Workers' Compensation

Interview with WCJ Frank Hsu Yen, Pomona: A New View and Venue

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February 2024

Interviewed by the Honorable Therese Da Silva, Workers’ Compensation Judge, Oakland District Office of the WCAB

Judge Frank Hsu Yen has logged almost two years as a Workers’ Compensation Judge (WCJ) for the Division of Workers Compensation (DWC) in Pomona.  Prior to his appointment, Judge Yen was a staff attorney for State Compensation Insurance Fund in Pleasanton for eight years where he made appearances at DWC Oakland.  When Judge Yen was ready for a career change, he made the decision to return to Southern California after spending over a decade in the Bay Area. 

You transitioned from north to south and urban to suburban when you became a WCJ.  What was the biggest change for you?

The biggest change for me wasn’t so much the geography, although I do miss the wonderful nature of the Bay Area and looked forward to the great Asian food of San Gabriel Valley.  Rather, it was a shift in perspective from being an attorney to thinking like a judge.  As an attorney, my job was to advocate for a position and to argue for the correctness of my client. The conclusion to my argument was pre-written so to speak and it was up to me to tenaciously explain to my opposing counsel why my line of reasoning was persuasive and sound. Likewise, an equal amount of effort had to be expended in the communication to and education of my own client. 

However, when I became a judge, it was almost as if an intellectual burden was lifted.  My job was to study and weigh the facts.  The basis of exercising judgement is being open to the facts with no conclusion being pre-ordained.  This provided a level of moral and intellectual consistency that I found liberating.  From this perspective, my job here at DWC Pomona is fantastic.  But I do miss the great Dim Sum in Oakland Chinatown.

Have you been able to transfer what you learned in one venue to a new venue?

The Labor Code and case law sets forth the same standards for judging workers’ compensation cases, but we do have rules on venue and not all venues are the same.  Generally, Labor Code section 5501.5(a) provides that proper venue is an injured worker’s county of residence on the date of filing, not on the date of injury.  In the alternative, proper venue is the county where the injury occurred or the county where the injured worker’s attorney maintains their principal place of business.  As many attorneys are working from home, it is tempting to shop for venue.  However, first and foremost, consideration must be given to where the injured worker is now residing and practical considerations, such as the need for an injured worker to travel to the DWC for an in-person trial.   Secondary to the process is a need for the DWC to be able to properly and accurately allocate resources to get things done quickly and efficiently. 

I was surprised that in my current venue, I encountered many more cases involving Asian Americans who required language interpreters in a wider variety of Asian dialects.  As an immigrant myself who speaks Mandarin, I have had the occasion to use my native language skills as a judge.  Sometimes, being able to speak someone’s language assures them that there is no misunderstanding and helps alleviate any fears of bias.  I recall recently discussing a death case where there was a serious risk of a take nothing.  Clear communication in applicant’s home language was helpful in bridging the cultural gap and cultural expectations regarding the role of government and private insurance in California versus their home country.

Ultimately, I feel all good judges use their unique interpersonal skills to empathize and engage with injured workers.  Though I am an advocate for procedure and rules, empathy does matter.  While rules make things go faster, empathy, on the other hand, takes time.  When humanity can be balanced with procedure, we can often reach an optimal win-win outcome for all parties involved.      

Do you have tips on communication skills for practitioners?

Yes, practitioners should think in terms of the psychology of persuasion.  Attorneys are being paid not only for their knowledge of law but for their ability to persuade. I think people should remember that in a small community, reputation matters even more and that judges do share experiences.  Ad hominem attacks and personal accusations really have no part in our hearings. They are unpersuasive and worse yet could weaken your client’s case.   I think of the Roman stoics when it comes to such personality conflicts and remind myself that we often suffer more in our imagination than in reality.  As such, practitioners should always take personal responsibility in making sure their behavior has no negative bearing on their client’s outcome.

With the rise of digital communication and everyone conducting business by email, it is important to remember that emails do not reflect tone and often parties will project any lingering hostile feelings as tone into an email. As such, always review emails for tone and keep any content professional and courteous.  It is also advisable to not send unsolicited or unnecessary emails to judges, particularly when said emails seek to attack opposing counsel.  We judges don’t readily forget past dealings and even may share information with colleagues to see if a pattern of bad behavior is developing.  Ultimately, if not from an ethical perspective, practical practitioners should remember that a bad reputation is bad for business.  

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