Phillips v. WCAB

Filed 4/3/07 Phillips v. WCAB CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

PROCEEDINGS to review a decision of the Workers Compensation Appeals Board. Annulled and remanded with directions.

David Phillips, in pro. per., for Petitioner.

Robert W. Daneri, Chief Counsel, Suzanne Ah-Tye, Assistant Chief Counsel, and Don E. Clark, Senior Appellate Counsel, for Respondents On Line Communications and State Compensation Insurance Fund.

No appearance for Respondent Workers Compensation Appeals Board.

_______________________________

Petitioner David Phillips, in pro. per., sustained an industrial injury and entered into a compromise and release settlement agreement with respondent, State Compensation Insurance Fund. The compromise and release was approved as adequate compensation by the workers compensation administrative law judge (WCJ). Phillips timely petitioned to reopen the compromise and release on the ground that he was misled by respondent into believing that further benefits would be paid with documentation of additional earnings. The WCJ determined Phillips may have misunderstood the compromise and release; however, there was no fraud or good cause to reopen under Labor Code section 5803[1]and the Workers Compensation Appeals Board (WCAB) affirmed.

We conclude the record shows good cause to reopen under section 5803, even though there is substantial evidence no fraud was involved. The circumstances contributed to the misunderstanding by Phillips and his mistake or inadvertence was excusable. Moreover, there were procedural irregularities and the WCJ was unaware Phillips disputed earnings and benefits at the time the compromise and release was approved. Therefore, the compromise and release may have been inadequate compensation or inequitable.

Accordingly, we annul the WCABs decision and remand the matter for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner in pro. per., David Phillips, a truck driver for On Line Communications, injured his shoulder, back, hips and legs at work on September 17, 2001. Respondent, State Compensation Insurance Fund (SCIF), provided Phillips workers compensation benefits.

SCIF sent Phillips a compromise and release (C&R) settlement agreement for $45,000, which Phillips signed without counsel before a notary on April 11, 2003. The C&R indicated Phillips was a truck driver, earnings were $420 per week, and $16,098.42 in temporary disability indemnity was paid at the rate of $280 per week from September 17, 2001, to January 8, 2003.[2] The claims adjuster for SCIF, Guido Gibbons, signed the C&R on April 30, 2003, and mailed it to the WCAB. The WCJ issued an order approving compromise and release and award on May 12, 2003.[3]

On or about November 19, 2004, Phillips filed a petition to reopen and set aside the C&R. Phillips alleged that prior to the settlement he asked Gibbons to adjust the temporary disability indemnity paid with the aid of the information and assistance officer.[4]Gibbons responded, one thing did not have anything to do with the other. Phillips then signed the C&R but the adjustment was never made. In November of 2004, Gibbons requested tax information for 2000 and 2001, but then said to return to the information and assistance officer.

The parties proceeded to trial and Phillips testified in pro. per. He testified he had provided evidence of earnings to former SCIF adjuster, Antoinette Vines. The case was eventually transferred to Gibbons who forwarded the C&R, but Phillips did not sign it for a month because the amount was unfair and he did not understand it. Phillips informed the information and assistance officer and Gibbons indicated to Phillips that the C&R and earnings were unrelated, stating One thing does not have to do with the other. Gibbons also advised the C&R should be signed and corrections could be made in supplemental proceedings. After sending the earnings information again, the supervisor said nothing could be done without a petition to reopen.

On cross-examination, Phillips testified he waited about a year and a half because he spoke with Gibbons periodically. Phillips did not have evidence of mailing wage documentation but had proof at home the information was faxed. Phillips understood the C&R terms $420 and This settles all temporary total disability.

Gibbons testified and denied ever receiving a fax from Phillips or telling him to sign the C&R and wages would be negotiated later. Gibbons spoke with information and assistance officer Cynthia Goodwin over the phone, and she said the settlement was adequate. Goodwin provided documentation Phillips was to be a referee for the City of Los Angeles from January to March of 2002, but this was for events that had not occurred and was not evidence of earnings. Gibbons denied ever saying One thing does not have to do with the other.

Goodwin was called as a witness by SCIF and explained her responsibilities as an information and assistance officer including informing the public, advising injured workers of their rights and reviewing settlement documents. Goodwin typically asks if the C&R is understood and explains it releases future medical care. Goodwin remembered spending about five minutes with Phillips concerning the C&R. Since truck drivers generally make more than the maximum, Goodwin asked Phillips about earnings. She normally makes notes and does not recall whether notes were made, but her notes from the first visit were not in the WCAB file as they should have been. Goodwin did not remember calling the SCIF adjuster. Goodwin informed Phillips to provide evidence of earnings before an order approving the C&R issued.

Gibbons was called in rebuttal and testified he spoke with Goodwin on March 24, 2003, as verified by his computer notes. The notes also documented Phillips called and claimed he faxed wage information to Vines. The notes further indicated, it was his intention that the difference was to be paid only if the higher benefit rate were demonstrated, otherwise the Compromise and Release would control. On cross-examination, Gibbons denied receiving updated wage information from Phillips.

In an off-the-record discussion, the WCJ disclosed to the parties he had a brief conversation with Goodwin before trial and she indicated her intended testimony, at least in part. Following the WCJs disclosure, both sides agreed to waive this irregularity.

The WCJ also provided Phillips 10 days to submit proof he had faxed earnings documentation to SCIF. Phillips timely submitted a phone record indicating documents were faxed to SCIF on November 23, 2004. SCIF objected and alleged the tax documentation offered at trial and allegedly faxed was received with the petition to reopen and not before the C&R was approved.

The WCJ determined the record did not reflect fraud on the part of SCIF, and the C&R remained in effect. In the opinion on decision, the WCJ explained the testimony and documentation dated November 23, 2004, did not establish an earnings dispute or misrepresentation by SCIF prior to approval of the C&R.

Phillips timely petitioned the WCAB for reconsideration and alleged he had been fraudulently misled into believing he would be paid additional temporary disability indemnity upon proof of correct earnings after the C&R. Phillips explained he had mailed W-2 tax forms and a completed higher earnings information form to Vines, which were attached as exhibits. Phillips subsequently provided Gibbons with additional earnings and tax documentation, who said to sign the C&R and one thing didnt have anything to do with the other.

In the report on reconsideration, the WCJ noted the C&R had not been petitioned for reconsideration and relief could be denied.[5] Instead, a petition to reopen was filed, which could be granted if Phillips established fraud or good cause under section 5803. However, evidence of the fax submitted by Phillips was dated November 23, 2004, which contradicts his testimony that earnings documentation was provided before the C&R even though he was given the opportunity. Consequently, Gibbons was believed he had not misrepresented the earnings documentation was separate from the C&R and would be considered afterwards.

In addition, the C&R terms were clear and explained by Goodwin, Phillips testimony indicated he knew or should have known the C&R released further benefits, and the best remedy was simply not to sign the C&R in the first place. Fraud is a serious accusation and at best Phillips showed a misunderstanding or unilateral mistake, and mutual mistake is required in order to justify relief.

The WCAB adopted the WCJs decision and report and denied Phillips reconsideration.

Phillips, in pro. per., petitions for writ of review and incorporates the allegations contained in his petitions to reopen and for reconsideration. Phillips adds the decision is not supported by substantial evidence, and he only had a brief time with Goodwin and was never advised the C&R should be petitioned for reconsideration. Gibbons also lied when he testified that he never received a fax, and his computer notes prove what he said was misleading.

SCIF answers the WCJs findings of no fraud or good cause under section 5803 are supported by substantial evidence and a determination of credibility, which should be affirmed. The fax submitted by Phillips was dated after the C&R, which contradicts his testimony. The fax date also confirms the testimony by Gibbons that higher earnings documentation was not provided previously, and the C&R, which was clear and understood by Phillips, would control.

DISCUSSION

I. STANDARD OF REVIEW

A decision by the WCAB that is based on factual findings which are supported by substantial evidence is generally affirmed by the reviewing court.[6] However, the reviewing court may reject factual findings that are based on evidence that is erroneous, unreasonable, illogical, improbable, or inequitable when viewed in light of the entire record and the overall statutory scheme.[7]

II. GOOD CAUSE TO REOPEN UNDER SECTION 5803

The WCAB has continuing jurisdiction to rescind, alter, or amend any order, decision, or award, if a petition is filed within five years of the date of injury and good cause to reopen is alleged and shown.[8] An order approving compromise and release and award is an order, decision, or award that may be reopened for good cause under section 5803, although setting aside the C&R as inadequate compensation may be a separate issue.[9] Good cause to reopen may be alleged and shown by fraud or undue influence,[10]or excusable mistake of fact or law or inadvertence,[11]and depends largely

upon the circumstances of each case.[12] If a petition to reopen is not filed within five years of the date of injury, a showing of extrinsic fraud or mutual mistake is required as with any final judgment,[13]although extrinsic or intrinsic fraud or mistake may establish good cause under section 5803.[14]

In addition, good cause to reopen is generally not based on grounds within the knowledge of the WCAB at the time of the original order, decision, or award,[15]which renders the award inequitable.[16] Similarly, reopening for good cause is not a means to re-litigate issues that should have been raised in a petition for reconsideration, or to present evidence that is simply cumulative or results in a mere change of opinion by the WCAB.[17] Under exceptional circumstances, there may be good cause to reopen even where there was a failure to petition for reconsideration.[18]

III. THE RECORD SHOWS GOOD CAUSE TO REOPEN UNDER SECTION 5803.

A. Substantial Evidence Supports No Fraudulent Misrepresentation.

In denying the petition to reopen, the WCJ determined there was no fraudulent misrepresentation because Gibbons indicated the C&R would control unless higher earnings were documented, and Phillips knew or should have known the C&R released further benefits. Phillips contends Gibbons fraudulently misrepresented one thing didnt have anything to do with the other or higher earnings could be documented after the C&R. SCIF answers there is substantial evidence supporting the WCJs findings, which Phillips disputes.

We agree there is substantial evidence supporting the WCJs conclusion there was no fraudulent misrepresentation. Gibbons testimony that the C&R would control if higher earnings were not documented is corroborated by his computer notes. In addition, deliberately taking unfair advantage of Phillips is unlikely with Goodwins involvement.

B. Fraudulent Misrepresentation Is Not Required For Good Cause.

The WCJ also concluded that without proving fraudulent misrepresentation as alleged, Phillips had not shown good cause to reopen under section 5803. At best, reasoned the WCJ, Phillips misunderstood the C&R and unilateral mistake was insufficient.

Although fraud may establish good cause under section 5803,[19]it is not the only form of good cause sufficient to support relief. Because Phillips filed the petition to reopen within five years of the date of injury, the statements by Gibbons do not have to be fraudulent.[20] We shall determine whether the record or substantial evidence supports the WCJs findings Phillips may have misunderstood the C&R, and the mistake was unilateral and not good cause to reopen under section 5803.

C. The Record Shows Excusable Mistake Or Inadvertence.

The WCJ reasoned any misunderstanding by Phillips was based on a unilateral mistake and not good cause. The WCJ found Gibbons statements were not misleading, the C&R terms were clear, and Phillips was advised by Goodwin the benefits were released. Phillips argues the record shows he was misled, and SCIF responds there is substantial evidence to support the WCJs findings which Phillips disputes.

1. The WCJs Reasoning Is Not Supported By Substantial Evidence.

In a critical finding, the WCJ concluded Phillips had been given the opportunity to provide higher earnings documentation before the C&R, but failed to do so until faxing the information on November 23, 2004. Because Phillips testified higher earnings documentation had been provided previously, the WCJ reasoned his testimony he was misled into believing he could do so after the C&R was also unreliable. SCIF argues the date of the fax confirms earnings documentation had not been provided previously as testified by Gibbons and found by the WCJ.

However, the record indicates Phillips may have provided SCIF with higher earnings documentation by the time the C&R was signed by the parties or approved by the WCJ. In a form letter dated October 3, 2001, Vines requested documentation if earnings and the temporary disability indemnity rate were disputed. Although the SCIF form with earnings information from Phillips may not have been part of the evidentiary record,[21]Phillips testified he provided Vines with W-2 forms and higher earnings information and Gibbons only denied receiving previously faxed documentation from Phillips. Moreover, Gibbons computer notes verified that Phillips claimed he had sent wage information to Vines before the C&R was signed or approved.

In addition, Gibbons testified that Goodwin forwarded information indicating Phillips was to be a referee for the City of Los Angeles from January to March of 2002. Although Gibbons testified this was not evidence of earnings, Goodwin apparently related the information and future jobs or earnings may be relevant in establishing the rate of earnings and temporary disability indemnity.[22]

Therefore, the WCJs finding and reasoning Phillips failed to provide higher earnings documentation until the fax of November 23, 2004, is inconsistent with the record and not substantial evidence.[23] Instead, the record indicates Phillips disputed earnings and the temporary disability indemnity rate and higher earnings documentation had been provided at the time the C&R was approved.

2. The Circumstances Contributed To The Misunderstanding Or Mistake.

The WCJ found Phillips may have misunderstood the C&R, but good cause to reopen under section 5803 was not shown because the mistake was unilateral. However, Gibbons testified at trial from his computer notes he had indicated to Phillips it was his intention that the difference was to be paid only if the higher benefit rate were demonstrated, otherwise the Compromise and Release would control. Although Gibbons, who was an adjuster in the workers compensation system, may have understood the higher benefit rate should be demonstrated before the C&R is signed or approved, the computer notes are ambiguous as to whether the higher benefit rate could be demonstrated after the C&R. Phillips, who was in pro. per., understandably may have been confused or mistaken, even though the C&R terms were clear and explained by Goodwin. Goodwin also informed Phillips truck drivers may be maximum earners, and Goodwin and Phillips provided earnings documentation to SCIF.

Therefore, the record and substantial evidence support the WCJs finding Phillips may have misunderstood the C&R. However, the record also indicates the statements by Gibbons and the circumstances involving Goodwin contributed to the misunderstanding or mistake by Phillips. Consequently, the misunderstanding or mistake is excusable and there is good cause to reopen under section 5803.[24]

D. The Procedural Irregularities Provide Additional Good Cause.

Procedural irregularity, such as the failure to follow procedure which deprives due process, may provide good cause under section 5803.[25] Therefore, we shall address procedural irregularity in this case.

1. The WCJs Ex Parte Communication With Goodwin

The record indicates the WCJ had an off-the-record discussion with Phillips and SCIF in which the WCJ disclosed he had a conversation with Goodwin before trial in which she indicated her intended testimony, at least in part. Exactly what was said between the WCJ and Goodwin, or the WCJ, Phillips and SCIF, is not disclosed. Consequently, whether the off-the-record discussions had a prejudicial effect on Goodwins substantive testimony or due process is unknown.

Although both sides agreed to waive this irregularity, Phillips was without counsel and WCJs are required to exercise extra precaution in protecting due process rights of unrepresented employees and employers.[26] In addition, WCJs are subject to the California Code of Judicial Ethics, and Canon 3 prohibits ex parte communication with a percipient witness regarding substantive matters in a pending case.[27] Even if the WCJs ex parte communication with Goodwin before trial was not prejudicial, such a discussion tends to erode public confidence in the integrity and impartiality of the judiciary.[28] At the very least, such procedural irregularities require a retrial,[29]especially where the injured worker is in pro. per. Considering the potential effect on Goodwins substantive testimony and due process, and the good cause to reopen shown by the record, we conclude that the WCJs off-the-record discussions provide additional good cause to reopen under section 5803.[30]

2. Notes By Goodwin Were Not Part Of The WCAB File.

Goodwin testified she normally made notes but they were not in the WCAB file as they should have been, although she couldnt recall whether notes were made. Whether notes were made or missing, notes by Goodwin that should have been part of the WCAB file and were not is a procedural irregularity, which may provide additional good cause to reopen under section 5803.[31]

Although Goodwin testified she remembered Phillips and the C&R, she did not recall the phone conversation with Gibbons or testify about the earnings documentation provided to SCIF. More importantly, file notes from Goodwin presumably would have alerted the WCJ that Phillips disputed earnings and the rate of temporary disability indemnity at the time the C&R was approved.

Before issuing an order approving the C&R, the WCJ is required to carefully review the WCAB file to determine whether the C&R provides adequate compensation.[32] The WCAB in its Policy & Procedural Manual has indicated particular concern with correct earnings and the rate of temporary disability indemnity when approving pro. per. settlements. Section 1.91 provides in part: When a Compromise and Release or Stipulations with Request for Award involving an unrepresented employee is submitted to the WCAB for approval, the following documents should be included . . . . [] Basis and calculation of average weekly earnings if less than maximum . . . . And in determining whether approval of the C&R should be withheld and the matter set for adequacy,[33]section 1.90 instructs the WCJ to consider, In pro per cases only . . . the indemnity rate is less than maximum and either inconsistent with the earnings information provided, or cannot be verified for a lack of earnings information.

In this case, the approved C&R indicates weekly earnings and the rate of temporary disability indemnity were approximately 57 percent of the maximum.[34] The C&R also sets forth Phillips was a truck driver, whom Goodwin testified normally earned the maximum. However, there is nothing in the record to suggest the WCJ was aware Phillips disputed earnings or the rate of temporary disability indemnity. Had the WCJ known of the dispute, it is likely the WCJ would have inquired further or set the matter to determine adequacy, considering section 1.90 of the WCAB Policy & Procedural Manual and the C&R indicates payment of $16,098.42 in temporary disability indemnity for a period of about 16 months.

Therefore, we conclude the lack of Goodwins notes in the WCAB file is a procedural irregularity, which provides additional good cause to reopen under section 5803. Not only were notes by Goodwin lacking at trial but at the time the WCJ approved the C&R, which may have indicated the C&R may be inadequate compensation or inequitable.[35]

E. Good Cause To Reopen Without Petitioning For Reconsideration

The WCJ reported the petition to reopen could be denied because Phillips failed to petition the C&R for reconsideration.[36] Although good cause is generally not based on grounds a party should have included in a petition for reconsideration,[37]or that were known to the WCAB at the time of the original order, decision, or award,[38]exceptional circumstances may provide good cause to reopen where there was no petition for reconsideration.[39]

1. Exceptional Circumstances Provide Good Cause To Reopen.

Although the record indicates Phillips disputed earnings and the temporary disability indemnity rate at the time the C&R was approved, Phillips claims he was never advised the C&R should be petitioned for reconsideration. We note Goodwin did not testify she advised Phillips about petitioning the C&R for reconsideration. There is also nothing in the record, including the order approving compromise and release issued by the WCJ, indicating Phillips knew or should have known to petition the C&R for reconsideration.[40]

Instead, the record indicates Phillips, who was in pro. per., relied on the workers compensation system, and mistakenly believed challenging the C&R was unnecessary because earnings could be further documented. Moreover, the WCJ was unaware of Goodwins involvement and the dispute over earnings and the temporary disability indemnity rate at the time the C&R was approved for adequacy. We conclude the circumstances shown by the record are exceptional, and provide good cause to reopen even though Phillips did not petition the C&R for reconsideration.[41]

DISPOSITION

There is good cause to reopen under section 5803. Good cause to reopen in this case is separate from the determination that the C&R is adequate compensation or should be set aside.[42] Whether the C&R is adequate compensation or should be set aside is to be determined on remand with consideration for the earnings claimed by Phillips.

The decision of the WCAB is annulled and the matter is remanded for further proceedings consistent with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, Acting P. J.

We concur:

WOODS, J.

ZELON, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

[1] Labor Code section 5803 states: The appeals board has continuing jurisdiction over all its orders, decisions, and awards made and entered under the provisions of this division, and the decisions and orders of the rehabilitation unit established under Section 139.5. At any time, upon notice and after an opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefor. [] This power includes the right to review, grant or regrant, diminish, increase, or terminate, within the limits prescribed by this division, any compensation awarded, upon the grounds that the disability of the person in whose favor the award was made has either recurred, increased, diminished, or terminated.

All further references to statute are to the Labor Code unless otherwise stated.

Section 5803 is limited by section 5804, which states in part: No award of compensation shall be rescinded, altered, or amended after five years from the date of the injury except upon a petition by a party in interest filed within such five years and any counterpetition seeking other relief filed by the adverse party within 30 days of the original petition raising issues in addition to those raised by such original petition.

[2] Section 4653 provides in part: If the injury causes temporary total disability, the disability payment is two-thirds of the average weekly earnings during the period of such disability . . . .

For injuries on or after July 1, 1996, and before January 1, 2003, the maximum rate of temporary disability indemnity was $490 per week based on average weekly earnings of no more than $735. ( 4453.)

[3] Section 5001 states in part: No release of liability or compromise agreement is valid unless it is approved by the appeals board or referee.

Section 5002 states: A copy of the release or compromise agreement signed by both parties shall forthwith be filed with the appeals board. Upon filing with and approval by the appeals board, it may, without notice, of its own motion or on the application of either party, enter its award based upon the release or compromise agreement.

[4] Section 139.6 provides in part: (b) In each district office of the division, the administrative director shall appoint an information and assistance officer . . . . [] (c) Each information and assistance officer shall be responsible for the performance of the following duties: [] (1) Providing continuing information concerning rights, benefits, and obligations under workers compensation laws to injured workers, employers, lien claimants, and other interested parties. [] (2) Upon request by the injured worker, assisting in the prompt resolution of misunderstandings, disputes, and controversies arising out of claims for compensation, without formal proceedings, in order that full and timely compensation benefits shall be furnished.

[5] Section 5900, subdivision (a) provides in part: Any person aggrieved directly or indirectly by any final order, decision, or award . . . may petition the appeals board for reconsideration . . . .

Section 5903 also provides in part: At any time within 20 days after the service of any final order, decision, or award made and filed by the appeals board or a workers compensation judge granting or denying compensation, or arising out of or incidental thereto, any person aggrieved thereby may petition for reconsideration upon one or more of the following grounds . . . . [] . . . [] Nothing contained in this section shall limit the grant of continuing jurisdiction contained in Sections 5803 to 5805, inclusive.

[6]Western Growers Ins. Co. v. Workers Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 233 (Western Growers).

[7]Western Growers, supra, 16 Cal.App.4th at page 233; Bracken v. Workers Comp. Appeals Bd. (1989) 214 Cal.App.3d 246, 254 (Bracken).

[8] Sections 5803, 5804.

[9] Section 5002; Fidelity & Cas. Co. of New York v. Workers Comp. Appeals Bd. (1980) 103 Cal.App.3d 1001, 1010 (Fidelity & Cas. Co.) (showing of good cause to reopen required before ordering new medical evidence to determine adequacy of C&R); Raischell & Cottrell, Inc. v. Workmens Comp. App. Bd. (1967) 249 Cal.App.2d 991, 997 (Raischell & Cottrell, Inc.) (insurer may raise affirmative defense obligation was satisfied in whole or part by C&R with other defendants).

[10]Fidelity & Cas. Co., supra, 103 Cal.App.3d at page 1013.

[11]Bartlett Hayward Co. v. Indus. Acc. Com. (1928) 203 Cal. 522, 532-533, 536 (Bartlett Hayward Co.) (court decision indicating workers loss of good eye equates to 100 percent permanent disability good cause to reopen award of 25 percent); Colonial Etc. Ins. Co. v. Ind. Acc. Com. (1941) 47 Cal.App.2d 487, 489-490 (Colonial Etc. Ins.) (disability indemnity rate based on wages received rather than average weekly earnings good cause to reopen).

[12]Pullman Co. v. Industrial Acc. Com. (1946) 28 Cal.2d 379, 387-388 (Pullman Co.) (permanent disability unknown when temporary disability awarded); Bartlett Hayward Co., supra, 203 Cal. at page 532; Nicky Blairs Restaurant v. Workers Comp. Appeals Bd. (1980) 109 Cal.App.3d 941, 955-957 (Nicky Blairs Restaurant) (independent medical examiners opinion of condition at time of award not new evidence of new and further disability or good cause).

[13]Smith v. Workers Comp. Appeals Bd. (1985) 168 Cal.App.3d 1160, 1169-1171 (Smith) (extrinsic fraud or mutual mistake required to set aside C&R after five years from date of injury, unilateral mistake and procedural irregularity or good cause insufficient).

[14]Johnson v. Workmens Comp. App. Bd. (1970) 2 Cal.3d 964, 1008 (Johnson) (employee may C&R death benefits and dependent entitled to raise intrinsic fraud or mistake, duress or undue influence); Brunski v. Industrial Acc. Com. (1928) 203 Cal. 761, 764-765 (Brunski) (injured employees false trial testimony good cause); Smith, supra, 168 Cal.App.3d at pages 1171-1173.

[15]Young v. Ind. Acc. Com. (1944) 63 Cal.App.2d 286, 288-289 (Young) (good cause requires new fact or circumstance); Colonial Etc. Ins., supra, 47 Cal.App.2d 487.

[16]LeBoeuf v. Workers Comp. Appeals Bd. (1983) 34 Cal.3d 234, 241-242 (LeBoeuf) (finding employee unqualified for vocational rehabilitation good cause to reopen permanent disability award); Pullman Co., supra, 28 Cal.2d at page 388; Fidelity & Cas. Co., supra, 103 Cal.App.3d at page 1012; Nicky Blairs Restaurant, supra, 109 Cal.App.3d at pages 955-956.

[17]Merritt-Chapman & Scott Corp. v. Indus.A.C. (1936) 6 Cal.2d 314, 320-323 (Merritt-Chapman & Scott Corp.) (no good cause where evidence same for hearing and prior petitions); Nicky Blairs Restaurant, supra, 109 Cal.App.3d at pages 955-957.

[18]Bartlett Hayward Co., supra, 203 Cal. at pages 532-536; Aliano v. Workers Comp. Appeals Bd. (1979)100 Cal.App.3d 341, 366, 369-370 (Aliano) (petition for reconsideration not required where defendants failure to investigate and withholding of medical evidence good cause to reopen).

[19]Johnson, supra, 2 Cal.3d at page 1008.

[20]Smith, supra, 168 Cal.App.3d at pages 1169-1171.

[21] The SCIF form with earnings information was attached as an exhibit to Phillips petition for reconsideration.

[22] See Argonaut Ins. Co. v. Industrial Acc. Com. (1962) 57 Cal.2d 589 (all relevant facts should be considered in estimating earning capacity, including ability, age, health, willingness, opportunities, skill, education, and labor market); Goytia v. Workmens Comp. Appeals Bd. (1972) 6 Cal.3d 660 (post-injury earnings should be considered under section 4453, even without evidence employee had taken steps to improve earnings at time of injury); Pascoe v. Workmens Comp. Appeals Bd. (1975) 46 Cal.App.3d 146 (nurses aid who had completed half of two-year nursing school when injured entitled to indemnity rate for licensed registered nurse); Jeffares v. Workmens Comp. App. Bd. (1970) 6 Cal.App.3d 548 (recreational worker and student delayed six months from teaching entitled to temporary disability indemnity rate based on earning capacity of teacher); Lipps v. Workers Comp. Appeals Bd. (1985) 50 Cal.Comp.Cases 18 (actual earnings used where employee in college at time of injury and no showing of specific job prospect and potential earnings).

[23]Western Growers, supra, 16 Cal.App.4th at page 233; Bracken, supra, 214 Cal.App.3d at page 254.

[24]Bartlett Hayward Co., supra, 203 Cal. at pages 532-533; Smith, supra,168 Cal.App.3d at pages1169-1173; Aliano, supra,100 Cal.App.3d at pages 366, 369-370; Colonial Etc. Ins., supra, 47 Cal.App.2d at pages 489-490.

[25] See Smith, supra, 168 Cal.App.3d at pages 1171-1173, which cites Brunski, supra, 203 Cal. at pages 764-765 and Nicky Blairs Restaurant, supra, 109 Cal.App.3d at pages 955-958.

[26] See WCAB Policy & Procedural Manual, sections 1.35, 1.45 and 1.90.

[27] See section 123.6, which states in part: All workers compensation administrative law judges employed by the administrative director and supervised by the court administrator shall subscribe to the Code of Judicial Ethics adopted by the Supreme Court pursuant to subdivision (m) of Section 18 of Article VI of the California Constitution for the conduct of judges and shall not otherwise, directly or indirectly, engage in conduct contrary to that code, or to the commentary to the Code of Judicial Ethics.

See also WCAB Policy & Procedural Manual, section 1.125; Fremont Indemnity Co. v. Workers Comp. Appeals Bd. (1984) 153 Cal.App.3d 965, 971-974 (Fremont Indemnity Co.) (WCJs ex parte communications with independent medical examiner disclosed during pending proceeding violated Code of Judicial Conduct and due process).

[28]Fremont Indemnity Co., supra, 153 Cal.App.3d at page 974.

[29]Fremont Indemnity Co., supra, 153 Cal.App.3d at pages 971-974.

[30]Smith, supra, 168 Cal.App.3d at pages 1171-1173, which cites Brunski, supra, 203 Cal. at pages 764-765 and Nicky Blairs Restaurant, supra, 109 Cal.App.3d at pages 955-958.

[31] See Smith, supra, 168 Cal.App.3d at pages 1171-1173, which cites Brunski, supra, 203 Cal. at pages 764-765 and Nicky Blairs Restaurant, supra, 109 Cal.App.3d at pages 955-958.

[32] See California Code of Regulations, title 8, section 10870, which states in part: Agreements that provide for the payment of less than the full amount of compensation due or to become due and undertake to release the employer from all future liability will be approved only where it appears that a reasonable doubt exists as to the rights of the parties or that approval is in the best interest of the parties.

See also WCAB Policy & Procedural Manual, section 1.90 and Burbank Studios v. Workers Comp. Appeals Bd. (1982) 134 Cal.App.3d 929, 934 (Burbank Studios) (WCAB may not rewrite C&R by striking unacceptable provisions).

[33] See title 8, section 10882, which provides: The Workers Compensation Appeals Board shall inquire into the adequacy of all compromise and release agreements and stipulations with request for award, and may set the matter for hearing to take evidence when necessary to determine whether the agreement should be approved or disapproved, or issue findings and awards.

See also Johnson, supra, 2 Cal.3d at pages 973-974; Burbank Studios, supra, 134 Cal.App.3d at page 934; Carter v. County of Los Angeles (1986) 51 Cal.Comp.Cases 259 (WCJ should set matter for adequacy if compromise and release of injury during vocational rehabilitation not approved).

[34] See footnote 2, above.

[35]LeBoeuf, supra, 34 Cal.3d at pages 241-242; Pullman Co., supra, 28 Cal.2d at page 388; Fidelity & Casualty Co., supra, 103 Cal.App.3d at page 1012; Nicky Blairs Restaurant, supra, 109 Cal.App.3d at pages 955-956.

[36] See footnote 5, above.

[37]Merritt-Chapman & Scott Corp., supra, 6 Cal.2d at pages 320-323; Nicky Blairs Restaurant, supra, 109 Cal.App.3d at pages 955-957.

[38]Young, supra, 63 Cal.App.2d at pages 288-289; Colonial Etc. Ins., supra, 47 Cal.App.2d 487.

[39]Bartlett Hayward Co., supra, 203 Cal. at pages 532-536; Aliano, supra, 100 Cal.App.3d at pages 366, 369-370.

[40] We point out that the order approving compromise and release in the record is a one-page form that contains information covering various topics. For example, there are boxes to check whether there is a release of death benefits or vocational rehabilitation rights or injury. In addition, there are lines on which to specify amounts to be paid and deductions and to designate which party is to serve the order. However, there is no information about petitioning the C&R for reconsideration. Perhaps such information could be included in a case where the employee or employer is in pro. per.

[41]Bartlett Hayward Co., supra, 203 Cal. at pages 532-536; Aliano, supra, 100 Cal.App.3d at pages 366, 369-370. See also Formica Corp. v. Workers Comp. Appeals Bd. (1999) 64 Cal.Comp.Cases 1398 (late petition for reconsideration treated as petition to reopen where good cause shown).

[42] Section 5002; Fidelity & Casualty Co., supra, 103 Cal.App.3d at page 1010; Raischell & Cottrell, Inc., supra, 249 Cal.App.2d at page 997.