITRATOR: 275 cases average in Salinas?
22 THE WITNESS: Right.
23 THE ARBITRATOR: Okay.
24 MR. BREHL: You know, the one problem that I
25 think we have with that, unless I'm mistaken, that would
1 have to be irrelevant, because that's before the --
2 that's before the period of the grievance, I think,
3 isn't it? It goes back to September 2001. I believe
5 MR. MESSING: We're showing the general --
6 THE ARBITRATOR: Okay. We'll come back to
8 MR. MESSING: -- general trends. It's not
9 important whether it's in the period or not. We're
10 showing the general distributions.
11 THE ARBITRATOR: Well, I mean you can sort of
12 point out. What is the period? I've got to focus on
14 MR. BREHL: It would be September 6th, 2001,
15 well, for Mr. Vargas to the present and for him it would
16 be beginning.
17 THE ARBITRATOR: Okay, beginning September.
18 What was the next one you were going to point out?
19 THE WITNESS: The next one is page 31.
20 THE ARBITRATOR: Okay.
21 THE WITNESS: Which shows the statewide
22 statistics as of the end of September 2000. That shows
23 Northern California the average attorney caseload was
24 209. And in Salinas the average was 242. So in other
25 words, the Salinas attorneys consistently carried a
1 caseload above the average of Northern California, which
2 -- and Northern California is much higher than Southern
4 MR. MESSING: Let's move on. There will be
5 some more documents which will perhaps assist.
6 Can we mark this as the next exhibit in order.
7 THE ARBITRATOR: Union 7.
8 MR. MESSING: Union 7.
9 BY MR. MESSING:
10 Q. Could you please identify this document?
11 A. This is to show -- well, page 1 is for the
12 first quarter of 2000, and then page 2 is the fourth
13 quarter of 2002, just to show the increase. And in
14 Salinas in the first quarter of 2000, well, the
15 statewide average caseload was 202. The average in
16 Salinas was 229. And then two and a half years later
17 the statewide average caseload is 285 and Salinas it's
18 280, which reflects a new attorney coming in, but my
19 actual caseload was much higher than that.
20 Q. Okay. Now, there are documents that show what
21 cases that you work on, correct?
22 A. Correct.
23 MR. MESSING: Okay. So I'm going to ask this
24 document be marked as our next in order. What would
25 this be?
1 THE ARBITRATOR: Union 8. So this -- what
2 you're handing me is all one --
3 MR. MESSING: One exhibit. I'll make sure that
4 that's the correct document here. Oops, sorry. Hang on
5 one second. I see. Hang on a second, wrong document.
6 I would ask you to mark that then. What's that
7 next in order?
8 THE ARBITRATOR: Union 8, and this is the first
9 page it says report date August 16th, 2002, assigned
10 attorney Glen Grossman.
11 BY MR. MESSING:
12 Q. In a nutshell, what is this?
13 A. This is a list of all of my cases as of August
14 16th, 2002, and I've crossed out where the name is
15 redundant. In other words, an injured worker could have
16 more than one claim, but we only count it as one injured
18 THE ARBITRATOR: Okay.
19 BY MR. MESSING:
20 Q. So this reflects your actual caseload?
21 A. Right. And if you have 2 loose pages at the
22 bottom, I don't know if you do -- yeah, okay. The last
23 2 pages reflect the serious and willful claims that I
24 had as of that date.
25 BY MR. MESSING:
1 Q. And how many are reflected there?
2 A. 7.
3 Q. As you testified to earlier?
4 A. Yes.
5 Q. Okay.
6 MR. BREHL: How do you tell?
7 MR. ESTRADA: Look in the back.
8 THE WITNESS: The last 2 pages in the back.
9 MR. BREHL: Okay. Great.
10 BY MR. MESSING:
11 Q. Perhaps to make this a little easier for the
12 arbitrator, in December are you responsible to count the
13 number of cases that you're handling and indicate what
14 kind of case they are?
15 A. Yes. We have to count up the entire caseload,
16 how many serious and willful claims, how many
17 discrimination claims, how many of those cases are
18 policy cases, and how many of those cases are state
19 agency cases.
20 Q. Okay. Do people, by the way, in the office
21 discuss with each other how many cases they're handling?
22 A. Generally speaking we do.
23 Q. Okay. And have you discussed your caseload and
24 Mr. Pickering's caseload with each other?
25 A. Yes.
1 Q. Okay. When?
2 A. Oh, I'm sure we discussed it this past
3 December, because we're always in there at the same
4 time. Everybody is pulling files off the shelves
6 Q. Did you find that when you were still a range D
7 attorney during the grievance period that your caseload
8 had a similarity to Mr. Pickering's?
9 A. For most of that time period it did. I think
10 in December 2002 his caseload was probably higher than
11 mine. But for most of the time period it was the same,
12 substantially the same.
13 Q. And he was a specialist at that time?
14 A. In December 2002 he was a specialist.
15 MR. MESSING: Let's mark as --
16 THE ARBITRATOR: Union 9, this will be 2 pages.
17 There are 3 names on here, Grossman, Vargas and
19 BY MR. MESSING:
20 Q. Would you explain to the arbitrator what these
21 pages represent?
22 A. Sure. I took the calendars for the year 2000,
23 2001 and 2002 through June 30th of 2002 and I added up
24 -- I counted how many mandatory settlement conferences I
25 had, how many depositions I had, how many trials I had
1 and then the total number of appearances of those 3
2 types. And I did that for Mr. Vargas as well as
3 Mr. Pickering, and these are the numbers that I came up
5 Q. And you accumulated these numbers by reviewing
6 what documents?
7 A. The weekly calendars for the office.
8 Q. Okay.
9 MR. BREHL: These are like electronic
11 MR. MESSING: Okay. Well, I'm going to ask
12 that this document be marked --
13 MR. BREHL: Could I voir dire on that document
14 just for a second?
15 MR. MESSING: This may clear it up. Do you
16 want to wait?
17 THE ARBITRATOR: Okay. It hasn't been offered
18 yet. Go on.
19 Union 10 is a packet, a large packet entitled
20 something calendar, oh, major, what's that, master,
21 master calendar.
22 MR. MESSING: Sorry, there is a hole punched in
23 the S.
24 THE ARBITRATOR: Union 10.
25 BY MR. MESSING:
1 Q. Would you take a look at this and tell me what
2 this is?
3 A. The top part -- there is a part on top of the
4 first divider -- is our weekly calendar for January 2nd,
5 2002 through July 2nd, 2002.
6 Q. Okay.
7 A. And underneath that I believe is the calendar
8 for the entire year of 2001.
9 Q. Okay.
10 A. And then underneath that is the entire calendar
11 for the year 2000.
12 Q. Okay. So is this -- are these the records that
13 you use to compile, then, case numbers that you were
14 referring to before?
15 A. That's on Union Number U-9, yes.
16 Q. Right. Now, if you turn to the second page of
17 U-9, will you explain what we have there?
18 A. These are the numbers of my caseload as of the
19 date that I counted from 1993 through April of this
21 Q. Okay.
22 A. Let me just explain that all the numbers except
23 the very last one are based on an actual count. The
24 April 29th, '03 count is based on my internal tracking
25 system. In other words, I didn't do a physical count,
1 but I inventory every file when it comes in and when it
2 goes out. And that's the number that I had.
3 Q. Okay. In December of '02 when your caseload
4 was 349, you were still at the D level?
5 A. Correct.
6 Q. Okay. And in April of '03 you were then a III?
7 A. Correct.
8 Q. Okay. But you also testified that -- so there
9 is an increase of about 30 some odd cases there. But
10 you also testified that there was an increase in
11 everybody's caseload at that time, is that right, during
12 that period?
13 A. Yes, yes.
14 Q. Okay.
15 A. There has been a steady increase for the last 2
17 Q. Okay.
18 THE ARBITRATOR: What are you counting from?
19 Are you counting from these documents, well, this is a
20 printout like Union 8?
21 THE WITNESS: Actually, the top numbers except
22 for the very last one are based on a physical count, an
23 actual physical count.
24 THE ARBITRATOR: What, of the folders in your
25 filing cabinet?
1 THE WITNESS: Yes, we pull each file down, look
2 at it, say this should be closed, this should be moved,
3 somebody needs to do something on this, the adjuster
4 needs to be contacted. It's basically inventory of all
5 the files. So these top numbers are based on an actual
6 physical count.
7 THE ARBITRATOR: Okay. Are you going to
8 offer -- you've got a number -- I don't know whether --
9 if you're sort of at a break, if you're not that's all
10 right, but we've got Union 6 through 10.
11 MR. MESSING: Right.
12 THE ARBITRATOR: Did you want to offer them
14 MR. MESSING: I was going to, at that moment.
15 THE ARBITRATOR: Very good.
16 MR. BREHL: U-8 is fine. I want to make sure I
17 understand something.
18 THE ARBITRATOR: Okay.
19 MR. BREHL: U-9 is based upon your actual count
20 from U-10, right?
21 THE WITNESS: Yes.
22 MR. BREHL: Okay. Well, I'm sure it's
23 accurate, you know, I think it can go in, if I count
24 them up myself and there is a discrepancy, I'll let you
1 THE ARBITRATOR: Fine. But there is no
2 objection to Union 6 through Union 10, so they will be
3 admitted at this point.
4 BY MR. MESSING:
5 Q. Do you know about how many appearances you
6 average per year as a range D attorney?
7 A. I'd have to look at my records. I know it's a
8 lot more this year not because I'm a specialist, but
9 because everything has a lot more -- it's really gotten
10 out of hand.
11 MR. BREHL: Looking at U-9 --
12 MR. MESSING: Appearances.
13 THE WITNESS: Yes. In 2000 I had combined
14 mandatory settlement conferences appearances,
15 depositions and trials of 229. The following year I had
16 combined appearances of 192. But as of June 30th, 2002
17 I had 133 just for those 6 months.
18 BY MR. MESSING:
19 Q. And these appearances are reflected in Exhibit
20 Union 10, the master calendar?
21 A. Yes.
22 Q. And your appearances on average as a
24 A. I'll be honest. I don't know what they are
25 this year, but they're far more than they have ever been
1 in any other year.
2 Q. Is that because you're a specialist or for any
3 other reasons?
4 MR. BREHL: Asked and answered I think.
5 THE ARBITRATOR: He said he believes it's not.
6 MR. MESSING: I'll let his prior answer stand.
7 BY MR. MESSING:
8 Q. Now, did you work with specialists while you
9 were a range D staff attorney?
10 A. Yes, I worked both with Mr. Cannon as well as
11 with Mr. Pickering.
12 Q. Did you work on many cases with them or did you
13 work independently on your cases as a range D?
14 A. I worked my cases independently. But there
15 were several cases where we were co-counsel. I'm sorry.
16 Strike that. We weren't co-counsel. We were defending
17 separate claims made by the same injured worker.
18 Q. Were you representing different employers?
19 A. Exactly.
20 Q. Okay. And other than those type of cases, you
21 testified that you were familiar with Mr. Pickering and
22 Mr. Cannon's workload over the past 3 years?
23 A. Somewhat familiar, yes.
24 Q. Okay. Through your discussions with them?
25 A. Mr. Cannon and I were very close friends, so we
1 were constantly talking about our cases. Mr. Pickering
2 less so, but Mr. Pickering was always sharing with us
3 his war stories.
4 Q. Okay. Did you form an opinion of the -- of
5 whether or not the cases that you were handling were
6 similar to the one -- strike that.
7 The cases that you were handling as a range D,
8 did you form an opinion as to whether they were similar
9 to the cases that Mr. Pickering was handling as a
11 MR. BREHL: I'm going to object to that. I
12 don't think we have enough foundation for that question
13 at this point.
14 THE ARBITRATOR: I think I'll sustain that.
15 BY MR. MESSING:
16 Q. Did you have occasion to, yourself, review
17 Mr. Pickering's cases on occasion?
18 A. Sure. When he would go on vacation Mr. Estrada
19 would -- usually would rotate coverage either for his
20 appearances or for his actual mail. So I mean there is
21 a couple cases of Mr. Pickering's where I did points and
22 authorities, I did a trial. Mr. Vargas probably did
23 more of that than I did for Mr. Pickering. I mean a
24 couple times I went into his office and cleaned out his
25 desk, I stamped all his mail and saw what was going on.
1 Q. So you covered for Mr. Pickering on cases when
2 you were a D and he was a specialist?
3 A. Correct.
4 Q. You responded to mail on cases that he was
6 A. Correct. And did points and authorities.
7 Q. Did you make appearances in cases that he had
8 while you were a D and he was a specialist?
9 A. Yes.
10 Q. And in addition to that, you discussed cases
11 with him that he was handling while you were a D and he
12 was a specialist?
13 A. Yes.
14 Q. Okay. Did you form an opinion as to whether or
15 not the cases that you were handling were similar to the
16 ones that Mr. Pickering was handling at the time?
17 A. Yes.
18 Q. And what was your opinion?
19 A. I believe that they were fairly similar. I
20 mean some were the same cases.
21 Q. Okay. How did his caseload compare to yours?
22 A. I think his was -- in 2002 I think his caseload
23 was larger than mine.
24 Q. Okay. By a lot?
25 A. No, I wouldn't say a lot, but I think it was
1 larger. And I'm assuming that's because I turned my
2 cases over faster than he does.
3 Q. What do you mean by turn your cases over?