RE: GEORGE THE BARTENDER’S DISPATCHES FROM ONLINE HAPPY HOUR – DETERMINING LIABILITY FOR A CONTINUOUS TRAUMA INJURY OR WHAT A DIFFERENCE A DAY MAKES

FROM MY BAR AT HOME:

When I last ventured to the Lobby Bar to share a drink with my dear friend and mentor Joe Truce, the country was fixated on the chaotic legal drama unfolding in the nation’s capital – a certain high-profile impeachment proceeding – and was in a blissful state of ignorance to the soon-to-be-revealed coronavirus pandemic. It’s hard to process that March 2020 now qualifies as “the good old days.”

Following the virus outbreak, both the Firm and the Lobby Bar went ‘remote’ as part of a nationwide collective effort to flatten the curve, keep its employees and patrons safe, and stop the spread. It was a remarkably smooth transition, and fortunately, seemed to work as intended. Virtual happy hours became the activity du jour and people started utilizing technology in fascinating new ways.

To quote the great chaotician1 Dr. Ian Malcolm from Jurassic Park: “Life, uh…finds a way…”

And so it did. “New normal” habits were established, toilet paper and hand sanitizer became the new currency of the country, and people adapted their social lives to prevent illness in their friends and family. Life had stabilized. Then the virus-fatigue hit, cases soared, anti-mask protests began, followed closely by the presidential election.

The nation was once again glued to the television, waiting on minute-by-minute updates of vote tallies, 200 votes here, 150 votes there, in what started out as a nail-bitingly close race. When the dust settles, 2020 may go down in history with the highest voter turnout since 19082, with the President-elect garnering a record breaking 81 million votes.

Then the legal appeals started, the calls for recounts and allegations of widespread voter fraud. To many, the big question became “when is the decision final?” (Which could be a charitable interpretation of “when will this all be over?!”)

Given the expected Electoral College votes (306 to 232) the election is all but determined. However, our republic has a series of state-specific steps to complete before the victor is officially crowned. Recounts, certification of votes by states, and potential legal challenges. However, once the votes are certified, Federal guidelines kick in, with December 8 the deadline to resolve electoral college disputes, December 14 for electoral college votes to be cast, January 6 (2021) for the House and Senate to formally count electoral votes, and January 20 (2021) for inauguration day.

Practitioners in the legal field, and specifically our workers’ compensation community, often face the same question – “when is the decision final?” It’s an important question as any final decision will trigger both deadlines and distinct procedures for appeal, and oftentimes even experienced attorneys confuse final and non-final orders. And to be fair, like our elections, it’s sometimes a grey area.

This was the topic of discussion when I logged into the Lobby Bar’s online happy hour, Amaretto Sour in hand.3 Joe Truce just finished explaining the intricacies of the Electoral College to his virtual guests, when his friend and fellow defense attorney Frank Falls (who had forgotten to mute his phone) exclaimed “I’m going to take this to the Supreme Court!

As it turns out, Frank had just received a decision from the Workers’ Compensation Appeals Board (WCAB) denying his Petition for Reconsideration on a trial loss of a 132a issue.4 He was incensed that the WCAB would both find against him, and order the matter returned to the trial level for further proceedings, thereby prolonging his agony.

Joe, Beefeater’s martini in hand, chimed in that Frank was not going to get to the United Sates Supreme Court just yet, but still had hope for an appeal.5 He explained that final orders are generally those that resolve a threshold issue, core to the employee’s right to benefits. Obvious examples of threshold issues include the jurisdiction of the WCAB over a claim, a determination of an employment relationship, whether an industrial injury occurred, and determination of affirmative defenses (statute of limitations, etc.). Some slightly less obvious issues would include a decision on level of permanent disability and which disability schedule would apply in a case, assertions of credit against workers’ compensation liability, and findings of insurance coverage.

I pointed out to the group that Labor Code §5900 allows for the appeal of “any final order, decision, or award…” by means of a petition for reconsideration. Specific grounds for reconsideration are outlined in Labor Code §5903 and include: (1) the appeals board acted in excess of its powers; (2) the decision was procured by fraud; (3) the evidence did not support the findings of fact; (4) new evidence is available which could not have been produced at the hearing, and (5) the findings of fact do not support the decision.6

Petitions to the California Courts of Appeal for review after a final decision after reconsideration face even higher standards, and are limited to specific determinations on the following issues per Labor Code §5952:

(a) The appeals board acted without or in excess of its powers.
(b) The order, decision or award was procured by fraud.
(c) The order, decision or award was unreasonable.
(d) The order, decision or award was not supported by substantial evidence.
(e) If the findings of fact are made, the findings support the order, decision or award under review.

During this recitation, Frank interjected loudly with “but they said I lost! The decision was rigged! I have every right to appeal!

To Frank’s credit, the WCAB, by denying his petition for reconsideration, had in fact made what seemed to be a final determination on a threshold issue, namely, a finding of the employer’s liability under Labor Code §132a. However, Joe was quick to point out that they had also returned the matter to the trial level for additional findings of fact. Reaching into his trusty briefcase, Joe produced and waived before his webcam for Frank’s benefit, a copy of the Court of Appeal decision Wesco Aircraft Hardware Corp v. WCAB (Kurtz) 85 Cal. Comp. Cases 881 (2020).7

In Wesco the workers’ compensation judge (WCJ) found a violation of §132a by the employer, who had terminated the applicant when he moved out of state during a period of disability, and awarded additional benefits to the applicant, including a penalty of $10,000, reinstatement to his prior position and lost wages of an ongoing nature until reinstatement.

Defendant had appealed via a petition for reconsideration arguing that the WCJ found a violation of §132a in error, and that the evidence did not support entitlement to reinstatement and reimbursement of lost wages. The WCAB upheld the decision as to the §132a violation, but amended the Award to defer the issue of the applicant’s medical fitness for reinstatement, and what period of reimbursement he would therefore be entitled to. The matter was returned to the trial level for further proceedings.

Defendant then filed a Petition for Writ of Review. The Court of Appeal dismissed (not denied) the petition as premature, noting that the WCAB had not yet issued a final decision in the case as they had returned the matter to the trial level for further proceedings.

This decision appears to have been made with judicial economy in mind. The WCJ’s decision finding a §132a violation was upheld by the WCAB and the issues referred back to the trial level (medical eligibility for reinstatement, and periods of wage loss) would have no bearing on that determination. One could see why a defendant in the same situation would assume a final decision had been made on that issue, warranting an appeal. However, it seems the Court of Appeal would prefer to have a completed record on all issues before taking up the case for review.

Armed with this additional information, Frank downed his drink, said his goodbyes and logged out of the virtual happy hour, determined to complete his trial and re-file his appeal once he got a final decision. The rest of us raised our glasses to cheer the holidays, with thoughts on January 20 (2021), and a collective wish for a final end to this election cycle.

DISCLAIMER:

All characters at my home bar are fictional and the storyline is simply a product of my lively imagination. The political commentary above is not intended to promote any particular political view but merely state the facts as they are known to the general public.

Knowing when to file an appeal to a WCAB decision can be confusing for most so it pays to have an adept defense attorney.

Bottoms up, friends, and keep washing your hands.

1 A chaotician, portrayed with rock star flair in the film Jurassic Park by the wonderfully eccentric Jeff Goldblum, focuses on the branch of mathematics called chaos theory. This particular specialty involves the study of underlying patterns in what appear to be otherwise chaotic complex systems. No specialty seems more relevant in 2020, the lack of dinosaurs notwithstanding. But I digress.

2 USA voter turnout in 1908 was 65.4%, and 2020 has now exceeded 66%.

3 Sadly, online happy hours do not have the benefit of an expert mixologist behind the bar to prepare drinks. George has however, taken pity on his loyal patrons by including some of his famous recipes for reference when preparing for virtual events. Today’s cocktail of choice, the Amaretto Sour, is prepared by pouring over ice 1.5 ounces of Amaretto liqueur, 1 ounce of simple syrup, ¾ ounce of fresh lemon juice, topped with a garnish of a single maraschino and orange twist.

4 Labor Code §132a allows for increased benefits to injured workers where it can be shown they were discriminated against due to their work injury.

5 A Beefeater’s martini, straight up, is best served at 38˚ Fahrenheit.

6 I note for the sake of my fellow practitioners that petitions for reconsideration must be filed within 20 days after service of the decision.

7 Much like Mary Poppins’s seemingly bottomless carpetbag (of Disney fame) and Hermione Granger’s bottomless handbag (of Harry Potter fame), Joe’s briefcase possesses magical powers, granting the ability to pull out any decision at a moment’s notice. A copy of Wesco can be obtained via email request.

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