WCAB's Contreras Case Worse than I Thought

Wednesday, August 17, 2011 | 0

I received several comments on the post a couple of days ago regarding the California 2nd District Court of Appeal 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 workers' compensation judge 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 Nov. 9, 2010, the WCAB didn't "see" the file until February 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 June 26, 2001: petition to reopen filed Aug. 24, 2004; denial of petition to reopen by the WCJ was not until Nov. 9, 2010!

You mean to tell me it took six 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  2011, finally issuing its order April 4, 2011..

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 six 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.

David J. DePaolo is founder and chief executive officer of WorkCompCentral. This column was reprinted from his blog, DePaolo's Work Comp World.