Panel Decries Procedural Violations

Hernandez v. AMS Staff Leasing (April 11, 2011) 76 Cal. Comp. Cases ___:  For the first time since July 9, 2007 the WCAB has designated a Significant Panel Decision [click for explanation].

The “significance” of this case has nothing to do with its substance and everything to do with WCAB procedure.  Specifically, the WCAB outlined numerous procedural errors and omissions including:

1.  The trial judge failed to prepare a Minutes of Hearing and Summary of Evidence as required under California Code of Regulations, title 8, section 100566.
2.  The trial judge failed to prepare an opinion on decision explaining the basis for the decision as required under Labor Code section 5313.
3.  The parties and WCJ failed to make sure the record was complete including copies of exhibits.
4.  A compromise and release agreement was signed by a WCJ other than the trial judge while defendant’s Petition for Removal was pending without notice to the WCAB of withdrawal of the Petition.

This case is the most recent in a string of panel decisions decrying the continued disregard of WCAB procedure by all involved in the system.  Past decisions have primarily targeted defense attorneys with at least 5 different attorneys being sanctioned by panels for disregarding procedure.  Lien claimants and their representatives have also been sanctioned for frivolous litigation. 

This case appears to be a proverbial “shot across the bow” for Workers’ Compensation Judges.  The trial judge was chastised for failing to make a record and comply with trial procedures.  The Panel also warned the WCJ who approved the compromise and release.  It noted that a WCJ is required, after a petition for removal has been filed, to consult with the presiding WCJ prior to proceeding on a case.  (Cal. Code Regs., tit. 8, § 10843(e).)  It then observed that it did not appear the WCJ  did so, and thus the settlement should not have been approved.  Fortunately for the litigants, the Panel elected to leave it undisturbed. 

The WCAB does seem intent on raising the level of practice across the board.  Again, in this case defense attorneys seem to be a prime target.  The Panel observed neither EAMS nor the WCAB received a request that the petition for removal be withdrawn.  “Failure to withdraw a pending petition in these circumstances, thereby wasting our time and resources, is sanctionable conduct.”  The panel then let the defendant off the hook stating “given the state of the record in this case, it is entirely possible that a request to withdraw the petition was filed, but has not yet been scanned into EAMS.”

The case also publicizes something well known to all in the WCAB community – EAMS has made a bad problem worse.  The Panel observed that in this case, the defendant reported that its exhibits had not been scanned into EAMS due to a system backlog.    It further pointed out that the backlog has been made worse by furloughs and a hiring freeze.  To circumvent the problem the WCAB proposed that that unscanned documents be, in the worst case scenario, filed or bradded and forwarded in paper format to the WCAB for consideration when a Petition for Removal or Reconsideration is filed.  It then explained that such matters must take priority over routine filing.  Thus, the backlog will be exacerbated by each petition for reconsideration or removal.  This particularly troubling for Southern California litigants who see lien claimants filing for reconsideration of every decision which goes against them.

The WCAB also noted that EAMS did not reflect that a compromise and release had been approved.  Instead EAMS shows the cases “At recon.”  It is unclear exactly how the Panel ultimately learned of the settlement.

Regardless of the operational difficulties posed by EAMS, the Panel put the ultimate responsibility on the litigants.  “While there are very real problems causing system-wide backlogs, these problems do not excuse the WCJ or the litigants from ensuring that a complete and properly organized record is available to the Appeals Board.”

For all members of the workers’ compensation system the indication is clear.  Follow the rules or face the consequences.

 

Opinion Filed April 11, 2011.

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