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Petition for Removal Prevents Out-of-State Adjuster from Appearing at Trial

By A.J. Driscoll


The case of Jaime Simmons v. Just Wingin’ It, Inc. (2017) was defended by associate attorney, A.J. Driscoll, out of our Fresno Office. Temporary disability benefits were at issue at a Mandatory Settlement Conference at the Stockton Workers’ Compensation Appeals Board. At the MSC, the parties could not settle the issue requiring a Trial.

During the MSC applicant attorney’s representative made a motion for the adjuster to be ordered to appear at Trial to testify. The representative argued live testimony was necessary to assess the credibility of the adjuster and the benefit payments made in the case. Over defense objections, the adjuster was ordered to appear at Trial to testify. The handling adjuster was located out of the state. Despite multiple objections and requests for alternative testimony, the hearing ended with an order form the WCJ for the adjuster to appear at Trial.

Following the hearing and order to appear, a timely Petition for Removal was drafted by Mr. Driscoll. In this Petition, Mr. Driscoll argued the defense would suffer substantial harm by requiring an out of state adjuster to appear where there are other means available for testimony, including but not limited to telephonic (Court Call) or skype related devices.

The Petition for Removal was met with a recommendation for denial authored by the MSC Judge. Finding against the recommendation report of the MSC Judge, the WCAB panel of commissioners found the witness should be allowed to testify via "alternative means". In support of the WCAB decision, the commissioners cited Code of Civil Procedure sec. 2025.310 and California Rule of Court rule 3.1010, which allow for the taking of depositions electronically. The commissioners used this as guidance to determine that it was not necessary for the adjuster to be present at Trial. "

Following the Removal, the temporary disability issue was settled informally, eliminating the need for a Trial. Yrulegui & Roberts prides itself on aggressive representation of its clients, as evidenced by the WCAB panel ruling in this case.


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