Javier Jimenez

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1 WORKERS’ COMPENSATION APPEALS BOARD 2 STATE OF CALIFORNIA 3 4 Misc. No. 257 5 6 IN RE: JAVIER JIMENEZ, 7 Respondent. 8 NOTICE OF INTENTION TO SUSPEND THE PRIVILEGE OF JAVIER JIMENEZ TO APPEAR AS A REPRESENTATIVE OF ANY PARTY BEFORE THE WCAB (Appeals Board En Banc) 9 10 11 NOTICE IS HEREBY GIVEN that the Appeals Board intends to suspend the privilege of Javier 12 Jimenez to appear in any proceeding as a representative of any party before the Appeals Board, or any of 13 its workers’ compensation administrative law judges (WCJs) for one hundred eighty (180) days pursuant 14 to Labor Code section 4907 for the reasons set forth below unless good cause is shown why his privilege 15 should not be suspended or further hearing should be provided, as set forth below. Notice is further given that any ordered suspension shall continue until there has been full 16 17 compliance with the sanction orders described below. FACTS SUPPORTING SUSPENSION OF THE PRIVILEGE 18 19 Over the last three years Mr. Jimenez has been sanctioned numerous times for engaging in bad- 20 faith actions or tactics that are frivolous or solely intended to cause unnecessary delay while acting for 21 lien claimants as their Labor Code section 5700 agent before the WCAB. 1 His misconduct has resulted 22 in the repeated imposition of sanctions against him and his clients and has injured other parties and 23 wasted judicial resources. 24 /// 25 26 27 1 Labor Code section 5700 provides in pertinent part: “Either party may be present at any hearing, in person, by attorney, or by any other agent…” 1 Sanctions have been imposed for knowingly proceeding to trial without necessary evidence, 2 repeatedly presenting meritless arguments, making a false statement of material facts in a petition 3 presented to the Appeals Board, impugning the integrity of the WCAB and WCJs, and other willful 4 failures to comply with statutory and regulatory obligations. 5 The circumstances under which Mr. Jimenez has been sanctioned and which support the 6 suspension of his privilege to appear, are set forth below. Electronic copies of all documents identified 7 below are available for review in the respective EAMS records of each case. 8 1) Torres v. Los Angeles Unified School District (ADJ362854/ADJ3049738): On or about 9 January 1, 2011, Mr. Jimenez was identified as a Labor Code section 5700 agent for representative 10 Innovative Medical Management (IMM), on behalf of lien claimant Universal Psychiatric Medical 11 Center (UPMC) and he appeared on behalf of UPMC at the lien trial on August 24, 2011. On November 12 2, 2011, the WCJ issued a decision that UPMC was not entitled to further reimbursement, and at that 13 same time gave notice of her intention to sanction IMM and UPMC for Mr. Jimenez’s actions and to 14 allow defendant attorney’s fees incurred “in preparation for trial,” explaining the reasons for the 15 proposed sanction in the accompanying Opinion on Decision in part as follows: 16 17 18 19 20 21 22 23 24 25 26 27 At the time of trial on August 24, 2011, Universal Psyche Med Center was represented by Mr. Javier Jimenez. Mr. Jimenez advised the Court that he was not an employee of Universal psyche. Further, Mr. Jimenez advised that he is not an employee of Innovative Medical Management which, pursuant to a Notice of Representation dated June 26, 2009, has authority to represent Universal Psyche. Mr. Jimenez provided no letter of representation on behalf of either entity. The legal aspects of the case were discussed with defendant pretrial. Mr. Jimenez advised the Court that he had no authority to settle with defendant in spite of the fact that it appeared that prosecution of the lien was frivolous. He also stated that he had advised Universal Psyche of the Court’s intention to issue sanctions for frivolous prosecution if appropriate. Defendant raised laches and the Statute of Limitations under Labor Code Section 4903.5 based on the fact that Universal Psyche did not file a lien until July 14, 2011. The lien, filed without actual signature by anyone, is in the sum of $3,920.00 although the bill provided at the time of trial is for $11,275.00 and indicates payment of $1,615.13 and ‘total adjustments’ of $924.73 for a balance of $8,735.14. There was no evidence provided at the time of trial for the discrepancy between the lien and the statement. Under Labor Code §5703, liens, if signed under penalty of perjury, are permissive as exhibits to be moved into evidence in addition to sworn testimony. In the instant matter, Universal Psyche provided neither a signed lien nor sworn testimony. IN RE: JAVIER JIMENEZ 2 1 The lien was filed almost three years after the above referenced Award, more than five years after the date of injury and more than three years after the last date of service in 2008. Mr. Jimenez had no response to these facts in pretrial discussions and proffered no evidence to address the failure of Universal Psyche to comply with statutory mandates. It was the impression of the Court that Universal Psyche was as indifferent to the law as it was to the threat of sanctions for frivolous prosecution of the claim… In the instant matter, defendant denied injury which arose out of and in the course of employment in connection with the dismissed case regarding the September 17, 2004 date of injury. It also denied the psyche claim added to the accepted right arm injury on September 21, 2005… Since all of the rights and obligations of a lien claimant are derivative of the applicant’s case, lien claimants have the same burden of proof on all benefit issues as would the applicant were he/she prosecuting the claim… In the instant matter, it is the opinion of the undersigned that lien claimant did not meet this burden… The exhibits do not address the basis for the treatment: there is no evidence of change of treating physician or request by the Primary Treating Physician for the treatment; there is nothing in the report of the Agreed Medical Examiner to support the treatment on an industrial basis. The undersigned is of the opinion that the treatment provided by Universal Psyche was neither reasonable nor necessary to cure or relieve from the effects of an industrial injury. The undersigned is also of the opinion that the prosecution of the lien was not reasonable as Universal Psyche provided nothing in the way of legally cognizable evidence to support its bill or the medical reports which are of little, if any, evidentiary value standing alone. As stated above, Universal Psyche presented no evidence on the legal issues raised by defendant. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 A response to the WCJ’s November 2, 2011 notice of intention that appears to be signed by 18 “R Beggan” for IMM on behalf of UPMC was filed on November 21, 2011. That same date, a petition 19 for reconsideration of the WCJ’s decision and notice of intention was filed, that appears to be executed 20 by a “Richard Beggan” for IMM on behalf of UPMC. On January 17, 2012, the Appeals Board denied 21 the petition for reconsideration for the reasons expressed by the WCJ in her November 22, 2011 Report 22 And Recommendation On Lien Claimant’s Petition For Reconsideration. The case returned to the trial 23 level. 24 On January 24, 2012, the WCJ issued an order in ADJ362854 imposing a $2,500 sanction against 25 IMM and UPMC and further ordering them to pay defendant $3,500.00 in attorney’s fees. In a petition 26 executed by an unidentified individual, IMM sought reconsideration of the sanction order on behalf of 27 itself and UPMC. Reconsideration was granted on March 30, 2012 in order to allow further study of the IN RE: JAVIER JIMENEZ 3 1 issues. On December 21, 2012, the Appeals Board panel issued its Decision After Reconsideration 2 rescinding the WCJ’s sanction order for procedural reasons, but admonishing IMM and the petition’s 3 author for “failing to identify the person that filed the present Petition for Reconsideration.” The case 4 was returned to the trial level for the WCJ’s further consideration of the proposed sanctions. 5 On January 2, 2013, the WCJ served another notice of intention to sanction IMM and UPMC for 6 Mr. Jimenez’s actions, again providing an explanation of the reasons for the proposed sanction, in part as 7 follows: 8 At the time of trial on August 24, 2011, lien claimant was represented by Innovative Medical Management with Mr. Javier Jimenez appearing. The legal issues of the case were discussed with the parties pretrial along with evidentiary offers of proof. Mr. Jimenez advised the Court that he had no authority to settle with defendant in spite of the fact that it appeared that prosecution of the lien was frivolous since none of the evidence offered and discussed addressed the legal issues sufficiently to meet lien claimant’s required burden of proof. The representative also stated that he had advised Universal Psyche of the Court’s intention to issue sanctions for frivolous prosecution if appropriate… Universal Psyche provided neither a signed lien nor sworn testimony [at trial]. At the time of trial, there was no evidence offered or in the Electronic Adjudication Management System of a prior lien, which was the basis for defendant’s raising the Statute of Limitations. Additionally, lien claimant originally argued entitlement to reimbursement because psyche treatment was for the compensable consequence of the physical injury in spite of the fact that applicant had signed Stipulations specifically dismissing any such contention… [L]ien claimant knew it could not meet its burden of proof prior to trial when defendant discussed the contents of the reports of Mark Greenspan, M.D., Agreed Medical Examiner, which are well reasoned and persuasive, and note with specificity that applicant suffered a relatively benign injury which required no surgery. He also concluded that she had no injury to her neck, right wrist and did not develop carpal tunnel syndrome as a result of industrial injury. He determined she was Permanent and Stationary when her Primary Treating Physician Dr. Sobol found her so in 2006, a year before treatment began at Universal Psyche. The exhibits offered by lien claimant could be given no weight…They do not address the basis for the treatment: there is no evidence of change of treating physician or request by the Primary Treating Physician for the treatment; there is nothing in the report of the Agreed Medical Examiner to support the treatment on an industrial basis as a compensable consequence of the physical injury. Therefore, the undersigned is of the opinion that the prosecution of the lien was frivolous and unreasonable... 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 /// IN RE: JAVIER JIMENEZ 4 1 No objection to the WCJ’s notice of intention was made by Mr. Jimenez, IMM or UPMC, and on 2 February 1, 2013, the WCJ jointly and severally ordered IMM and UPMC to pay a $2,500.00 sanction 3 for the reasons expressed in the December 27, 2012 notice of intention. Thereafter, on March 4, 2013, 4 the WCJ ordered IMM and UPMC to pay defendant’s reasonable attorney’s fees of $3,500.00. 5 Neither IMM nor UPMC sought reconsideration or review of either sanction order. IMM paid the 6 WCJ’s February 1, 2013 $2,500.00 sanction through its check number 20665 on or about July 22, 2013. 7 There is no evidence that the $3,500.00 in defendant’s attorney’s fees and costs that the WCJ ordered 8 IMM and UPMC to pay on March 4, 2013, has been paid. 9 2) Enriquez v. American Racing Equipment (ADJ2610300): Mr. Jimenez represented lien 10 claimant Joyce Altman Interpreters (Altman) in this case. On December 30, 2013, the WCJ issued a 11 notice of intention to sanction Mr. Jimenez and Altman and other lien claimants and their representatives 12 that appeared at an earlier trial for failing to present evidence showing that the lien claims were not 13 barred by the statute of limitations, and because they “failed to provide relevant and probative evidence 14 to support the reasonableness and necessity of the services rendered and reasonableness of the charges,” 15 that they “knew or should have known that their insistence on trial without relevant and probative 16 evidence is frivolous,” and that their activities and those of their hearing representatives “were egregious 17 and frivolous.” 18 Mr. Jimenez did not challenge the notice of intention and the WCJ jointly and severally 19 sanctioned Mr. Jimenez and Altman $2,500.00 on April 24, 2014, and May 2, 2014. Neither 20 Mr. Jimenez nor Altman sought reconsideration or judicial review of the sanction. Altman paid the 21 $2,500.00 sanction by way of check number 15123 on or about June 16, 2014. 22 3) Vargas v. Koosharen dba Select Staffing (ADJ8152111): Mr. Jimenez represented Altman at 23 a lien trial on June 3, 2014. The events that occurred at that time are set forth in the WCJ’s Opinion on 24 Decision that accompanied his June 19, 2014 order disallowing the lien claim, as follows: 25 26 27 Lien claimant proffered no evidence that applicant suffered any injury at work. Further, lien claimant produced applicant to testify that she never reported any injury at work, and offered no evidence of notice to the employer of any such claim. IN RE: JAVIER JIMENEZ 5 1 2 3 4 5 6 7 8 9 10 11 12 13 Defendants issued notice to applicant of their Medical Provider Network on 04/17/2012. This is the only indication in evidence of knowledge of the employer of a claim. Lien claimant’s witness, applicant, testified that she responded to a television advertisement after she was laid off. Someone came to her house, filled out papers and scheduled an appointment with a doctor. The election of a treating physician came from applicant’s attorney on 12/28/2011, prior to any demonstrated notice to the employer or carrier. It was also prior to the filing of the Application for Adjudication of Claim dated 01/17/2012. Therefore none of the interpreting services furnished by lien claimant were for treatment that would be reimbursable by defendant, and under these circumstances defendant has no liability for the lien of Joyce Altman Interpreting… Lien claimant was fully aware of the facts and circumstances surrounding the genesis of this claim, and the fact that there was no evidence to support injury AOE/COE. Lien claimant must be constructively aware of the content of applicant’s testimony that it elicited at trial. Specifically, direct examination revealed that there was no report of injury to the employer until after the treatment (for which lien claimant interpreted) began at the instigation of attorneys prior to the filing of the claim. 14 As part of his June 19, 2014 decision, the WCJ gave notice of intention to jointly and severally 15 sanction Altman and Mr. Jimenez $1,500.00 for being “fully aware at the time of trial of the facts and 16 circumstances surrounding the genesis of this claim, and the fact that there was no evidence to support 17 injury AOE/COE and nevertheless proceed to trial…” 18 Mr. Jimenez made no response to the WCJ’s June 19, 2014 notice of intention and an order 19 jointly and severally sanctioning Altman and Mr. Jimenez in the amount of $1,500.00 issued on July 24, 20 2014. Mr. Jimenez did not seek reconsideration of the sanction, and Altman paid it by way of check 21 number 15483 on or about August 11, 2014. 22 4) Nunez v. Golden Gate Steel (ADJ2826351): Mr. Jimenez represented lien claimant Orthogear 23 at a lien conference on January 8, 2014, as its Labor Code section 5700 agent with representative 24 Medical Recovery Solutions, LLC, (MRS). At the conference the WCJ ordered that Orthogear receive 25 $400.00 in full satisfaction of its lien. 26 “waived…testimony and…submitted the issue of the lien of Orthogear on the present record.” 27 The order states in pertinent part that the parties On January 29, 2014, Joann Veitia of MRS and Mr. Jimenez for MRS, all on behalf of Orthogear, IN RE: JAVIER JIMENEZ 6 1 executed, verified and filed a petition for reconsideration of the WCJ’s January 8, 2014 order to pay the 2 lien, contending that Mr. Jimenez had not waived any rights and that Orthogear wanted a trial of the lien 3 claim. 4 On January 31, 2014 the judge acted under Appeals Board Rules of Practice and Procedure, Rule 5 10859 to rescind the January 8, 2014 Order and set the lien for trial. The WCJ also issued a notice of 6 intention to sanction Orthogear, MRS, and Mr. Jimenez $2,500.00 each, stating that Orthogear, MRS, 7 and Mr. Jimenez “made incongruous representations…causing unnecessary delay.” 8 sanctions were set to be heard at the trial of the Orthogear lien. The proposed 9 On February 24, 2014, Ms. Veitia and Mr. Jimenez for MRS on behalf of Orthogear executed, 10 verified and filed a petition for or reconsideration of the WCJ’s January 31, 2014 order or removal of the 11 case to the Appeals Board. Among other things, Mr. Jimenez claimed in the petition that he did not 12 waive any rights at the October 29, 2014 conference and the “WCJ makes arbitrary and capricious; [sic] 13 unsupported allegations…” in his Report (6:2-3), that the prior notice and orders contain “deliberate 14 omission of any reference to lien claimant’s arguments…” (8:8), and that Mr. Jimenez was “duly bullied 15 into submitting to [the WCJ] pushing through to Defense’s benefit (yet another)….” (10:12-13, 16 parenthesis in original.) On April 22, 2014 the petition for reconsideration was dismissed because it did 17 not challenge a final order, and removal was denied. 18 Orthogear’s lien and the WCJ’s intention to impose sanctions were tried on June 10, 2014 and 19 October 14, 2014. 20 Mr. Jimenez and others testified and numerous documents were received into evidence. 21 On December 2, 2014 the WCJ found that Orthogear should be “reimbursed” for certain services, 22 but he jointly and severally sanctioned Mr. Jimenez, MRS and Ms. Veitia $2,500.00 for the reasons 23 expressed in the notice of intention. 24 On December 18, 2014, Ms. Veitia filed a petition on behalf of herself, MRS, and Orthogear 25 seeking reconsideration of the WCJ’s decision. In the petition Ms. Veitia “profusely apologized” for the 26 “misstatements made against the WCJ” and stated that she relied to her detriment on information 27 provided by Mr. Jimenez. IN RE: JAVIER JIMENEZ 7 1 2 On March 10, 2015 the Appeals Board affirmed the WCJ’s sanction orders. No petition was filed challenging that decision and the WCJ’s December 2, 2014 sanction order is now final for all purposes. 3 On May 26, 2015 Deputy Commissioner Dietrich notified Mr. Jimenez and Ms. Veitia that the 4 failure to comply with the December 2, 2014 sanction order was grounds for suspending or removing the 5 privilege to appear before the WCAB as a Labor Code section 5700 agent. 6 Payment of the ordered sanctions has not been received. 7 5) Beltran v. Robert Iest (ADJ3319996): Mr. Jimenez represented lien claimant “L.A. Ortho 8 Hospital” at the lien trial on December 5, 2012, as shown by the Minutes of Hearing (MOH) from that 9 date. The defendant contended at trial that the treatment underlying the lien claim was not authorized to 10 be provided within its MPN, as evidenced by the notices and correspondence received into evidence at 11 the trial. Included with the evidence offered by Mr. Jimenez were bills “filed by BCP Collection [BCP].” 12 (MOH, 2:18-19.) Mr. Jimenez did not clarify at trial that BCP was the assignee of a lien claim of “Los 13 Angeles Orthopedics,” the entity identified in the MOH as “L.A. Ortho.” 14 On January 14, 2013, the WCJ issued a decision finding that L.A. Ortho Hospital “provided no 15 admissible evidence at the time of [the December 5, 2012] trial to carry the burden of proof as to the 16 reasonableness and necessity of the treatment or the reasonableness of the charges.” Based upon that and 17 her other findings, the WCJ disallowed the lien claim and gave notice of intention to sanction L.A. Ortho 18 Hospital $2,500.00. 19 On February 28, 2013, the WCJ amended the notice of intention to identify Mr. Jimenez as jointly 20 and severally liable with L.A. Ortho Hospital for the proposed sanction and to allow defendant its 21 attorney’s fees and costs as part of the sanction. 22 On March 27, 2013, the WCJ issued a second amended notice of intention, explaining that BCP 23 “was not identified on the record as the agency representing lien claimant,” that mail sent to “L.A. Ortho 24 Hospital” had been returned with no notice of change of address, and that there was no Notice of 25 Representation on file, causing increased costs and delay. The WCJ again amended the notice of 26 intention to identify L.A. Ortho Hospital, BCP and Mr. Jimenez as jointly and severally liable for a 27 proposed $2,500.00 sanction for the reasons set forth in the original January 14, 2013 notice. IN RE: JAVIER JIMENEZ 8 1 On or about April 19, 2013, Ms. Veitia for MRS on behalf of BCP and Mr. Jimenez petitioned for 2 reconsideration of the WCJ’s second amended notice of intention. In the 19 page petition, it was stated 3 that the original lien claim was filed by Los Angeles Orthopedics, but that BCP had acquired the lien and 4 BCP was, in fact, represented in the case at the trial by MRS through Mr. Jimenez, notwithstanding that 5 there was no record of that representation. In essence, the petition claimed that it was the WCJ’s error in 6 misidentifying the lien claimant that caused BCP and MRS to not be properly served with the WCJ’s 7 January 14, 2013 decision and notices concerning the proposed sanctions. 8 On June 13, 2013, the Appeals Board issued its Opinion And Order Dismissing Petition For 9 Reconsideration dismissing the April 19, 2013 petition because it challenged a notice of intention and not 10 a final order, decision or award. (Lab. Code, § 5900.) The case returned to the trial level. 11 On July 12, 2013, the WCJ issued a nunc pro tunc order substituting BCP for “L.A. Ortho” where 12 referenced in the record. At the same time she issued a third amended notice of intention to jointly and 13 severally sanction BCP, MRS and Mr. Jimenez in the amount and for the reasons set forth in the original 14 January 14, 2013 notice of intention. No response was made to the WCJ’s amended notice of intention. 15 Instead, on or about August 1, 2013, Ms. Veitia for MRS on behalf of BCP and Mr. Jimenez filed a 20 16 page petition that again sought reconsideration of the notice of intention to impose sanctions and 17 questioning the extent of the WCJ’s nunc pro tunc order substituting BCP for record references to L.A. 18 Ortho. 19 20 21 22 On September 13, 2013, the Appeals Board issued an order dismissing the petition because it did not challenge a final order, decision or award. (Lab. Code, § 5900.) The case returned to the trial level. On October 13, 2013, the WCJ issued an order jointly and severally sanctioning Mr. Jimenez, MRS and their client BCP $2,500.00 for the reasons set forth in the July 12, 2013 notice of intention. 23 On or about November 14 2013, Mr. Jimenez with Ms. Veitia and MRS on behalf of themselves, 24 and BCP, petitioned for reconsideration of the WCJ’s October 13, 2013 sanction order. Reconsideration 25 was granted on January 13, 2014, to further study the issues. 26 27 On July 18, 2014, the Appeals Board affirmed the WCJ’s October 13, 2013 sanction order, and removed the case to itself to propose the imposition of additional sanctions, writing as follows: IN RE: JAVIER JIMENEZ 9 1 2 3 4 5 6 [L]ien claimant has been seeking to relitigate the same issues with repetitive petitions [now] including accusations that the WCJ has engaged in ‘incredible fabrication’ (Petition page 12). Such unsubstantiated accusations of ‘fabrication’ by the WCJ, a very serious matter if true, appear to us to be untrue and are sanctionable as bad faith actions or tactics. Lien claimant failed to object to the WCJ’s Notice of Intention to Issue Sanctions. Instead, lien claimant objected to defendant’s Bill of Particulars regarding defendant’s claim for fees and costs related to lien claimants prior frivolous actions. Lien claimant has now filed its third petition arising from the lien trial. In fact, there has been no [final] Order regarding any claim for fees and costs by defendant. As such, applicant’s Petition, now before us, is frivolous and subject to sanctions. (5:11-19.) 7 8 On or about August 1, 2014, Mr. Jimenez with Ms. Veitia and MRS on behalf of themselves, and 9 BCP, filed an objection to the sanction proposed by the Appeals Board. The objection acknowledged 10 errors by Mr. Jimenez and others but claimed they were “inadvertent,” and it continued to be asserted 11 that the WCJ engaged in “fabrications.” (4:20-21.) 12 On November 19, 2014 the Appeals Board panel issued an order imposing additional sanctions of 13 $1,500.00 jointly and severally against Mr. Jimenez, MRS, Ms. Veitia and their client BCP, for the 14 reasons expressed in the July 18, 2014 notice of intention, and writing further as follows: 15 16 17 [P]etitioners repeat the unsubstantiated accusations of ‘fabrications’ [by the WCJ], again seek to re-litigate the same issues [as in earlier petitions], and fail to demonstrate basic competency with respect to the rules of litigation and conduct before the Workers’ Compensation Appeals Board. 18 The case returned to the trial level. 19 On December 18, 2014, the WCJ issued an Order To Pay Attorney Fees, directing Mr. Jimenez, 20 MRS and their client BCP to jointly and severally pay defendant’s attorney’s fees in the sum of 21 $2,322.50, which was served December 24, 2014. 22 23 24 25 26 27 On or about January 13, 2015, Ms. Veitia on behalf of herself, MRS, BCP, and Mr. Jimenez, petitioned for reconsideration of the WCJ’s December 18, 2014 order to pay attorney’s fees. On March 12, 2015, the Appeals Board panel denied reconsideration for the reasons expressed by the WCJ in her report, and writing further as follows: The conduct exhibited by petitioners and hearing representative Veitia in this case and in others is of significant concern to this panel, and leads us to refer the concern to the Appeals Board for its consideration on whether to IN RE: JAVIER JIMENEZ 10 1 2 remove or suspend the privileges of Medical Recovery Solutions, LLC, Javier Jimenez and JoAnn Veitia from appearing in any proceedings before the WCAB as provided in Labor Code section 4907. (2:9-13, footnote omitted.) 3 4 5 6 7 8 9 The $2,500.00 sanction imposed by the WCJ on October 21, 2013 was not further challenged, and it was paid by Atlantis Health Management, Inc. check number 5813 on or about March 23, 2015. The $1,500.00 sanction by the Appeals Board on November 19, 2014 was not challenged, and it was also paid on or about March 23, 2015 by BCP check number 2520. There is no record of payment of the $2,322.50 in defendant’s attorney fees and costs as ordered by the WCJ on December 18, 2014 as part of the sanctions in this case. 10 6) Tate v. Los Angeles Unified School District (ADJ1298503/ADJ4673153): Mr. Jimenez 11 represented lien claimants Frontline Medical Associates (Frontline) and Firstline Health (Firstline) at a 12 lien conference on October 29, 2014, as their Labor Code section 5700 agent with representative 13 Controlled Health Management (CHM). At the conference, the WCJ noted that the liens were for 14 treatment provided outside of defendant’s MPN and which was unauthorized. Mr. Jimenez stipulated 15 that his clients had no evidence to offer to rebut that point, and agreed to dismissal of the liens. The lien 16 claims were then ordered dismissed by the WCJ on that date based upon the written stipulations. 17 On November 14, 2014, Jerome Welch for CHM petitioned for reconsideration of the October 29, 18 2014 dismissal order on behalf of Frontline and Firstline, contending that Mr. Jimenez had not agreed to 19 the dismissal and that the Court acted without his consent. The petition included no proof of service 20 upon Mr. Jimenez. 21 The WCJ addressed the petition on page two of her November 20, 2014 Report And 22 Recommendation On Petition For Reconsideration and describes what, in fact, occurred at the 23 October 29, 2014 conference, as follows: 24 25 26 27 Defendant raised treatment outside the Medical Provider Network (MPN) in response to the lien claims and provided 35 pages of documents including copies of notice and documentation of treatment to Mr. Jimenez along with a letter signed by applicant’s attorney dated April 19, 2007 selecting treatment with a [MPN] physician. Mr. Jimenez advised the Court he could list no documents for trial as exhibits relevant to entitlement to treat outside the [MPN]. During discussion, Mr. Jimenez acknowledged IN RE: JAVIER JIMENEZ 11 1 the potential for sanction should his client insist on trial without evidence, advised the Court that he had discussed this issue with lien claimants and thereafter, signed the stipulations…dismissing the lien[, which included agreement to dismissal of the liens]. 2 3 4 On January 15, 2015, the Appeals Board denied reconsideration of the October 29, 2014 5 dismissal order because there was no evidence that medical treatment outside of defendant’s MPN was 6 compensable and because Mr. Jimenez agreed to the dismissal as shown by his signature on stipulations. 7 The case was returned to the trial level. 8 Upon return, defendant petitioned for recovery of attorney’s fees as sanctions. On February 20, 9 2015, the WCJ issued a notice of intention to sanction Mr. Jimenez, CHM and their clients Frontline and 10 Firstline “pursuant” to the January 15, 2015 decision of the Appeals Board. The WCJ further ordered 11 defendant to present a claim for attorney’s fees as sanctions. 12 On or about March 13, 2015, Jerome Welch for CHM, Frontline, and Firstline, presented an 13 objection to the WCJ’s notice of intention to sanction. The objection disputed the Appeals Board’s 14 January 15, 2015 decision upholding the WCJ’s October 29, 2014 order dismissing the lien claims, but 15 describes no evidence showing that treatment was allowed outside of defendant’s MPN. Instead, the 16 objection contains procedural arguments based upon two declarations signed by Mr. Jimenez under 17 penalty of perjury that are attached to the objection. 18 In the declaration marked Exhibit 1 and dated December 23, 2014, Mr. Jimenez acknowledged 19 that at the pretrial conference his clients had no evidence showing that treatment was allowed outside of 20 defendant’s MPN. He further declared that he “did not agree to any Stipulations of any kind” at the 21 conference and that his signature on the stipulations was “acceptance of personal service of the 22 documents and nothing more.” 23 In the declaration marked Exhibit 2 and dated March 13, 2015, Mr. Jimenez provides more details 24 concerning his claimed perception of events at the October 29, 2014 conference, and he reiterates that he 25 did not stipulate to anything at the conference and only signed the stipulations to show receipt of personal 26 service. 27 /// IN RE: JAVIER JIMENEZ 12 1 On March 19, 2015, the WCJ ordered a $2,000.00 sanction jointly and severally against 2 Mr. Jimenez and CHM, a second $2,000.00 sanction jointly and severally against Mr. Jimenez and his 3 client Frontline and a third $2,000.00 sanction jointly and severally against Mr. Jimenez and his client 4 Firstline. The WCJ also jointly and severally awarded defendant attorney’s fees and costs against those 5 same individuals and entities in the amount of $750.00 as part of the sanctions. 6 Algene Nash for CHM sought reconsideration of the WCJ’s sanction order on behalf of CHM, 7 Frontline, and Firstline, arguing that Mr. Jimenez was at fault for not presenting evidence that would 8 have shifted the burden to defendant on the MPN defense, although the evidence was not identified. The 9 petition again included no proof of service upon Mr. Jimenez, and it was dismissed on June 4, 2015, for 10 that reason. However, the panel further noted that it would have affirmed the WCJ’s orders based upon 11 her Report And Recommendation On Petition For Reconsideration, which states in pertinent part as 12 follows: 13 14 15 16 17 18 [O]n October 29, 2014, the petitioner’s representative, Javier Jimenez, advised the Court and the defendant that he could list no evidence relevant to the threshold issue of entitlement to treat outside the defendants Medical Provider Network…There was no challenge at the lien conference to the existence of a valid Medical Provider Network for LAUSD by Mr. Jimenez and no response or rebuttal offered to the document proffered as evidence by defendant that applicant’s attorney had, in fact, acknowledged the Medical Provider Network and chosen a doctor therein and that the applicant had been provided with required notices. Mr. Jimenez advised the Court that there was no evidence available from his client of any neglect or refusal to provide treatment. (pages 3-4) 19 The WCJ’s March 19, 2015 sanction order was not further challenged and is final for all 20 purposes. The $2,000 sanction jointly and severally imposed against Mr. Jimenez and CHM was paid by 21 CHM check number 2870 or about August 7, 2015. However, the WCJ’s March 19, 2015 $2,000.00 22 sanction against Mr. Jimenez and his client Firstline and the WCJ’s March 19, 2015 $2,000.00 sanction 23 against Mr. Jimenez and his client Frontline have not been paid. There also is no record of payment to 24 defendant of the $750.00 in attorney’s fees as ordered by the WCJ on March 19, 2015. 25 On August 10, 2015, Deputy Commissioner Dietrich notified Mr. Jimenez that the failure to 26 comply with the March 19, 2015 sanction orders was grounds for suspending or removing his privilege to 27 appear before the WCAB as a Labor Code section 5700 agent. IN RE: JAVIER JIMENEZ 13 1 7) Garcia v. Tri-State Employment Services (ADJ8558429): On or about May 5, 2015, 2 Mr. Jimenez signed a Notice Of Representation designating him as the representative of lien claimant 3 Kevin Aminian, M.D. The notice expressly referenced a continued lien conference concerning the 4 physician’s lien for medical legal expenses that was scheduled for May 12, 2015. However, Mr. Jimenez 5 did not appear at the May 12, 2015 lien conference. As a consequence, the WCJ on that date issued a 6 Notice of Intention to Dismiss Dr. Aminian’s lien with prejudice unless good cause was shown to the 7 contrary. 8 Mr. Jimenez, on behalf of Dr. Aminian, filed an Objection to Notice of Intent to Dismiss Lien on 9 May 27, 2015, stating that the failure to appear was due to the late receipt of an email and a calendaring 10 error. The WCJ determined that the objection did not set forth good cause for the failure to appear and 11 on May 29, 2015, issued an order dismissing the lien, which was served on July 8, 2015. 12 On July 28, 2015, Jessica Manion filed a Notice of Representation identifying Legal Service 13 Bureau as the representative of Dr. Aminian and requesting that copies of all future documents be served 14 on that entity. That notice includes no signature by the physician or evidence of service upon him, but 15 does include proof of service of a copy by Ms. Manion on Mr. Jimenez. 16 On July 30, 2015, Mr. Jimenez continued to act on behalf of Dr. Aminian by filing a petition for 17 reconsideration of the WCJ’s order dismissing the lien claim, contending that the WCJ did not issue a 18 notice of intention to dismiss before ordering dismissal of the lien, and that lien claimant was denied due 19 process because the dismissal order did not specify whether lien claimant failed to appear for a lien 20 conference or a lien trial. 21 The Appeals Board granted the petition for reconsideration filed by Mr. Jimenez. 22 reconsideration the panel determined that the petition contained the material misrepresentation of fact 23 that the WCJ did not issue a notice of intention to dismiss the lien before ordering its dismissal. Based 24 upon that fact, the Appeals Board panel issued a September 28, 2015 notice of intention to jointly and 25 severally sanction Mr. Jimenez and Dr. Aminian. Upon 26 On October 16, 2005, Miriam Lampkin who was identified as the “Collection Manager” for 27 Dr. Aminian filed a response to the notice of intention on behalf of the physician who was identified as IN RE: JAVIER JIMENEZ 14 1 acting in pro per. The response included no proof of service on Mr. Jimenez. 2 response, in part, that a delay in the filing in EAMS of the WCJ’s May 12, 2015 notice of intention to 3 dismiss was the reason for the material misrepresentation of fact in the petition filed by Mr. Jimenez. 4 The Appeals Board panel determined that the response to the proposed sanction did not excuse the false 5 statements made in the petition for reconsideration filed by Mr. Jimenez on behalf of Dr. Aminian, and 6 on November 16, 2015 the panel ordered Mr. Jimenez and his client to jointly and severally pay a 7 sanction of $2,500.00. 8 It was argued in the Payment of the November 16, 2015 sanction has not been received. 9 10 DISCUSSION 11 Sanctions have not caused Mr. Jimenez to conform his conduct to the Appeals Board’s Rules of 12 Practice and Procedure (Appeals Board’s Rules) and he continues to disregard his obligation to comply 13 with orders of the WCAB. The privilege of appearing before the WCAB as allowed by Labor Code 14 section 5700 is limited by Labor Code section 4907, which provides in full as follows: 15 16 17 (a) The privilege of any person, except attorneys admitted to practice in the Supreme Court of the state, to appear in any proceeding as a representative of any party before the appeals board, or any of its workers’ compensation administrative law judges, may, after a hearing, be removed, denied, or suspended by the appeals board for either of the following: 18 19 (1) For a violation of this chapter, the Rules of the Workers’ Compensation Appeals Board, or the Rules of the Administrative Director. 20 21 22 23 24 (2) For other good cause, including, but not limited to, failure to pay final order of sanctions, attorney’s fees, or costs issued under [Labor Code] section 5813. (b) For purposes of this section, nonattorney representatives shall be held to the same professional standards of conduct as attorneys. 25 It appears there is good cause to suspend the privilege of Mr. Jimenez to appear in any proceeding 26 as a representative of any party before the Appeals Board and WCJs because of the ongoing sanctionable 27 conduct and apparent willful disregard of WCAB orders. A pattern of disciplinary actions and repeated IN RE: JAVIER JIMENEZ 15 1 misconduct, with no apparent attempt to reform, supports the suspension or removal of the privilege of 2 practicing before the Workers’ Compensation Appeals Board. (In Re Discipline, Suspension or Removal 3 of the Privilege of Louis Moran to Appear in Proceedings Before the Board (1980) 45 Cal.Comp.Cases 4 519 (Appeals Board en banc) (Moran); In Re Daniel Escamilla (2013) 78 Cal.Comp.Cases 134 (Appeals 5 Board en banc) (Escamilla).) 6 In addition, failing to comply with an order or regulation of the WCAB, including an order to pay 7 a sanction, is an interference with the judicial process that provides good cause for suspending or 8 removing the privilege to appear before the WCAB. (Lab. Code, § 4907; In the Matter of John Hoffman 9 71 Cal.Comp.Cases 609, 622 (significant panel decision); Moran, supra; Escamilla, supra; cf. Reiner 10 Discipline 2014 Cal. LEXIS 10230 (Cal. Sept. 10, 2014).) While several of the ordered sanctions have 11 been paid, the December 2, 2014 $2,500.00 sanction in ADJ2826351 (Nunez), the two March 19, 2015 12 $2,000.00 sanctions in ADJ1298503/ADJ4673153 (Tate), and the November 16, 2015 $2,500.00 13 sanction in ADJ8558429 (Garcia) have not. In addition, there has been no showing of compliance with 14 the December 18, 2014 order to pay defendant $2,322.50 for its attorney’s fees and costs in ADJ3319996 15 (Beltran), and no showing of compliance with the March 4, 2013 order to pay defendant $3,500.00 for its 16 attorney’s fees in ADJ3049738 (Torres). 17 The repeated improper conduct of Mr. Jimenez as described above has placed an unreasonable 18 burden on opposing parties and has wasted limited judicial resources. Mr. Jimenez’s failure to change 19 his conduct notwithstanding the sanctions that have been imposed appears to be contrary to Labor Code 20 section 5813 and California Code of Regulations, title 8, section 10561, and in willful disregard of the 21 Appeals Board’s Rules. This ongoing conduct compels us to consider suspension of the privilege to 22 appear in any proceeding as a representative of any party before the Appeals Board or any WCJs 23 pursuant to Labor Code section 4907. 24 Acting as a hearing representative and appearing before the Appeals Board and WCJs constitutes 25 the performance of legal services. (Eagle Indemn. Co. v. Industrial Acc. Com. (Hernandez) (1933) 217 26 Cal. 244 [19 I.A.C. 150].) Suspension of the privilege to appear before the Appeals Board and WCJs 27 prohibits the performance of such legal services, including but not limited to the following: IN RE: JAVIER JIMENEZ 16 “(1) filing pleadings reflecting that the [individual] is ‘appearing’ on behalf of another…; 1 2 3 (2) negotiating and settling claims on behalf of a client with third parties…; 4 (4) appearing at depositions on behalf of another…; and 5 (5) engaging in discovery or responding to discovery requests…” (In the Matter of John Hoffman 71 Cal.Comp.Cases 609, 622 (significant panel decision) [bracketed material substituted], citing Rules Prof. Conduct, rule 1-311(B)(3) and rule 1-311(B)(4); Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119, 127 [949 P.2d 1, 70 Cal.Rptr.2d 304]; Morgan v. State Bar (1990) 51 Cal.3d 598, 603 [797 P.2d 1186, 274 Cal.Rptr. 8]; Benninghoff v. Superior Court (2006) 136 Cal.App.4th 61, 69 [38 Cal.Rptr.3d 759]; Gentis v. Safeguard Business Systems, Inc. (1998) 60 Cal.App.4th 1294, 1308 [71 Cal.Rptr.2d 122];]; Ex Parte McCue (1930) 211 Cal. 57, 68 [293 P. 47] c.f. Watung v. Riverside Beauty Supply (2003) 68 Cal.Comp.Cases 1602 (Appeals Board en banc); Moran, supra; Crumpton, supra.) 6 7 8 9 10 11 12 13 14 Mr. Jimenez is entitled to due process and Labor Code section 4907 allows for a hearing before 15 the privilege to appear before the WCAB is suspended. Accordingly, and for the reasons set forth above, 16 notice is hereby given that the privilege of Javier Jimenez to appear in any proceeding as a representative 17 of any party before the Appeals Board or any of its WCJs will be suspended for 180 days pursuant to 18 Labor Code section 4907 unless within 20 days from the date of this notice, good cause is shown in 19 writing why this action should not be imposed and/or good cause is shown in writing within that time 20 why this matter should be set for further hearing. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// IN RE: JAVIER JIMENEZ 17 1 For the foregoing reasons, the following notice is given: 2 NOTICE IS HEREBY GIVEN that the Appeals Board intends to suspend the privilege of Javier 3 Jimenez to appear in any proceeding as a representative of any party before the Appeals Board, or any of 4 its workers’ compensation administrative law judges for one hundred eighty (180) days unless good 5 cause is shown in writing within twenty (20) days from the date this Notice Of Intention why this action 6 should not be taken and/or good cause is shown in writing within that time why this matter should be set 7 for further hearing. 8 NOTICE IS FURTHER GIVEN that if there has not been compliance with each of the above- 9 described sanction orders upon the expiration of any suspension that is imposed, the suspension shall 10 continue until there is full compliance with those sanction orders. 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// IN RE: JAVIER JIMENEZ 18 1 IT IS FURTHER ORDERED that pending the issuance of a decision herein, all further 2 correspondence, objections, motions, requests, and communications shall be filed in writing in paper 3 format (not e-filed or in electronic format) with the Workers’ Compensation Appeals Board, P.O. Box 4 429459, ATTENTION: Office of the Commissioners, San Francisco, CA 94142-9459, and not with any 5 local office. 6 WORKERS’ COMPENSATION APPEALS BOARD (EN BANC) 7 /s/ Ronnie G. Caplane_______________________ RONNIE G. CAPLANE, Chairwoman 8 9 10 /s/ Frank M. Brass_________________________ FRANK M. BRASS, Commissioner 11 12 /s/ Deidra E. Lowe__________________________ DEIDRA E. LOWE, Commissioner 13 14 /s/ Marguerite Sweeney______________________ MARGUERITE SWEENEY, Commissioner 15 16 17 /s/ Katherine A. Zalewski_____________________ KATHERINE A. ZALEWSKI, Commissioner 18 19 /s/ Jose H. Razo____________________________ JOSÉ H. RAZO, Commissioner 20 21 22 DATED AND FILED AT SAN FRANCISCO, CALIFORNIA 12/16/2015 23 24 SERVICE MADE ON THE ABOVE DATE ON THE PERSON LISTED ON THE FOLLOWING PROOF OF SERVICE PAGE. 25 26 27 JFS/abs IN RE: JAVIER JIMENEZ 19