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Grinberg: File Reconsideration for Alleged Errors

By Gregory Grinberg

Tuesday, July 14, 2020 | 267 | 0 | min read

One of the charms of the legal profession in general, and workers’ compensation in particular, is that if you think you’ve mastered anything, you are probably wrong. At least a little wrong. 

Gregory Grinberg

Gregory Grinberg

The law keeps changing, new trends and theories develop and are accepted and then rejected and replaced. In short, we are all continuously learning and (hopefully) improving.

To that end, I bring to your attention the recent panel case of Jose De Leon v. Santa Ana Rios Farm Labor/Star Insurance Co. Therein the Workers' Compensation Appeals Board, after a petition for reconsideration filed by applicant, issued a finding that applicant’s 2013 injury should be rated to 17% permanent disability and was awarded indemnity in the amount of $17,545.

Now, you might be thinking to yourself that 17% PD is equivalent to $17,545, so what’s the problem? Well, for 2013 injuries, permanent disability benefits capped out at $230 per week for 17% PD, not $290, so a finding of 17% is actually worth only $13,915.

Some 11 days after the WCAB issued its ruling, defendant e-filed a letter to the judge asserting the correct PD valuation. A second letter, addressed to the WCAB, was e-filed about a month after the first.

The WCAB issued an opinion and order correcting error, issuing a new award with the correct PD valuation.  But in so doing, it offered some guidance for us practitioners:

“[T]he award of an incorrect amount of permanent disability indemnity is not a clerical error, which the Appeals Board can correct at any time … Rather, the award of an incorrect amount of permanent disability indemnity is a judicial error for which a timely filed petition for reconsideration is required to confer jurisdiction.” 

In other words, as much as we all hate math, an error of this sort needs to be addressed in the same way as if the party contested the interpretation or application of the law: through a petition for reconsideration.

Also, the WCAB cautioned the parties that a proper petition for reconsideration must be filed, and not just a letter. Although the De Leon WCAB panel decided that due process warranted interpreting the original letter to the judge as a petition for reconsideration, there’s no guarantee that the next time this happens the same result will be reached. If a party is newly aggrieved by a finding of the WCAB, even on reconsideration, a new petition for reconsideration should be filed.

So, dear readers, let us take this guidance and improve our craft.

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.

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