WCDefenseCA

Happy Monday, dear readers! It is another beautiful Monday morning in California.  The Boards are accessible by phone call, the depositions are going forward over ZOOM, and lawyers up and down the state of California engage in the zealous advocacy of their clients’ interests while wearing fuzzy pajamas.  Not your humble blogger though – suit and bow tie every day!

Anywho, one of the charms of the legal profession in general and workers’ compensation in particular is that if you think you’ve mastered anything, ANYTHING, you are probably wrong… at least a little wrong.  The law keeps changing, new trends and theories develop and are accepted and then rejected and replaced.  In short, we are all continuously learning and (hopefully) improving.

To that end, your humble blogger brings his beloved readers’ attentions to the recent panel case of Jose De Leon v. Santa Ana Rios Farm Labor/Star Insurance Co.  Therein, the WCAB, after a petition for reconsideration filed by applicant, issued a finding that applicant’s 2013 injury should be rated to 17% permanent disability and was awarded indemnity in the amount of $17,545.00.

Now, you might be thinking to yourself 17% PD is equivalent to $17,545… so what’s the problem?  Well, for 2013 injuries, permanent disability benefits capped out at $230 per week for 17% PD, not $290, so a finding of 17% is actually worth only $13,915.

Some 11 days after the WCAB issued its ruling, defendant e-filed a letter to the WCJ asserting the correct PD valuation.  A second letter, addressed to the WCAB, was e-filed about a month after the first.

The WCAB issued an Opinion and Order Correcting Error, issuing a new award with the correct PD valuation.   But in so doing, it offered some guidance for us practitioners:

• “[T]he award of an incorrect amount of permanent disability indemnity is not a clerical error, which the Appeals Board can correct at any time… Rather, the award of an incorrect amount of permanent disability indemnity is a judicial error for which a timely filed Petition for Reconsideration is required to confer jurisdiction.” 

In other words, as much as we all hate math, an error of this sort needs to be addressed in the same way as if the party contested the interpretation or application of the law: through a petition for reconsideration.

• Also, the WCAB cautioned the parties that a proper Petition for Reconsideration must be filed, and not just a letter.  Although the De Leon WCAB panel decided that due process warranted interpreting the original letter to the WCJ as a petition for reconsideration, there’s no guarantee that the next time this happens the same result will be reached.  If a party is newly aggrieved by a finding of the WCAB, even on reconsideration, a new petition for reconsideration should be filed.

So dear readers, let us take this guidance and improve our craft.  Have a great week!