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The Waaaaaaiting is the Hardest Part

November 9th, 2012

Are you ready for another boring post about how to properly perform an internal calibration of your task assignment system in workers’ compensation?  It’s very important for all adjusters to take notes on this post because it can get pretty complicated and math-heavy…

Now that all the applicants’ attorneys and applicants have stopped reading… on to the real post!

The other night, your humble blogger sat at a kitchen table with his elder cousin Jeffrey.  Through a mixture of adoptions, arranged marriages, one duel with pistols at dawn, and some babies switched at birth, Jeffrey became your humble blogger’s oldest cousin, and at sixty-five years young, remained eternally optimistic about all things.

Cousin Jeffrey related to me the news that had him extra-optimistic: he had finally decided to ask out the love of his life.  He had known her in highschool and had even asked for her phone number, but had been biding his time for the perfect moment to call her.  Now, after almost five decades, the time was ripe and he was going to make his move.

Your humble blogger has this advice to you, my readers:  in matters of the heart, do what feels right; in matters of workers’ compensation, do not hesitate and make your move early!

Such advice would have been of some use to the applicant in the matter of Elsa Serrano v. ITT Cannon Electrics.  Therein, the defendant had successfully sought dismissal of two cases, and a notice of intent to dismiss was served by the Board and the defendant in January of 2010.  The order was signed in June of 2010, and this time the defendant alone served the applicant and her attorney with the order.

Applicant attempted to file a new application in 2011 for the same injury, but was barred by the statute of limitations.  So, applicant attempted to contest the dismissal of her previous applications (some fourteen months after service of the Notice of Intention to Dismiss).  Applicant testified to never having been informed of the dismissal by her attorney until recently, and that the Proof of Service for the Order had an incorrect zip code (off by one digit).

Based on this, the workers’ compensation Judge ruled that the Order was not final (due to defective service) and allowed applicant to contest the dismissal.  When the defendant sought reconsideration, the WCJ cited California Code of Regulations section 10500(b), noting that all final orders must be served by the Board and not be designated to other parties for service.

The Workers’ Compensation Appeals Board, on the other hand, was not of the WCJ’s mind.  In granting defendant’s petition for reconsideration, the WCAB reasoned that a harmless error, such as an incorrect zip code, is not good cause to rule a previous order of dismissal as anything other than a final order.  The applicant did not even testify to not having received the order, but rather that she couldn’t remember if she had.

According to the United States Postal Service, an incorrect zip code will result in a delivery delay.

So, dear readers, while it is never too late for love, and never too late to try new things, workers’ compensation is a place where the early bird gets the worm, and for the defense, the waiting is the hardest part…


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