Friday, August 12, 2011

WCAB's Contreras Case Worse Than I Thought!

I received several comments on the post a couple of days ago regarding the California 2nd District Court of Appeals taking up a case where the Workers' Compensation Appeals Board (WCAB), in my opinion, wrongfully used procedural issues against an in propria persona injured worker to trump his substantive rights.

Fortunately the WorkCompCentral database has virtually all WCAB opinions from July 1, 2007 to present so I was able to pull the actual opinion on denial of reconsideration from which the appeal to the 2nd District was taken. You can read the actual opinion here.

This case is even more egregious than I thought - frankly shame on the WCAB!!

The original injury occurred in 1999 and resulted in a Stipulated Award in 2001. At that time the injured worker was represented by counsel.

In 2004, well within the statutory time limits for seeking a reopening of the award, the appropriate petition was filed by the injured worker, this time without counsel. The original award was venued out of the Oxnard district office, but for unknown reasons the injured worker filed his petition to reopen in the Los Angeles district office.

Yes, at the time the regulations provided that if one is to reopen then the petition must be filed in the district office having original venue - i.e. for this case the petition should have been filed in Oxnard.

The injured worker did not explain in his petition why he filed in Los Angeles, nor did he subsequently make any attempt to clarify why he did what he did - thus the WCJ and the WCAB found as a result that there was no evidence of mistake or excusable neglect for filing in the wrong venue!

What is even more egregious about this whole process is that the WCAB apparently, by its own admission, engaged in its own negligence - the WCAB admits that even though the injured worker's petition for reconsideration was timely filed within 60 days from the WCJ's denial of his petition for reopening on 11/09/10, the WCAB didn't "see" the file until February of 2011.

So, let's look at the time line here and you tell me if this is not a complete miscarriage of justice: Award issues 6/26/2001; petition to reopen filed 8/24/2004; denial of petition to reopen by the WCJ was not until 11/09/2010!

You mean to tell me it took 6 years for the injured worker to find out that he filed his petition to reopen at the wrong venue!

If the injured worker had been given notice within the statutory time frame for filing to reopen he could have easily refiled at the proper district office! He still had nearly a whole year left in which to act.

Then to add insult to injury, the WCAB somehow loses track of the file, doesn't review the petition to reconsider until February of 2011, finally issuing its order April 4, 2011.

This poor injured worker had to wait almost 7 years to find out that the system screwed him.

Strong language, yes, but that is what happened in this case.

Something is egregiously wrong when a) substantive rights are not adjudicated in an administrative benefit delivery system for 6 years and b) when procedure trumps substance when the administrative agency has all the power in the world to resolve the procedural defect on its own.

Folks - its cases like this that shape my opinion that the whole system needs to be dismantled for a fresh start.


  1. Could filing in the wrong venue be the REASON that the Petition was lost? The sad result probably would not have been as sad if Contreras filed where his award was issued. If I remember the policy language from 2004, they promised to throw away the misfiled documents rather than interoffice them to different locations. That put the filing responsibility on the parties, where it probably should be.

    EAMS made it easier for E-Filers, because the Server automatically files the documents wherever the proper venue is. However, OCR filers still need to get their documents to the proper venue, or risk having them disappear.

    I suspect if Contreras consulted Information and Assistance in LAO or OXN, they would have helped him. If I&A gave him bad advice on filing in LAO, I agree that the RECON Unit should fall on their sword, and make a fine-line distinction. At that point,the WCAB would have been responsible for the error.

    It was not personal; the WCAB does not have the manpower to hand-hold every filer through the process of filing a Petition unless the person asks. The rule was promulgated to reduce time and effort needed to process documents. Sometimes there are unintended consequences, as Contreras discovered.

    LESSON: Ask I&A for assistance if you do not know what you are doing, and do not have an attorney.

  2. If there was at least arguable merit to the petition to reopen, I agree that the WCAB shouldn't have elevated form over substance. However, as a matter of judicial economy, the law is sometimes construed strictly or liberally depending upon the nature of the claim. It is possible that Mr. Contreras' petition to reopen was of very dubious merit on its face and the WCAB decided there was no good reason to cut him some slack if the result would be to prolong the agony for all concerned. To give you an example, I once had a petition to reopen a 1 percent PD award for a 3 cm. laceration of the heel based on the applicant's argument that the he was now totally disabled because the pain of his injury caused him to become a heroin addict.

  3. I appreciate the comments by both of you WCABDEFENSE and Pam.

    We don't know the merits of the petition to reopen. The WCJ's report & recommendation on reconsideration wasn't attached to the opinion denying reconsideration. We don't know what the I&A did or didn't do. We can only rely on what the WCAB said in its denial, and the base of the opinion to me is alarming because it took 6 years for this man's request to reopen to be dealt with, and then denied on a technicality!

    6 years! No one should have to wait that long regardless of the merits. And judicial work load is no excuse - the WCAB is fully funded. Whether the money is released to pay the bills is another issue and one that in my opinion is wrongly tied to the overall budget - starving a state agency just because it looks politically good is not the right thing to do.

    According to Commissioner Caplane's dissent, the petition to reopen was based on an arguably valid medical opinion - so it should have been dealt with on the merits. I have to assume that his case has some merit - he has an attorney who is now incurring significant time and effort in representing him up through the appellate process, which both of you know requires quite a commitment.

    To me, what happened here is inexcusable regardless of the merits of the case.