By Therese DaSilva, Workers’ Compensation Judge, Oakland District Office of the WCAB
Judge William E. Gunn is the presiding judge of the DWC Special Adjudication Unit (SAU) which has its headquarters at the Workers’ Compensation Appeals Board (WCAB) in Van Nuys. In 2014, Judge Gunn started his tenure as a workers’ compensation judge at the Fresno WCAB. Before coming to the Fresno Board, Judge Gunn worked as defense counsel for over a decade. Before becoming a defense attorney, he worked as an applicant’s attorney for about nine years. Judge Gunn is also a retired Deputy Sheriff for Fresno County. Judge Gunn had taken the bar and passed it but he really liked being cop. Then, at one point, he had a workers’ comp claim and hired an attorney. The attorney ended up offering Judge Gunn a job and he traded in his uniform for a suit and tie.
Judge Pauline Suh has been a workers’ compensation judge at the San Jose Board since 2016. Before becoming a judge, she was a defense attorney for almost 15 years. Judge Suh, a dedicated foodie, was raised in the Bay Area and resides in Silicon Valley with her husband and son. In addition to a full caseload of trials and conferences, Judge Suh has taken on extra responsibility volunteering as a judge for the SAU since February 2018.
Recently, we met on LifeSize to discuss the SAU.
What is the main purpose of the Special Adjudication Unit?
Judge Gunn: The SAU was started in April 2017 in response to the enactment of anti-fraud statutes Labor Code sections 4615 and 139.21. Labor Code 4615 created an automatic stay on liens for medical providers who are criminally charged. When a provider is convicted of a crime, Labor Code section 139.21 creates a process for the DWC Administrative Director (AD) to suspend a provider from the workers’ compensation system and also provides a means to appeal the suspension. If suspended, it is presumed that the provider’s liens arose from the conduct giving rise to the suspension and are not payable. This is a rebuttable presumption. The liens of the suspended provider are then consolidated and adjudicated in a special lien proceeding to allow the provider an opportunity to rebut the presumption. If rebutted the liens can be adjudicated on the merits. The SAU handles the suspension appeals as well as consolidation and adjudication of the provider’s liens.
As the first Presiding Judge of the SAU, what were the challenges you faced?
Judge Gunn: The number of cases involved. At the Fresno Board, I dealt with the same sort of liens and most of the same players, but the magnitude cannot be compared. Since the inception of the SAU, I estimate there have been over 400 suspensions, each of which is afforded access to the appeals process. Most consolidations have involved liens filed in literally thousands of cases. Off the top of my head, the largest consolidation involved liens filed in over 20,000 ADJ cases. Think about this: if we have 20,000 cases involved, any one ruling could in theory have 20,000 petitions for reconsideration! Plus, there was not a lot of guidance in the regulations or Labor Code on how we were to handle litigation so we were forced to be very innovative. Given the volume, eight judges are assigned on a full or part time basis to the SAU. The SAU judges are all located at Boards around Southern California and they also handle a regular Board calendar. However, there is a need to hear these cases all over the state and so the SAU has a group of volunteer judges including Judge Suh.
Judge Suh: My most recent SAU suspension has over 200 cases to be consolidated. I guess that’s considered a small case. (Laughs.) I attended training for the SAU in February of 2018 along with about twenty other judges. To date, I always refer to Judge Gunn’s training materials. He is a great supervisor, and such a hard worker. If anything, he forgets holidays and weekends because he might not take any days off. I have to hand it to Judge Gunn and Chief Judge Levy who have done an impressive job in putting this together from scratch including implementing SAU in EAMS.
Judge Gunn: Well, I do answer my phone, even when it’s not work hours. You gotta be there for them.
Procedurally what is involved?
Judge Gunn: TheAD issues a notice of suspension against a provider who has been criminally charged. If the provider objects, the matter is assigned to SAU and a judge is assigned. The hearing location is determined based on the provider’s location for efficiency. That’s where the volunteer judges come into play if a case needs to be heard outside of Southern California. Counting the volunteer judges, we have judges in every existing Board throughout the state.
As with all trials, the SAU strives for fairness. All the parties are given the right to be heard, but you can imagine, with thousands of cases associated with each provider, I don’t need multiple people to tell me the same thing. So we have devised a system of lead attorneys and liaison attorneys to represent the various interests of each class involved in any one case. Anyone can raise any argument, but it needs to be coordinated in one document and one filing. It’s modeled on class action lawsuits and complex litigation rules that we looked at for guidance to manage the litigation.
In suspension hearings the assigned judge makes a recommendation on the suspension based on the hearing and evidence. The Administrative Director is represented by an attorney from the DWC Anti-Fraud Unit. The AD can accept, reject or modify the suspension based on the judge’s recommendation and issues an order. Any appeal of the AD’s order is handled by the Court of Appeals.
Judge Suh: The process is similar to a regular lien trial, but the volume is bigger. Judges are driven by evidence, we expect lien claimants to produce evidence to rebut the presumption.
Judge Gunn: We will be fair to both sides, and we are interested in hearing your evidence but not doing the work for you. As it is, it is a challenge identifying all cases and necessary parties. Then there is designation of lead attorneys and liaisons and formulate issues. Cases are also complicated due to the number of different lien entities involved and determining ownership or control of the lien entities. After a matter is submitted to SAU, it may seem that nothing is happening for a while, but the unit secretary has to figure out how to serve 300 parties, some parties have different names. A huge percentage of my job is making these things work. The logistics of a large consolidation can be daunting and we are always looking at ways to make things work better.
Judge Suh: I am a stickler for following rules or procedure. You have to make your case. Attorneys who know me know that inattention to detail is one of my pet peeves. I am very impressed with the way the unit is run. The judge e-mail strings are entertaining and it is a tight knit group, always focused on how to improve.
How has the pandemic affected you?
Judge Suh: Even conducting regular hearings on LifeSize is challenging, so imagine how hard it is to manage with dozens of parties. The Boards across the state are doing a phenomenal job under the circumstances and credit is due to the preparation of the attorneys appearing who have made it easier for us judges. I personally am supporting small businesses once or twice a day by ordering food because I don’t know how to cook even though my mom used to own restaurants! My husband, son and I will do regular coastal drives hitting a lot of mom and pop restaurants in Half Moon Bay, Monterey, Watsonville. The best news it that I adopted Cannon, a Yorkshire terrier, during the lockdown who loves to attend court on my lap.
Judge Gunn: Sometimes, it’s a mystery who is talking on the conference line. I do miss the face-to-face interaction. But I do not miss commuting on the 405. (Laughs.)
Check out the Fraud Prevention and Suspension Activities page on the DWC webpage at https://www.dir.ca.gov/Fraud_Prevention/Suspension-List.htm