On September 21, 2011, the Appeals Board initiated an action against lien hearing representative Daniel Escamilla citing 11 cases in which Mr. Escamilla was sanctioned for misconduct, which demonstrated a pattern of behavior with no attempt to reform. Several of the example cases reflect sanctions for verifying and filing a frivolous petitions for reconsideration that were totally without merit.
Workers’ compensation administrative law judge (WCJ) David Hettick was appointed to act on behalf of the Appeals Board as the hearing officer to conduct prehearing conferences and take testimony. There were five prehearing conferences and on June 5, 2012, WCJ Hettick conducted an evidentiary hearing at which Mr. Escamilla testified, documentary evidence was introduced and witness declarations were submitted. At Mr. Escamilla’s request, a second hearing took place on September 24, 2012, before the Commissioners of the Workers’ Compensation Appeals Board sitting en banc. Despite the fact that Mr. Escamilla did not comply with orders regarding the timing of his submission of evidentiary exhibits and witness declarations. Because of the seriousness of these proceedings, the WCAB considered all of the exhibits and declarations offered by Mr. Escamilla. These documents include pleadings filed by Mr. Escamilla in the underlying cases in which sanctions were ordered, as well as the declarations of Michael Smalley, David M. Bautista, Lori Milas, Nathan Deschnes, David E. Bresler, Thomas Hewko, and Edward Wood.
The authority for a nonattorney representative to appear in workers’ compensation proceedings is conferred by section 5700, which states that a party may be represented “by attorney…or by any other agent…” and by section 5501, which states that an application may be filed by an applicant’s “attorney….or other representative authorized in writing.” As explained by the Supreme Court, the rationale for allowing lay representation of litigants in WCAB proceedings was “that numerous claimants for compensation are indigent and their claims are of such character and the compensation allowed by the Commission is so small as not to justify the engagement or service of a member of the bar, and that without the right to have a lay representative the claimant would ofttimes be unrepresented.” (Eagle Indem. Co. v. Industrial Acc. Com. (Hernandez) (1933) 217 Cal. 244, 249.) However, the Court also recognized that the use of lay representatives could result “in inexperienced and inexpert advice and assistance to a deserving claimant to the latter’s detriment.”
The Appeals Board is vested with the power under section 4907 to remove, deny, or suspend the privilege of a nonattorney hearing representative appearing before the WCAB after a hearing for “good cause.” Given hearing representatives’ lack of legal education and training, and given that they are not held to the same standard of care as licensed attorneys for purposes of malpractice or breach of fiduciary duty section 4907 is an important bulwark for protection of the public and the WCAB adjudicatory system. “Good cause” is a term that frequently appears in statutes and contracts and dozens of California cases have expounded upon its meaning. “Good cause” essentially connotes “a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power.” Good cause means “real circumstances, substantial reasons, objective conditions, palpable forces that operate to produce correlative results, adequate excuses that will bear the test of reason, just grounds for action, and always the element of good faith.”
Based upon the above, the WCAB in the case of In Re Daniel Escamilla (En Banc) concluded that “Mr. Escamilla has repeatedly violated our regulations, misrepresented facts either intentionally or with reckless disregard for the truth, filed frivolous petitions and engaged in other sanctionable conduct in violation of section 5813 and WCAB Rule 10561. He has been warned about and sanctioned for his behavior repeatedly. In two of the cases cited in the NOH, Mr. Escamilla was sanctioned the maximum amount of $2,500 and in one case he was ordered to pay fees and costs to opposing counsel in excess of $44,000.”
“Mr. Escamilla’s conduct has wasted valuable court time, delayed proceedings, burdened the Appeals Board with frivolous petitions, inconvenienced other parties and exposed his clients to monetary sanctions. Even though Mr. Escamilla has been sanctioned repeatedly, he persists in engaging in a pattern of conduct which evidences no intent to reform. Thus it is apparent that sanctions are ineffective and consequently we exercise our authority under section 4907.”
The WCAB ordered that Mr. Escamilla be suspended from appearing before the Workers’ Compensation Appeals Board as a hearing representative on behalf of any party or lien claimant for a period of 90 days. During this time Mr. Escamilla is prohibited from performing any acts in furtherance of representation of clients before the WCAB including, but not limited to, drafting and/or filing pleadings or other documents before the WCAB, negotiating and settling claims relating to workers’ compensation proceedings, appearing at depositions, appearing at WCAB hearings, and engaging in discovery or responding to discovery requests. This suspension will commence 45 days after the date of the filing of this order.