Grinberg: WCAB Comments on Email Service and Copy Liens

Wednesday, March 30, 2022 | 0

Here we are again, still slugging our way through our beloved swamp of California’s workers’ compensation system, and I'm here to curate the culture clash between old and new, the past and the future, the traditional and the modern that plays out.

Gregory Grinberg

I bring you the panel decision in the case of Aguilar v. Vanitas Manufacturers Inc. for two reasons. One, it is a defeat for a copy-service lien claimant, which always warms the cold, hard heart of your favorite defense attorney (that’s me, right?). The other? Well, we have more guidance about the effect on deadlines of different forms of service.

In Aguilar, a workers' compensation judge's trial decision was emailed to the lien claimant, which then took the full 25 days to file a petition for reconsideration (20 days plus five for mailing). Defendant and the WCJ both opined that the petition for reconsideration was untimely because the time to act was 20 days plus two days for email service.

To start, let’s talk email versus snail mail. As we all know, mail service can take up to five days, depending on how quickly the Postal Service can process the letter and deliver it. Email, however, is instant (or nearly so).

Under California Code of Civil Procedure Section 1010.6(a)(4)(B), when a document is served by email, the deadline to act is extended by two days. By contrast, California Code of Civil Procedure Section 1013 provides that service by regular mail in the same state increases the time to act by five days. Accordingly, one would think, looking only at the CCP, that the means of service of a document affects the number of days remaining to act.

But one would be mistaken, according to the Aguilar panel.

Citing the en banc Workers' Compensation Appeals Board opinion of Messele v. Pitco Foods Inc. for the proposition that “the WCAB’s rules govern service if they differ from CCP section 1013,” the panel applied that reasoning to CCP 1010.6 and cited 8 CCR 10605, which increases the time to act by five days for service by mail, fax, email or any other method besides personal service. Presumably, carrier pigeon service would work as well.

The interesting thing is that this rule is a little disconnected from reality. Fax and email arrive immediately, much like personal service. Further, a respondent who is out of state gets extra time to act, but while out-of-state addresses take longer to reach by mail, distance is of no relevance to email or facsimile.

So, as reaffirmed by the Aguilar decision, service by email in a matter before the WCAB provides an additional five days to act if the street address on the official record is within California.

But that’s about where it stops going well for the lien claimant. Though the petition for reconsideration was ultimately ruled timely, the WCAB affirmed the trial judge’s analysis. Copy service lien claimants bear the burden of proving that there was a contested claim, that their services were to address the contested claim and that their charges were reasonable. Defendant’s failure to do bill review does not serve as a waiver of any sort.

If this holding sounds familiar, it should, as this was the finding in the ruling issued by the WCAB in Torres v. AJC Sandblasting (2012, en banc).

So, not a bad result and a useful panel opinion to keep in mind.

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.