Appellate court orders WCAB to provide summary of evidence.

Tuesday, October 23, 2007 | 0

--By Richard "Jake" Jacobsmeyer

The court of appeals has considered the consequence of the WCAB’s issuing a decision after reconsideration without a summary of evidence from the trial judge and ruled that the summary of evidence is a required document and must be completed before the decision on reconsideration can be properly reviewed.  A summary of evidence is required pursuant to Labor Code Section 5313 and ADR 10566.  In this case an arbitrator was used and the same rules apply according to Labor Code Section 5272.
 
This case involves an undercover witness who provided assistance to several law enforcement agencies in Contra Costa County.  It was unrebutted that on several occasions the applicant had made drug buys for some officers pursuant to an investigation. Labor Code Section 3366 provides that one who assists a police officer at the officer’s request is deemed an employee of the law enforcement agency and entitled to worker’s compensation benefits.  There was a factually dispute, resolved against the applicant, regarding the circumstances leading to his being shot in the throat.  The applicant claimed he was shot for assisting another officer in a drug related matter.  The potential employer deemed the applicant to be a volunteer witness who simply came forward with information on the basis that the applicant had approached an officer and offered to assist rather than being contacted by the police officer.
 
The parties proceeded to hearing using an independent arbitrator.  However that arbitrator failed to provide a summary of evidence (the record does not reflect who the hearing officer was or why there was no summary provided).  The WCAB on reconsideration upheld the denial of compensability for the arbitrator and deemed the summary of evidence unnecessary to decide the case.  
 
The court of appeals disagreed with the WCAB’s determination that the Summary was not necessary, holding that the Summary is required to complete the record and that without the information, the decision must be reversed and remanded back to the WCAB for creation of a summary of evidence (which includes the Summary of Testimony) by the arbitrator and the WCAB is to then review the record again and issue its decision.  In doing so the Court rejected the proposal by applicant that the failure to provide the summary of evidence should be deemed fatal to the defendant’s case and the appellate court be required to assume the facts as set out in the petitioner’s brief to be true.  The court held that this standard applies in consideration of pleadings, but not evidence.  The appellate court also rejected several suggestions by defendants that the record was adequately addressed by other information provided by the arbitrator and the WCAB’s review on reconsideration.
 
While not making a determination that the WCAB should reverse the arbitrator’s decision the appellate court did make some comments on the WCAB’s reasoning in its decision and criticized some of the analysis.  Specifically the appellate court noted the arbitrator and the WCAB seemed to be fixated on the applicant’s motivation in offering to assist the police officer in the even that got him injured. The court noted that there is no requirement in the statute for the applicant’s motivation to be considered in the factual pattern.  The issue was whether the applicant actually assisted the officer, not why he might have done so.  The appeals court also rejected the idea that the police officer must initiate the contact for compensability to attach.  The court deemed that the acceptance of an offer of assistance compelled compensability also.
 
This case has very limited application other than the principle that the statement of evidence is a required document.  In the vast majority of hearings, the WCJ provides such a summary and there is no issue.  However where a summary is not prepared, for it is fairly common for the WCAB. on reconsideration to grant the appeal and order a summary to be prepared by the trial judge.  The board may not have felt that it had similar authority over an arbitrator.  Clearly in the mind of the court of appeals the WCAB not only has the authority to require the summary of evidence, but the obligation as well.
 
Richard "Jake" Jacobsmeyer is a partner in the law firm of Shaw, Jacobsmeyer, Crain, Claffey & Nix in Oakland.