08/04/2009 12:05:57 PM EST
California EAMS: Notice of Discrepancy
The “Notice of Discrepancy” is a new form that has crept into our legal community with the advent of EAMS. Some people are still not familiar with how it works. So let’s look at a hypothetical chronology of when the form might be generated.
4/1/09 Judge Jim issued his Findings and Award (F&A) in favor of the injured worker, John Smith.
4/27/09 Donna Defense filed her Petition for Reconsideration with the wrong case number listed. This was the last possible day to file a Petition for Reconsideration of Judge Jim’s F&A.
4/29/09 The clerical staff at the district office was not able to match up the document with the correct John Smith case. Therefore, a Notice of Discrepancy was issued.
5/14/09 Donna Defense re-filed the Petition for Recon, with the correct case number, 15 days after the Notice was mailed to her.
Query: Will the WCAB dismiss the Petition as untimely, and state that it lacks jurisdiction to decide the issue on the merits?
There are actually two regulations that address this issue:
Appeals Board Rule - 8 CCR §10397(b) states in part: “A document … may be rejected for filing if it does not contain a combination of information sufficient to establish the case or cases to which the document relates… If a document is rejected in accordance with this subdivision, the Court Administrator shall (issue) a Notice of Document Discrepancy, that the document has not been accepted for filing. The Notice of Document Discrepancy shall specify the nature of the discrepancy(ies) and the date of the attempted filing, and it shall state that the filer shall have 15 days from the service of the Notice within which to correct the discrepancy(ies) and resubmit the document for filing. If the document is corrected and resubmitted for filing within 15 days, or at a later date upon a showing of good cause, it shall be deemed filed as of the original date the document was submitted.” (Emphasis added.)
Court Administrator’s Rule - 8 CCC §10222(a) states in part: “If a document is not filed in compliance with the court administrator's rules, either because it does not comply with the procedural requirements or with the place of filing requirements, the court administrator may in his or her discretion take the following actions:
(1) Correct the defect and file the document; or
(2) Notify the filer that the document is not accepted for filing by service of a Notice of Document Discrepancy. The Notice shall state the discrepancy, the date of the attempted filing, and provide the filer with 15 business days from service to cure the discrepancy. If the document is corrected within 15 business days, or at a later date upon a showing of good cause, it shall be deemed filed on the original date the document was submitted. (Emphasis added)
The interesting distinction between the two regulations is that the Appeals Board Rule §10397 allows for a period of “15 days” to re-file the corrected document versus “15 business days” allowed by the Court Administrator’s Rule §10222. “15 days” generally means 15 consecutive days, including holidays. A “business day,” on the other hand, is defined in CC§9 as every day that’s not a holiday. It generally includes Monday through Friday. (Holidays are defined in CC§7.) So the time limits for the two regulations are a bit different.
Fortunately, there is a catch all phrase in both regulations, which allows the corrected document to be resubmitted after the 15 day period upon a showing of good cause. This language will allow the WCAB to retain jurisdiction and WCAB discretion may be used to determine whether or not the document should be determined timely filed.
Another issue that applies to both regulations is whether CCP§1013(a) applies. CCP§1013(a) states that service is complete at time of deposit in the mail, plus 5 days for mailing. So does that mean that the deadline for re-filing corrected documents is 15 days from the date the Notice of Discrepancy was issued, plus an additional five days for mailing?
Regardless, the best practice is to do what Donna Defense did in this case. Parties should file the corrected document within 15 calendar days from the issuance of the date of the Notice of Discrepancy. This is the earliest possible mandated date given any interpretation of either of the regulations. That way, you can be sure that the document will be considered timely and a determination will be made on the merits.
This blog has been approved by the California Division of Workers' Compensation.
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