ADJ10379948 — California WCAB decision

What the panel ordered

Petition for Reconsideration dismissed; Petition for Removal denied.

Petition for Reconsideration and Petition for Removal filed by defendant after October 9, 2023 decision; Petition for Reconsideration dismissed and Petition for Removal denied by panel decision on January 2, 2024.

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This docket was decided more than once. Shown here is the latest released decision; we also hold October 9, 2023.

What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Other disputed issueApplicant prevailed

The panel concluded that denial of applicant's request for trial on the employment issue violated due process and warranted rescinding the prior findings and returning the matter for further proceedings.

From the decision · page 3Consequently, defendant was not required to prove--and not found to have proven--that applicant was an independent contractor. Nonetheless, the WCJ deemed defendant's argument that applicant was an independent contractor as "colorable"; and, as such, grounds for finding defendant not estopped from asserting the statute of limitations defense. (Opinion on Decision, pp. 11-12.) It is thus clear the denial of the request for trial of the issue of employment also denied applicant a fair hearing on the merits of his estoppel defense.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant received medical treatment and temporary disability benefits through an insurance policy obtained at defendant's instruction, continuing until approximately March 27, 2017.

Favours Applicant prevailed

This fact supports that the statute of limitations did not expire until one year after the last date benefits were furnished, undermining the WCJ's prior conclusion that the statute expired earlier.

From the decision · page 18Here it is undisputed that applicant received medical treatment and temporary disability benefits through an insurance policy he obtained at defendant's instruction--and applicant testified that these benefits continued until two years after his date of injury, or approximately March 27, 2017. (Opinion on Decision, pp. 3, 7.) Since the statute of limitations runs through the last date on which any employer-provided benefits were furnished, and since defendant presented no evidence to suggest that the benefits were not employer-provided to meet the burden of proving

Denial of applicant's request for trial on the employment issue.

Favours Applicant prevailed

The panel concluded this denial violated applicant's due process rights and warranted rescinding the prior findings and returning the matter for further proceedings.

From the decision · page 3Consequently, defendant was not required to prove--and not found to have proven--that applicant was an independent contractor. Nonetheless, the WCJ deemed defendant's argument that applicant was an independent contractor as "colorable"; and, as such, grounds for finding defendant not estopped from asserting the statute of limitations defense. (Opinion on Decision, pp. 11-12.) It is thus clear the denial of the request for trial of the issue of employment also denied applicant a fair hearing on the merits of his estoppel defense.

Record insufficient to ascertain WCJ's reasons for finding no good cause to reopen the claim.

Favours Applicant prevailed

This insufficiency led the panel to remand the matter for further development on the issue of reopening the claim.

From the decision · page 21We conclude that the record is insufficient to ascertain the WCJ's reasons or grounds for finding that no good cause exists to reopen the claim. Accordingly, we conclude that the finding should be rescinded and the matter returned to the trial level for development of the record as to the issue of whether good cause exists to reopen the claim.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 59002; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528; Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068; Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658

A petition for reconsideration challenges a final order, decision, or award as defined by case law and Labor Code section 59002.

The panel applied this standard to determine the finality of the prior decision and the appropriateness of reconsideration.

From the decision · page 2A petition for reconsideration is the mechanism by which a party may challenge a final order, decision, or award. (Labor Code § 59002.) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410, 413]; or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075, [65 Cal.Comp.Cases 650, 650-651, 655-656].) The Court of Appeal has given examples of threshold issues to include "whether the injury arises out of and in the course of employment, the territorial jurisdiction of the appeals board, the existence of an employment relationship or statute of limitations issues." (Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658, 662 (citations omitted).) "Such issues, if finally determined, may avoid the necessity of further litigation." (Id.) (internal quotation marks and citations omitted).)

Labor Code Section 5803

The Appeals Board has continuing jurisdiction and may rescind, alter, or amend any order, decision or award upon a showing of good cause (Labor Code Section 5803).

The panel applied this standard to remand the matter for further development on the issue of good cause to reopen the claim.

From the decision · page 14That is why, continuing the argument, it is necessary to try the employment issue because if Applicant was induced to drop his workers' compensation claim and not refile it timely based on the representations by Defendant that he was an independent contractor, and a determination is later made that he was in fact an employee. Defendant should be estopped from raising the statute of limitations defense.... The Appeals Board has continuing jurisdiction over all its orders, decisions, and awards, and may, at any time, upon notice and after an opportunity to be heard is given to the parties in interest, rescind, alter, or amend any order, decision or award upon a showing of good cause. (Labor Code Section 5803.)

Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104

Due process requires that a party not be deprived of a substantial right without notice and opportunity to be heard.

The panel found that denial of trial on the employment issue violated due process.

From the decision · page 15DISCUSSION Labor Code section 5909 provides that a petition for reconsideration is deemed denied unless the Appeals Board acts on the petition within sixty days of filing. (Lab. Code, § 5909.) However, "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice...." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [9 Cal. Rptr. 2d 345, 57 Cal.Comp.Cases 493]; see Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 635 fn. 22 [25 Cal. Rptr. 3d 828, 70 Cal.Comp.Cases 312].) In Shipley, the Appeals Board denied applicant's petition for reconsideration because the Appeals Board had not acted on the petition within the statutory time limits. (Shipley, supra, 7 Cal.App.4th at p. 1106.) The Appeals Board had not acted on applicant's petition because, through no fault of the parties, it had misplaced the file. (Id.) The Court of Appeal reversed the Appeals Board, holding that the time to act on the petition was tolled during the period the file was misplaced. (Shipley, supra, 7 Cal.App.4th at p.

ADJ10379948 · January 2, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

The rules the panel named

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