Ramallah v. WCAB
Filed 6/21/07 Ramallah v. WCAB CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
RAMALLAH, INC. et al., Petitioners, v. WORKERS COMPENSATION APPEALS BOARD and CAROL McKINLEY, Respondents. | F052841 (WCAB Nos. FRE 0192365, FRE 0192364, FRE 0198592) OPINION |
THE COURT*
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers Compensation Appeals Board. Ronnie G. Caplane, William K. OBrien, and James C. Cuneo, Commissioners. Keigo Obata, Workers Compensation Administrative Law Judge.
John Lynn Bessinger, for Petitioners.
No appearance by Respondent Workers Compensation Appeals Board.
Thomas J. Tusan, for Respondent Carol McKinley.
-ooOoo-
Petitioners Ramallah, Inc. (Ramallah) and General Insurance Company of America (General) ask this court to annul a decision of the Workers Compensation Appeals Board (WCAB) in which the WCAB concluded it did not have jurisdiction to review a second petition for reconsideration erroneously filed at the Fresno office of the WCAB and not timely received by the WCAB in San Francisco. Agreeing with the WCAB, we will deny the petition and remand for supplemental attorney fees.
BACKGROUND
Respondent Carol McKinley (McKinley) worked as a sales representative for Ramallah between February 1994 and July 1999 when she filed three different workers compensation cumulative trauma claims to her feet and her lower back. The claims involved overlapping dates of coverage between Ramallahs two insurers, General and Fremont Compensation. Fremont Compensation was subsequently found insolvent and its claims were covered by the California Insurance Guarantee Association (Freemont/CIGA).
On August 15, 2006, a workers compensation administrative law judge (WCJ) issued a Joint Findings and Award concluding McKinley sustained combined injuries in two of the claims causing permanent disability of 77 percent, amounting to 489.50 weekly payments of $320 and a life pension of $65.71 per week thereafter. In allocating the insurers proportionate share of liability, the WCJ found General liable for 9/65 of the award and Fremont/CIGA liable for 56/65 of the award. Just above the WCJs signature, the award stated in bold: A Petition for Reconsideration from this decision shall be filed only at the Fresno district office of the Workers Compensation Appeals Board.
On September 1, 2006, General filed a petition for reconsideration (1st Petition) with the WCAB contending the WCJ exceeded his powers, the evidence did not justify the findings, and the findings did not support the award. The 1st Petition was properly filed in the WCABs Fresno district office.
On October 31, 2006, the WCAB in San Francisco denied the 1st Petition, but also granted another petition filed by Fremont/CIGA to correct a clerical error in calculating the insurers proportionate share of liability. The WCAB amended the WCJs findings by allocating 12/21 liability to Fremont/CIGA and 9/21 to General. Procedures for appealing did not appear on the face of the WCABs decision, but are set forth in California Code of Regulations, title 8, section 10840.[1]
On November 20, 2006, General filed a second petition for reconsideration (2nd Petition) at the Fresno district office of the WCAB. According to General, the Petition was improperly forwarded by the district office to the San Francisco Appeals Board where it was filed on 11/28/06. The 2nd Petition expressly alleged General was aggrieved by the WCABs decision of October 31, 2006, because it was procured by fraud, as evidenced by newly acquired sub rosa video surveillance of McKinley performing activities she informed her evaluating physician that she could not perform.
Fremont/CIGA also filed a petition for reconsideration, which was received by the WCAB in San Francisco on November 30, 2006.
On January 22, 2007, the WCAB issued an Opinion and Order Dismissing Petitions for Reconsideration. The WCAB concluded that jurisdiction to reconsider its October 31, 2006, decision expired on November 27, 2006, and therefore neither petition for reconsideration filed by General or Fremont/CIGA and received at the San Francisco WCAB on November 28, 2006, and November 30, 2006, was timely filed.
On February 6, 2007, General filed a third petition for reconsideration (3rd Petition) with the WCAB in San Francisco, stating General was aggrieved by the WCABs January 22, 2007, opinion and order. General argued that the 2nd Petition was a new pleading, unrelated to the issues Petitioners had raised in their first Petition, and therefore was timely filed at the Fresno district office on November 20, 2006. The 3rd Petition continued to reassert Petitioners allegations of fraud.
On April 9, 2007, the WCAB dismissed Generals 3rd Petition and described it as an impermissible successive petition for reconsideration of both the WCJs initial August 15, 2006, determination and the WCABs October 31, 2006, decision on reconsideration. The WCAB explained there was no legal basis for General to petition for reconsideration from its improperly filed 2nd Petition.
DISCUSSION
In petitioning this court for review, Petitioners respectfully request that the pleading error made by their attorney ought to be overlooked due to the informal nature of WCAB proceedings, so too that substantial justice will occur and that the public policy to strike down fraud wherever and whenever it raises its ugly head will be supported and sustained by law enforcement agencies, the Appeals Board and the courts of this state. Believing it somehow renders their successive petitions for reconsideration reviewable as timely filed in Fresno instead of San Francisco, Petitioners contend the 2nd Petition incorrectly states that they were appealing the October 31, 2006 Order of the Appeals Board when, in fact they were appealing the August 15, 2006 Joint Findings And Award issued by [the WCJ] based upon newly discovered evidence and fraud. Petitioners, however, do not overcome the jurisdictional limitations of both the WCAB and this court.
When a party fails to seek review within the time allotted, both the WCAB and the court is without jurisdiction to hear future challenges to the decision. (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1182.) Authorizing a process for the WCAB to reconsider a decision, Labor Code section 5900, subdivision (a) provides:
Any person aggrieved directly or indirectly by any final order, decision, or award made and filed by the appeals board or a workers compensation judge may petition the appeals board for reconsideration in respect to any matters determined or covered by the final order, decision, or award and specified in the petition for reconsideration. The petition shall be made only within the time and in the manner specified in this chapter. (Emphasis added.)
A petition for reconsideration may be filed by an aggrieved party any time within 20 days after the service of any final order, decision or award of the WCAB or WCJ. (Lab. Code, 5903) Because Labor Code section 5903 counts 20 days from the date of service, Code of Civil Procedure, section 1013, subdivision (a) extends jurisdiction for WCAB review an additional 5 days for mailing. (Camper v. Workers Comp. Appeals Bd. (1992) 3 Cal.4th 679, 684-685.) If the 25th day falls on a Saturday, Sunday, or a holiday, the jurisdictional period is further extended to the following day. (Code of Civil Proc., 10, 12, 12a, 12b.) Applying these jurisdictional principles, the last day for an aggrieved party to file a petition for reconsideration from the WCJs August 15, 2006, Joint Findings and Award was September 11, 2006.
On September 1, 2006, petitioners timely filed their 1st Petition, which the WCAB denied on October 31, 2006. Although their 2nd Petition filed at the Fresno district office of the WCAB on November 20, 2006, expressly stated Petitioners were aggrieved by the WCABs October 31, 2006, decision, Petitioners now claim the reference was mistaken and that the 2nd Petition should have instead sought review from the WCJs original August 15, 2006, findings. Petitioners apparently make this claim because a petition for reconsideration from a WCJ determination is properly filed at the local office, but a petition for reconsideration from a WCAB opinion and decision must be filed with the WCAB in San Francisco. (Cal. Code of Regs, tit. 8, 10840, see fn. 1, ante.)
Assuming the veracity of Petitioners allegation that their attorney committed a pleading error, they do not present any legal authority permitting the filing of two successive petitions for reconsideration from a single WCJ decision. Further, even if the WCAB has jurisdiction to entertain two distinct petitions for reconsideration from the same WCJ determination -- a proposition which Petitioners have not demonstrated -- there is no authority for doing so after the initial jurisdictional period ends. Indeed, Labor Code section 5903 contemplates that a petition for reconsideration, even one alleging the decision was procured by fraud or the discovery of new evidence, is limited to the initial jurisdictional period:
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 and no other:
(a) That by the order, decision, or award made and filed by the appeals board or the workers' compensation judge, the appeals board acted without or in excess of its powers.
(b) That the order, decision, or award was procured by fraud.
(c) That the evidence does not justify the findings of fact.
(d) That the petitioner has discovered new evidence material to him or her, which he or she could not, with reasonable diligence, have discovered and produced at the hearing.
(e) That the findings of fact do not support the order, decision, or award. (Lab. Code, 5903, emphasis added.)
Petitioners contend that a Petition for Reconsideration based upon fraud is not subject to the usual 25 day timeframe within which to file a Petition for Reconsideration from the Findings of Fact and Award because Penal Code section 803, subdivision (c)(6) provides that the statute of limitations for felony insurance fraud does not begin until the date of discovery of the offense. The Penal Code, however, is inapplicable to workers compensation proceedings. Labor Code section 5903 permits the WCAB to reconsider whether a workers compensation order, decision, or award was procured by fraud; it does not permit the WCAB to convict an applicant for a criminal offense.
The jurisdictional period to petition the WCAB for reconsideration from the WCJs August 15, 2006, decision expired on September 11, 2006. Petitioners 2nd Petition filed at the Fresno WCAB office on November 20, 2006, by which they now claim they sought review of the WCJs August 15, 2006 decision, was therefore untimely. Since the 2nd Petition was not properly filed, Petitioners had no legal grounds to file the 3rd Petition. There is no reviewable order before this court.
DISPOSITION
The Petition for Writ of Review, filed May 16, 2007, is denied.
Under authority of Labor Code section 5801, we find no reasonable basis for the petition and remand the cause to the WCAB to make a supplemental award to the attorney of respondent Carol McKinley for legal services rendered in answering the petition.
This opinion is final forthwith as to this court.
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*Before Harris, Acting P.J., Levy, J., and Dawson, J.
[1] Petitions for reconsideration from final orders, decisions or awards and answers thereto shall be filed at the district office of the Workers Compensation Appeals Board from which the order, decision or award issued. Petitions for reconsideration from final orders, decisions or awards issued by the Appeals Board in San Francisco and answers thereto shall be filed at the office of the Appeals Board in San Francisco. Petitions for reconsideration received in any district office or the office of the Appeals Board in San Francisco, except as provided by this rule, shall neither be accepted for filing nor deemed filed for any purpose. (Cal. Code of Regs., tit. 8, 10840, emphasis added.)
