Amendment of Pleading to Conform to Proof (California)

This category is meant for discussion of technical legal issues in workers' compensation. If you are an injured worker, do not ask questions here. Go to the Injured Workers' forum.

Amendment of Pleading to Conform to Proof (California)

Postby oandslaw on Wed Feb 15, 2012 11:51 am

What is the seminal comp case, or perhaps labor code section, allowing this time honored procedure. No cite has surfaced in my sources of research. I don't want to use Gilberts. Thank you.
oandslaw
 
Posts: 33
Joined: Wed Nov 30, 2011 4:17 pm

Re: Amendment of Pleading to Conform to Proof (California)

Postby stewshe on Wed Feb 15, 2012 12:16 pm

oandslaw,

Thank you! My 5/16/12 edition will have under "Pleadings," "Amended to conform to proof, CCR Sec 10492"

Stew
James T. Stewart (stewshe@comcast.net)
User avatar
stewshe
 
Posts: 412
Joined: Mon Mar 02, 2009 12:27 pm

Re: Amendment of Pleading to Conform to Proof (California)

Postby stewshe on Wed Feb 15, 2012 4:15 pm

oandslaw,

I checked a bit further and found the following which will be an entry under "Pleadings" on approximately page 723 of my 9th ed. The first CCR cite was for the WCJ and what follows will probably be more helpful to you.

The "CWCLP" abbreviation is for California Workers' Compensation Law and Practice, originally by Judge St. Clari, but more recently with assistance from attorneys Newman, Wong, & Dobrin.

What follows lacks hanging paragraphs which make it easier to scan:

<<
Pleadings: L.C. §5500 & 11/08 CCR §§10400-10408; CWCLP §§16:130 - 136

...* Amendment to Pleadings: CWCLP §§16.150 - 154; 6/98 CAAA §§8.7-8.11 {30 cases
summarized}

.....~ Amendment by WCAB conform to proof: CCR §10492

.....~ Injury plead as a specific, but WCJ allowed amendment of pleadings
to conform to proof since AME found cumulative trauma: Salvation
Army (NOEL) 61 CCC 732

.....~ Not allowed where electrical shock injury occurred 4 ½ years before
attempt to amend application to include internal organs: RAMIREZ 69
CCC 828

.....~ Part of Body alleged, amendment of AP, ER and CA were aware of
cumulative nature of injury despite specific only filed, not discussing
amendment of claim form, BECKSTEAD 26 CWCR 7, 62 CCC 1646,
6/98 CAAA §11.4; ExpoServices (CRATTY) 69 CCC 260
>>

Good Luck!

Stew
James T. Stewart (stewshe@comcast.net)
User avatar
stewshe
 
Posts: 412
Joined: Mon Mar 02, 2009 12:27 pm

Re: Amendment of Pleading to Conform to Proof (California)

Postby wcscout on Wed Aug 09, 2017 2:03 pm

Anyone had the opposite experience, a finding where the pleading was not allowed to conform to proof when a CT was pled as a specific?
wcscout
 
Posts: 270
Joined: Tue Mar 29, 2011 1:52 pm

Re: Amendment of Pleading to Conform to Proof (California)

Postby steve appell on Thu Aug 10, 2017 4:14 pm

My understanding is pleadings can be amended to conform to proof through the date of trial until submission.

LATE
Steve

appellandassociates.com
6311 Van Nuys Bl #480
Van Nuys, Ca 91401
wcexaminer@aol.com


Check out 'WORK COMP MATTERS" Free PODCAST below
https://www.workcompcentral.com/educati ... ype=online
User avatar
steve appell
 
Posts: 405
Joined: Mon Mar 02, 2009 12:02 pm

Re: Amendment of Pleading to Conform to Proof (California)

Postby LawAdvocate on Thu Aug 10, 2017 9:30 pm

I disagree, upon notice of injury and disability, you have to file an Application within the statute of limitations, but I have to do a case law search on this issue this weekend.

As to amendments - I best practice is you amend when you have knowledge as to dates being off slightly for specific injuries.

However, if a physician or medical-legal evaluator is advising you of additional dates of injury, you file an Application upon notice. Will let you know the search results.
LawAdvocate
 
Posts: 888
Joined: Wed Jun 11, 2014 10:55 am

Re: Amendment of Pleading to Conform to Proof (California)

Postby steve appell on Fri Aug 11, 2017 7:57 am

As to amendments - I best practice is you amend when you have knowledge as to dates being off slightly for specific injuries.

Correct .... and if you don't get the knowledge until trial, you are allowed to conform to proof until the time of submission.
Steve

appellandassociates.com
6311 Van Nuys Bl #480
Van Nuys, Ca 91401
wcexaminer@aol.com


Check out 'WORK COMP MATTERS" Free PODCAST below
https://www.workcompcentral.com/educati ... ype=online
User avatar
steve appell
 
Posts: 405
Joined: Mon Mar 02, 2009 12:02 pm

Re: Amendment of Pleading to Conform to Proof (California)

Postby vampireinthenight on Fri Aug 11, 2017 8:32 am

There are instances, one of them cited by Stew, of WCJ amendment AFTER the case is submitted. The common one is a specific pled but the medical supports a CT (can you imagine an award for psyche injury because depression is mentioned in a report but never amended into the claim?).

Obviously this is incredibly sloppy advocacy by the pleading party. You don't see this done too often because it is absolutely rife with due process violations for the opposing party. No party should be required to guess what might be awarded by a WCJ and engage in discovery, argument and listing evidence to rebut claims that have not actually been forwarded by another party. But the regulation is there and it should always be on one's mind. If you find yourself in this position, you might want to be prepared to show... prejudice. ;)
User avatar
vampireinthenight
 
Posts: 906
Joined: Wed Mar 11, 2009 7:53 am


Return to Legal

Who is online

Users browsing this forum: No registered users and 4 guests