Crown vs. WCAB and the Hard Lesson

Saturday, February 14, 2004 | 0

The recent Fifth Appellate decision, Crown vs. WCAB (F043811 (WCAB No. STK 160122)(2/05/04) is invaluable to counsel - not only was it a difficult lesson for the defense in the case, but the Court provided specific direction to attorneys on counseling their clients on meritorious appeals, and why failure to heed the advise of sage counsel can have increasingly deleterious effect.

Let's take a look at the facts in Crown, and see where the Court's counseling should have been implemented relative to that fact pattern.

Facts

Wong, the injured worker, before his injury was a prized employee. Testimony reflected that he had a good relationship with his employer (Sanchez) but that the rapport between them changed following Wong's industrial accident. The fact stated in the case are not clear, but for some reason, Sanchez doubted the veracity of Wong's injury and resulting disability that required he work light duty and even after returning to his usual and customary duties.

Wong was eventually fired by Sanchez for allegedly using foul language with a customer. Sanchez' testimony at trial was not believed by the trial judge, and he assessed a 132a penalty against Crown.

Credibility Issue

The credibility of Sanchez fell apart for several reasons: a) she told the judge that Wong's personnel file contained 3 customer complaints, but couldn't produce the personnel file; b) the customer who allegedly complained about Wong couldn't recall if the complaint was prior to, or after, Wong's injury; c) witnesses confirmed that Sanchez' attitude towards Wong had become negative after the industrial injury, and that Sanchez thought that Wong was faking his disability because he didn't want to work.

The WCAB accepted Crown's Petition for Reconsideration, but solely to return the matter back to the workers' compensation judge to assess attorneys fees against Crown. This was the first warning that Crown should not have appealed!

Review of Evidence on Appeal

The WCAB, in its Decision and Opinion on Reconsideration, went through a detailed explanation of why a finding of 132a violation must be affirmed, citing specific evidence received by the WCJ. The Court of Appeals reviewed this to remind us that on appeal it is difficult to overturn determinations regarding the evidence presented at trial:

"Although Crown argues the evidence before the UIAB supports its contention it dismissed Wong for legitimate business reasons, it fails to recognize that even that tribunal doubted the veracity of the customer complaints against Wong. Moreover, the WCAB could infer from Smith's testimony that she complained of Wong before his injury in June 2000, yet Crown used the complaint against Wong only after he filed his workers' compensation claim. Based on substantial evidence that Sanchez treated Wong poorly after his industrial injury, that she believed he was faking his disability, and that she wanted to dismiss Wong since he returned to work on light duty, the WCAB acted within its authority in finding that Crown fired Wong in retaliation for filing a workers' compensation claim."

Risk on Appeal

The Court, however, didn't stop at affirming the findings of the WCAB. Instead, the Court saw an opportunity to teach a lesson..a hard lesson, and also made sure to deride the employer's attempt at appellate review as harshly as any court's written opinion:

"Wong requests attorneys' fees associated with responding to Crown's petition for writ of review. Under section 5801, when an injured employee prevails in defending against an employer's WCAB petition for writ review and the appellate court finds 'no reasonable basis for the petition,' the court must remand the matter to the WCAB for a supplemental attorneys' fees award determination. [Footnote.] Attorneys' fees are not, however, automatically awarded simply because an appellate court affirms the WCAB's decision.
"We find Crown's petition for writ of review indisputably without merit and substantially similar to the first category of situations lacking a reasonable basis under Employers Mut. Liab. Ins. Co., supra, 46 Cal.App.3d at pages 108-109. Crown did not present this court with a question of law and only argued that the WCAB's decision was unreasonable and unsupported by substantial evidence in light of the entire record. Testimonial evidence from both Wong and his coworker reveals, however, that Wong's employment relationship significantly changed after he filed his workers' compensation claim. Sanchez became 'hostile' and 'ice cold' toward Wong, excluded him from company meetings, and felt he was no longer an employee. Crown ignores the great weight of evidence in favor of the WCAB's decision and instead asks this court to rely on evidence discounted as unpersuasive by not only the WCAB, but also the UIAB. Even if this court were convinced Crown dismissed Wong for the realities of business, we could not reweigh the evidence to decide a disputed question of fact supported by substantial evidence."

The Hard Lesson

The Court's lesson is three-fold: 1) Do not attempt to get a new interpretation of the evidence from an appellate court - they cannot reweigh, or re-decide the evidence; 2) when bringing a Petition for Writ of Review, ensure that there is a challenge to the law, either interpretive or substantive; 3) be sure the client understands the risks of challenging a WCAB decision on appeal, and that they know a challenge on factual findings is rarely overturned.

As the Court opined in the opening paragraphs of the decision, "Obviously, Crown has an absolute right to seek relief from an appellate court. We publish to remind the parties, however, that it is still important to evaluate the merits of a potential appeal because a meritless petition may, as in this case, draw adverse consequences."

It doesn't get much more adverse than having the reviewing court call your appeal "indisputably without merit."

-------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.