Chavez v. WCAB

Filed 3/23/07 Chavez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers Compensation Appeals Board. Frank M. Brass, James C. Cuneo, and Janice Jamison Murray, Commissioners. J.A. Eckl, Workers Compensation Administrative Law Judge.

Barbara A. Sena, for Petitioner.

No appearance by Respondent Workers Compensation Appeals Board.

Law Office of Jane Woodcock and Jane Woodcock, for Respondents Modern Developmental Company and Premier Compensation.

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Emiliano Avila Chavez petitions for writ of review contending the decision of the Workers Compensation Appeals Board (WCAB) barring benefits under the post termination/layoff defense (Lab. Code^[1] 3600, subd. (a)(10)) was not based on substantial evidence. Chavez also contends in order for the defense to preclude workers compensation benefits, there must be an affirmative showing of prejudice under section 5403. We disagree and will deny the petition.

BACKGROUND

Chavez worked as a ranch foreman for Modern Development Company, doing business as Bianchi Vineyards (Bianchi) until he was laid off the afternoon of October 11, 2002. Chavez claimed he injured his back and legs that morning when he slipped and fell while repairing a tractor disc. Another foreman, Miguel Flores, recounted Chavez told him he injured himself when he fell into a ditch.

Chavezs primary language is Spanish, but he understands some English and communicated with Bianchi management in English. Sometime before 2:00 p.m. on the day of Chavezs alleged injury, officer manager Becky Smart called Chavez and told him in English not to pick up the employee paychecks from her as usual because her husband and Vice President of Operations at Bianchi, Alfred Smart, would be delivering them to the vineyard. According to Chavez, he told Becky in English he fell and needed to see a doctor, but he was uncertain she understood him.

At about 2:00 p.m., Alfred advised Chavez and Flores they had been laid off. Alfred gave Chavez his final paycheck and drove him, Flores, and another worker to Floress home. Chavez did not tell Alfred he suffered an injury. Later that afternoon, Chavez went to see the companys workers compensation physician.

Alfred testified Chavez reported the injury to Bianchi the following week. On October 18, 2002, Chavez completed a claim form identifying an injury occurring around 11:00 a.m. on October 11, 2002. Bianchi acknowledged on the claim form it first learned of the injury on October 24, 2002.

Bianchi denied the workers compensation claim under section 3600, subdivision (a)(10) which bars compensation for a claim filed after the employee receives notice of termination or layoff. The workers compensation administrative law judge (WCJ) agreed and determined Chavez filed his claim after his termination and failed to prove he notified Bianchi of his injury before receiving notice of the layoff. The WCAB denied reconsideration and adopted the report and recommendation of the WCJ.

DISCUSSION

Chavez argues he notified Bianchi of his injury before receiving notice of the layoff and the WCABs finding to the contrary lacks substantial evidence. In order for the post termination/layoff defense to not bar Chavezs claim, he needed to convince the trier of fact by a preponderance of the evidence he provided notice of injury in advance of being notified of the layoff. ( 3202.5, 3600, subd. (a)(10)(A).) Preponderance of the evidence means that evidence that, when weighed with that opposed to it, has more convincing force and the greater probability of truth. ( 3202.5.) We defer to the WCABs findings of fact if supported by substantial evidence. (Dept. of Rehabilitation v. Workers Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1290.) We therefore must determine whether the evidence, when viewed in light of the entire record, supports the award of the WCAB. This court may not reweigh the evidence or decide disputed questions of fact. (Western Growers Ins. Co.v. Workers Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 233.)

Chavez also argues even if substantial evidence supports a finding he did not notify Bianchi of his injury before being notified of the layoff, section 5403 mandates the employer show prejudice in order for section 3600, subdivision (a)(10) to bar his claim. This is a question of statutory interpretation and we apply de novo review. (Dept. of Rehabilitation v. Workers Comp. Appeals Bd., supra, 30 Cal.4th at p. 1290.)

A. Evidence of Notice of Injury Prior to Layoff

Chavez contends the post-termination/layoff defense does not bar his claim because he notified Bianchi of his injury before learning of the layoff later that day.

Section 3600, subdivision (a)(10)(A) provides, in pertinent part:

where the claim for compensation is filed after notice of termination or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that [] (A) The employer has notice of the injury, as provided under Chapter 2 (commencing with Section 5400), prior to the notice of termination or layoff.^[2]

The objective of this rule is to prevent employees from filing retaliatory injury claims after being terminated or laid off. (See Superior Industries, Inc. v. Workers Comp. Appeals Bd. (2004) 69 Cal.Comp.Cases 649, 652 [writ denied]; Marquez Auto Body v. Workers Comp. Appeals Bd. (1996) 61 Cal.Comp.Cases 408, 409 [writ denied].)^[3]

The notice exception of section 3600, subdivision (a)(10)(A) expressly requires it be read in conjunction with the general notice of injury provisions. Section 5400 provides, in pertinent part:

Except as otherwise provided by sections 5402 and 5403, no claim to recover compensation under this division shall be maintained unless within thirty days after the occurrence of the injury which is claimed to have caused the disability or death, there is served upon the employer notice in writing, signed by the person injured or someone in his behalf.

Chavez served Bianchi a claim form within 30 days of the injury as required by section 5400, but the October 18, 2002, claim form dates one week after his layoff. Thus, the claim form itself does not evince pre-termination notice of injury under section 3600, subdivision (a)(10)(A).

Section 5402, subdivision (a) alternatively allows verbal notification of injury to the appropriate employer representative to be treated as equivalent to written service.

That provision provides:

Knowledge of an injury, obtained from any source, on the part of an employer, his or her managing agent, superintendent, foreman, or other person in authority, or knowledge of the assertion of a claim of injury sufficient to afford opportunity to the employer to make an investigation into the facts, is equivalent to service under Section 5400.

Chavez tried to convince the WCJ that Bianchi had knowledge of his injury through his conversations with Flores and Becky. Specifically, Chavez stresses his conversation with Flores constituted constructive notice. The WCJ, however, found Chavez and Floress testimony inconsistent and incredible:

Miguel Flores testified that he spoke to applicant when they met at Ranch 3. Applicant said that he fell in a ditch. [Citation.] Applicant testified that he was repairing a disc. He put a jack under it and he was removing parts. The jack slipped causing him to fall to his left side. [Citation.] Obviously, their accounts vary to a significant degree.

Finally, all three men were driven to the home of Miguel Flores by Al Smart. It seems inherently implausible that [Chavez] would not mention that he needed to see a doctor at some point while they discussed the lay-off or during the ride.

Chavez agreed he did not tell Alfred he was injured when they were together on October 11, 2002. Becky testified she knew Chavez for about 15 years prior to the injury, they always communicated in English, and Chavez did not report an injury and did not call her on October 11, 2002. She added that she would have provided Chavez a claim form and transportation to a doctor if he reported an injury and requested to see a physician. Alfred testified Chavez reported his injury the week following October 11, 2002, consistent with the dates on the October 18, 2002, claim form.

Based on these discrepancies, the trier of fact could reasonably conclude Chavez did not establish by a preponderance of the evidence he gave Bianchi notice of his injury before receiving notice of the layoff.

B. Prejudice by Failed or Defective Notice

Relying on section 5403, Chavez contends even if there was not sufficient evidence of injury notification pre-layoff, his claim is not barred by the post-termination/layoff defense unless the employer makes an affirmative showing it was prejudiced by Chavezs failure to provide notice before the layoff.^[4] Chavez adds any prejudice is mitigated by the fact he was treated by the employers occupational physician within hours of the injury and provided a claim form to Bianchi shortly thereafter.

Section 5403 provides:

The failure to give notice under section 5400 or any defect or inaccuracy in a notice is not a bar to recovery under this division if it is found as a fact in the proceedings for the collection of the claim that the employer was not in fact misled or prejudiced by such failure.^[5]

In order to ascertain the Legislatures intent and effectuate the purpose of the law, we look to the statutes specific language and where possible, give words of the statute their usual and ordinary meaning. (Smith v. Workers Comp. Appeals Bd., supra, 79 Cal.App.4th at p. 537.) Based on the plain reading of section 5403, the issue of employer prejudice is triggered only when the employee either: (1) failed to give notice of the injury within thirty days under section 5400, or (2) gave defective or inaccurate notice. Neither applies here.

The failure to give notice of an injury under section 5400 is not the same as a failure to notify Bianchi of the injury before receiving notice of the layoff under section 3600, subdivision (a)(10)(A). In the present case, Chavez did not fail to give notice under section 5400 because he provided Bianchi a written claim form within 30 days of the injury.

Neither party asserts a defect or inaccuracy in the notice within the meaning of section 5400. Chavez does not contend the claim form, prepared through his attorney, was defective or inaccurate or that his conversations with Flores or Becky were defective or inaccurate. Nor does Bianchi challenge the quality of Chavezs notice under section 5400; it instead contends the first notice of injury from Chavez was after October 11, 2002.

In enacting section 3600, subdivision (a)(10), the Legislature limited the clear exceptions to the post-termination/layoff defense to the four exceptions enumerated in section 3600, subdivision (a)(10)(A) through (D). The Legislature did not include a requirement that the employer make an affirmative showing of prejudice for the defense to apply. Sections 5403 and 3600 do not make any reference to each other, despite referring to several other statutory provisions.

Chavez has not cited any decisions wherein an affirmative showing of prejudice was requisite for an employee to invoke the post-termination/layoff defense. We therefore conclude section 5403 does not apply to injury claims filed subsequent to an employees notice of termination or layoff.

DISPOSITION

The petition for writ of review, filed January 24, 2007, is denied. This opinion is final forthwith as to this court.

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^*Before Vartabedian, Acting P.J., Gomes, J., and Dawson, J.

^[1] Further statutory references are to the Labor Code.

^[2] There are three additional statutory exceptions to the post-termination/ layoff defense, none of which are applicable here. Section 3600, subdivisions (a)(10)(B) through (C) provide that compensation is not barred if the employee demonstrates by a preponderance of the evidence:

(B) The employees medical records, existing prior to the notice of termination of layoff, contain evidence of the injury. [] (C) The date of injury, as specified in Section 5411, is subsequent to the date of the notice of termination or layoff, but prior to the effective date of the termination or layoff. [] (D) The date of injury, as specified in Section 5412, is subsequent to the date of the notice of termination or layoff.

^[3] Although decisions of the Courts of Appeal not published in the official reports may not be cited or relied upon in any court, denials of petitions for writ of review reported in the California Compensation Cases may be properly cited to the extent that they point out the contemporaneous interpretation and application of the workers compensation laws by the Board. (Cal. Rules of Court, rule 8.1115; Signature Fruit Co. v. Workers Comp. Appeals Bd. (2006) 142 Cal.App.4th 790, 803; Smith v. Workers Comp. Appeals Bd. (2000) 79 Cal.App.4th530, 537.)

^[4] Chavez raised this argument in his petition for reconsideration, but it was not addressed by the WCAB or in the WCJs report and recommendation.

^[5] The employer carries the burden of proving prejudice by an employees failure to provide notice in compliance with section 5400. ( 5805, subd. (e).)