NESTLÉ ICE CREAM COMPANY, LLC v. WORKERS' COMPENSATION APPEALS BOARD and KEN RYERSON

Filed 1/5/07; pub. order 1/17/07 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

            A Workers' Compensation judge (WCJ) awarded disability and vocational rehabilitation benefits to respondent Ken Ryerson (Ryerson).  At Ryerson's request, the WCJ amended the award to correctly state the names of the parties and to increase the amount awarded.  Employer Nestlé Ice Cream Company (Nestlé) filed a petition for reconsideration before the Workers' Compensation Appeals Board (Board) that was timely as to the amended award, but untimely as to the original award.  The Board dismissed the petition as untimely. 

            When an award is amended by the WCJ before a petition for reconsideration is filed, the time for seeking reconsideration runs from the date of the original order when the amendment is clerical in nature.  When the amendment effects a substantial or material change in the award or involves the exercise of a judicial function or judicial discretion, the time runs instead from the date of the amended order.  In this case, the WCJ's amendment effected a substantial and material change in the award and amounted to a judicial act, rather than the mere correction of a clerical error.  We annul the Board's order dismissing the petition for reconsideration as untimely and remand the matter for resolution on the merits.

FACTS AND PROCEDURAL HISTORY

            Ryerson worked as a financial analyst for Nestlé, which is self-insured for purposes of the workers' compensation law.  He developed back, neck and wrist problems and filed a worker's compensation claim for cumulative trauma during a period ending on November 1, 2001.  Ryerson was placed on leave and was diagnosed with chronic cervical and thoracic strain, bilateral cervicobrachial syndrome and repetitive strain injury.  These conditions were exacerbated when Ryerson used a computer keyboard, which his job required him to do almost continuously.  

            Ryerson's primary treating physician was Dr. Brendan Morley, who declared on March 2, 2004 that Ryerson could return to work with the restriction that he could work no more than eight hours a day or 40 hours a week.  Dr. Morley released Ryerson to resume his full duties without restriction on April 27, 2004, and pronounced his condition permanent and stationary as of July 15, 2004.  On November 8, 2004, Dr. Morley wrote a report clarifying that he had fully released Ryerson in April because Nestlé would not allow him to return with any restrictions and Ryerson wanted to resume his duties.  Meanwhile, a rehabilitation plan was developed to enable Ryerson to become a real estate broker, which would require less desk time and less work on a computer.            

            The case went to trial before the WCJ, who found that Ryerson had become permanent and stationary on July 15, 2004, and was 28 percent disabled, entitling him to a total of $19,337.50 in permanent disability benefits.  (Lab. Code, §  4658.)[1]  She awarded additional temporary disability benefits at $728 per week from March 22, 2004 (the date temporary disability payments had ceased), through July 15, 2004 (the date Ryerson was declared permanent and stationary).  (§§  4650, subd.  (a),  4653.)  She determined that Ryerson was entitled to a vocational rehabilitation maintenance allowance at the temporary disability rate with no cap, and set a split rate of $728 per week through December 31, 2004, and $840 per week thereafter.  (§  139.5, former §  4642.)  The WCJ further found that Nestlé had unreasonably delayed in providing vocational rehabilitation services and in making permanent disability advances, warranting a 25-percent penalty as to each.  (§  5814, subd. (a).)  

            The WCJ's findings and award was filed and served on April 3, 2006.  Ryerson's counsel sent a letter to the WCJ on April 10, asking her to correct the names of the parties in the text of the award, which erroneously stated â€