ADJ9017829 · January 6, 2025

The WCJ failed to rule on CIGA's Petition for change of administration and instead re-litigated a previously settled issue; the Appeals Board granted reconsideration and remanded for proper ruling on the outstanding issues.

From the decision · page 1Defendant California Insurance Guarantee Association (CIGA) seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Order of September 30, 2024, wherein it was found that "the applicant... while employed on June 16, 2013 as a fo[r]k lift operator... by DIAMOND STAFFING SERVICES, whose workers' compensation insurance carrier was CALIFORNIA INSURANCE GUARANTEE ASSOCIATION FOR LUMBERMAN'S UNDERWRITING ALLIANCE IN LIQUIDATION, sustained injury arising out of and occurring in the course of employment to the lumbar spine, cervical spine, and bilateral knees." (Finding of Fact No. 1.) Finding of Fact Number 2 then contradicts the first finding, (incorrectly) stating, "Pursuant to the Directive of the Workers['] Compensation Appeals Board, the Applicant was an employee of National Retail Transportation, and not an employee of Diamond Staffing Services." Finding of Fact Number 3 cryptically states, "No further issues will be addressed by the Court per Hartford's request." In this matter, Hartford is the carrier for National Retail Transportation (NRT).

The Appeals Board had already found applicant was a special employee of NRT in a prior final decision and this finding was not subject to reconsideration.

From the decision · page 5In our Opinion and Decision After Reconsideration of February 26, 2024, we explained and expressly found that "Applicant was a special employee of NRT at the time of his June 16, 2023 injury." (Finding No. 2.) Since the parties had stipulated to industrial injury to the lumbar spine, cervical spine, and bilateral knees (Minutes of Hearing and Summary of Evidence of October 19, 2023 trial at p. 2), our finding that NRT was applicant's special employer was our only finding on a contested issue. We deferred all other issues regarding CIGA's Petition for change in administration/continued liability for determination at the trial level. We noted that if Hartford contended that its policy contained an exclusion for special employees, that issue was subject to mandatory arbitration pursuant to Labor Code section 5275(a)(1). Neither reconsideration nor appellate review was sought of our February 26, 2024 decision which is now long final.

Applicant was found to be a special employee of National Retail Transportation at time of injury

Favours Applicant prevailed

This finding was final and not subject to reconsideration, forming the basis for administration issues

From the decision · page 5In our Opinion and Decision After Reconsideration of February 26, 2024, we explained and expressly found that "Applicant was a special employee of NRT at the time of his June 16, 2023 injury." (Finding No. 2.) Since the parties had stipulated to industrial injury to the lumbar spine, cervical spine, and bilateral knees (Minutes of Hearing and Summary of Evidence of October 19, 2023 trial at p. 2), our finding that NRT was applicant's special employer was our only finding on a contested issue. We deferred all other issues regarding CIGA's Petition for change in administration/continued liability for determination at the trial level. We noted that if Hartford contended that its policy contained an exclusion for special employees, that issue was subject to mandatory arbitration pursuant to Labor Code section 5275(a)(1). Neither reconsideration nor appellate review was sought of our February 26, 2024 decision which is now long final.

WCJ failed to rule on CIGA's Petition for change of administration and instead re-litigated a settled issue

Favours Applicant prevailed

Led to Appeals Board granting reconsideration and remanding for proper ruling on outstanding issues

From the decision · page 1Defendant California Insurance Guarantee Association (CIGA) seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Order of September 30, 2024, wherein it was found that "the applicant... while employed on June 16, 2013 as a fo[r]k lift operator... by DIAMOND STAFFING SERVICES, whose workers' compensation insurance carrier was CALIFORNIA INSURANCE GUARANTEE ASSOCIATION FOR LUMBERMAN'S UNDERWRITING ALLIANCE IN LIQUIDATION, sustained injury arising out of and occurring in the course of employment to the lumbar spine, cervical spine, and bilateral knees." (Finding of Fact No. 1.) Finding of Fact Number 2 then contradicts the first finding, (incorrectly) stating, "Pursuant to the Directive of the Workers['] Compensation Appeals Board, the Applicant was an employee of National Retail Transportation, and not an employee of Diamond Staffing Services." Finding of Fact Number 3 cryptically states, "No further issues will be addressed by the Court per Hartford's request." In this matter, Hartford is the carrier for National Retail Transportation (NRT).

Insurance Code section 1063.1(c)(9)(A)

Insurance Code section 1063.1(c)(9)(A) defining 'covered claims' and 'other insurance'

Determining liability and administration responsibility between CIGA and Hartford

From the decision · page 5Subdivision (c)(9) of Insurance Code section 1063.1 provides: "`Covered claims' shall not include (A) any claim to the extent it is covered by any other insurance of a class covered by the provisions of this article available to the claimant or insured...." In the applicant, the Court of Appeal held that when a solvent insurer and an insolvent insurer are jointly and severally liable to an applicant, CIGA has no obligation to pay. Accordingly, if the policy issued by Hartford to covers the industrial injury to the applicant, then there is no "covered claim," and CIGA is properly relieved of liability in this case. However, if Hartford's policy to NRT expressly excluded coverage for special employees, there would be no "other insurance" and liability could be continued to be enforced against CIGA. (Travelers Property Casualty Co. v. Workers' Comp. Appeals Bd. (Mastache) (2019) 40 Cal.App.5th 728 [84 Cal.Comp.Cases 883].)

Labor Code section 5275(a)(1)

Labor Code section 5275(a)(1) regarding mandatory arbitration of policy exclusions

If Hartford's policy excludes special employees, issue subject to mandatory arbitration before other issues decided

From the decision · page 5In our Opinion and Decision After Reconsideration of February 26, 2024, we explained and expressly found that "Applicant was a special employee of NRT at the time of his June 16, 2023 injury." (Finding No. 2.) Since the parties had stipulated to industrial injury to the lumbar spine, cervical spine, and bilateral knees (Minutes of Hearing and Summary of Evidence of October 19, 2023 trial at p. 2), our finding that NRT was applicant's special employer was our only finding on a contested issue. We deferred all other issues regarding CIGA's Petition for change in administration/continued liability for determination at the trial level. We noted that if Hartford contended that its policy contained an exclusion for special employees, that issue was subject to mandatory arbitration pursuant to Labor Code section 5275(a)(1). Neither reconsideration nor appellate review was sought of our February 26, 2024 decision which is now long final.

Labor Code section 5313

Labor Code section 5313 requiring WCJ to specify reasons for decisions

Mandates that WCJ provide clear reasons and evidence references for decisions on issues

From the decision · page 7not be revisited.2 There must now be a proceedings and decision on all other issues relevant to CIGA's administration/liability in this matter. Labor Code section 5313 mandates that a WCJ specify "the reasons or grounds upon which the determination was made." As explained in our en banc decision in Hamilton v. Lockheed Corp. (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc), "The WCJ is... required to prepare an opinion on decision, setting forth clearly and concisely the reasons for the decision made on each issue, and the evidence relied on. (Lab. Code § 5313.) The opinion enables the parties, and the [Appeals] Board if reconsideration is sought, to ascertain the basis for the decision, and makes the right of seeking reconsideration more meaningful. (See Evans v. Workers' Comp. Appeals Bd. (1968) 68 Cal. 2d 753, 755 [33 Cal. Comp.

Labor Code section 5909

Labor Code section 5909 regarding timing for Appeals Board to act on petitions for reconsideration

Appeals Board must act within 60 days of case transmission; decision timely issued

From the decision · page 2Preliminarily, we note that former Labor Code section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that:

Finding that applicant was a special employee of NRT at time of injury

From the decision · page 5In our Opinion and Decision After Reconsideration of February 26, 2024, we explained and expressly found that "Applicant was a special employee of NRT at the time of his June 16, 2023 injury." (Finding No. 2.) Since the parties had stipulated to industrial injury to the lumbar spine, cervical spine, and bilateral knees (Minutes of Hearing and Summary of Evidence of October 19, 2023 trial at p. 2), our finding that NRT was applicant's special employer was our only finding on a contested issue. We deferred all other issues regarding CIGA's Petition for change in administration/continued liability for determination at the trial level. We noted that if Hartford contended that its policy contained an exclusion for special employees, that issue was subject to mandatory arbitration pursuant to Labor Code section 5275(a)(1). Neither reconsideration nor appellate review was sought of our February 26, 2024 decision which is now long final.

Stipulation to industrial injury to lumbar spine, cervical spine, and bilateral knees

From the decision · page 5In our Opinion and Decision After Reconsideration of February 26, 2024, we explained and expressly found that "Applicant was a special employee of NRT at the time of his June 16, 2023 injury." (Finding No. 2.) Since the parties had stipulated to industrial injury to the lumbar spine, cervical spine, and bilateral knees (Minutes of Hearing and Summary of Evidence of October 19, 2023 trial at p. 2), our finding that NRT was applicant's special employer was our only finding on a contested issue. We deferred all other issues regarding CIGA's Petition for change in administration/continued liability for determination at the trial level. We noted that if Hartford contended that its policy contained an exclusion for special employees, that issue was subject to mandatory arbitration pursuant to Labor Code section 5275(a)(1). Neither reconsideration nor appellate review was sought of our February 26, 2024 decision which is now long final.