This case demonstrates that when Board records reflect that a party has been repeatedly sanctioned for engaging in frivolous bad-faith actions or tactics, some of which seemed solely intended to cause unnecessary delay, the WCAB is willing to take action, up to and including total removal of the privilege to appear.
In an unpublished opinion, the 2d District Court of Appeal held that a pro per Applicant who filed a Petition to Reopen at the wrong WCAB office should not have been barred due to mistake. The Judge ruled that the WCAB lacked jurisdiction because the petition was deemed not filed under 8 CCR §10390 and the five-year statute of limitations for reopening the claim had expired. At the time the matter was originally tried, 8 CCR §10390 provided that all documents requesting action by the WCAB shall be filed with the district office where the case is pending and if filed in the wrong district office “shall not be accepted for filing or deemed filed”. The Court of Appeal held that the WCAB erred by not applying the current venue regulation, §10397, adopted in 2008, which provides that a Petition to Reopen shall not be rejected for filing solely on the basis that the document was not filed in the proper office of the WCAB. The Court of Appeal also held that the Applicant had established adequate grounds for granting relief based on mistake, inadvertence, or excusable neglect.
The Board in a Panel decision applied the Court of Appeals decision in Del Taco v. WCAB (2000) 65 CCC 342 to the situation where a defendant made a legitimate offer of modified work that the applicant could not accept solely because of her residency status. The Board ruled that the applicant was not entitled to TTD where her undocumented status prevented her employer from offering her modified work. However, the Board also found that the applicant would be entitled to TTD if she could show that she was temporarily disabled because of medical reasons and noted that this must be supported by substantial medical evidence.
The WCAB issued an en banc decision holding that a request for a QME panel is untimely if it is sent before the 10 days given for the parties to settle on an agreed medical evaluator has expired. Unless personally served, the 10-day period for seeking agreement on an AME under Labor Code section 4062(b) is extended by five calendar days if the recipient is within California (per 8 CCR 10507). The time period for seeking agreement on an AME begins the day after the first written proposal and includes the last day. Therefore, a panel QME request may only be made on the 16th day or later than the initial AME proposal.
After granting reconsideration of its prior decision, the Board in an en banc decision affirmed its prior holding and upheld its decision that, where unauthorized treatment is obtained for an industrial injury outside a validly established and properly noticed medical provider network (MPN), the resulting non-MPN treatment reports are inadmissible and may not be relied upon to award benefits.
On April 20, 2011, the Appeals Board issued an en banc decision which held that where unauthorized treatment is obtained outside a validly established and properly noticed MPN, reports from the non-MPN doctors are inadmissible, and therefore may not be relied upon, and that defendant is not liable for the cost of the non-MPN reports. The Applicant filed a petition for reconsideration which was granted on July 14, 2011 to allow sufficient opportunity for the Board to study the factual and legal issues in the case.
The Supreme Court held that COLAs are to be calculated and applied prospectively commencing on the January 1 following the date on which the injured worker first becomes entitled to receive, and actually begins receiving, such benefit payments.
