California: Traps to Avoid When Filing a Petition for Reconsideration

How to avoid the shock of a notice of intent to sanction.

A party usually files a Petition for Reconsideration with the hope that their argument will be accepted and that the trial level determination will be reversed by the Workers’ Compensation Appeals Board (WCAB). It is always a bit of a shock when a Petitioner finds a Notice of Intent to Sanction in their mail instead. Set forth below are some helpful hints to avoid that unwelcome surprise when filing Petitions for Reconsideration with the WCAB.

The case of Prisk v. Los Angeles Unified School District, 2014 Cal. Wrk. Comp. P.D. LEXIS 133 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 133 (Lexis Advance), is a cornucopia of examples illustrating what a party should NOT do in a Petition for Reconsideration.

Mr. Prisk was exposed to toxic asbestos fibers while teaching auto shop classes at a Los Angeles high school. Asbestos is a known carcinogen. Exposure to this substance has been known to cause deadly diseases. Upon learning of his exposure, Mr. Prisk became extraordinarily upset. His stress was elevated exponentially when school officials hindered, rather than cooperated with, his investigation as to the exact extent and nature of his toxic exposure.

Three evaluating physicians, including the panel QME, Dr. Turek, stated that the stress from both the exposure and the lack of cooperation of school officials caused Mr. Prisk to contract a work-related psychiatric illness. Nevertheless, Mr. Prisk’s claim for workers’ compensation benefits was denied by his employer.

The issue of whether his psych injury “arose out of and occurred in the course of” (AOE/COE) employment went to trial and the Judge issued a Findings and Award in favor of applicant. Defendant filed a Petition for Reconsideration from this determination, which both the Judge and the WCAB found to be less than compliant with WCAB regulations for a variety of reasons.

I. Provide an Accurate Timeline of Facts

The most important rule to follow when drafting a pleading for the WCAB, and in particular a Petition for Reconsideration, is to state all facts accurately. To do otherwise would be in violation of 8 CCR § 10842(a) which provides:

“Every petition for reconsideration, removal, or disqualification shall fairly state all of the material evidence relative to the point or points at issue. Each contention contained in a petition for reconsideration, removal, or disqualification shall be separately stated and clearly set forth. A failure to fairly state all of the material evidence may be a basis for denying the petition.”

In addition, parties should be mindful of 8 CCR §10561(b)(5)(A) which PROHIBITS the following:

“Executing a declaration or verification to any petition, pleading, or other document filed with the Workers' Compensation Appeals Board that

(i).contains false or substantially false statements of fact;

(ii) contains statements of fact that are substantially misleading;

(iii) contains substantial misrepresentations of fact;

(iv) contains statements of fact that are made without any reasonable basis or with reckless indifference as to their truth or falsity;

(v) contains statements of fact that are literally true, but are intentionally presented in a manner reasonably calculated to deceive and/or;

(vi) conceals or substantially conceals material facts.” (Emphasis added.)

II. Characterization of the Record Must Be Accurate

In the Prisk case, the Judge relied on the Qualified Medical Examiner (QME), Dr. Turek, for her conclusions. In its Petition for Reconsideration, defendant claimed Dr. Turek’s reports and testimony did not constitute substantial evidence upon which the Judge could rely as the basis for her opinion. Such a claim, if true, could be fatal to the original Findings and Award.

Defendant attempted to provide an example of Dr. Turek’s allegedly “absurd” conclusions by summarizing his deposition testimony as follows:

"Dr. Turek speculated that every teacher who taught at LAUSD, in the mid 1970s… because of the fact that they may have been exposed to asbestos … would likely have a psychiatric claim due to their fear of contracting asbestosis."

The Judge explained in her Report and Recommendation that this was not even close to an accurate summary of the doctor’s deposition testimony, and provided the relevant excerpt in support of her position:

"Defense Counsel: You're aware of the fact that virtually every classroom in L.A.U.S.D. had asbestos until the eradication of that in the mid 1970's?

Applicant's Counsel: Objection. Assumes facts not in evidence.

Defense Counsel: That's a hypothetical. I'm asking. Are you aware of that fact?

Dr. Turek: I know that –

Defense Counsel: Simple 'yes' or 'no,' Doctor.

Dr. Turek: Vaguely. I heard something like.

Defense Counsel: Every teacher who ever taught at L.A.U.S.D. has a psychiatric disability because of the fact they may have been exposed to asbestos; correct?

Dr. Turek: Well, not exactly. First of all, there may actually be a higher incidents of asbestosis in those teachers.

Defense Counsel: That's not the question, Doctor. Would they all have a psychiatric disability because of the fact they were exposed to asbestos and thus may develop asbestosis?

Applicant's Counsel: Objection. Argumentative; assumes facts not in evidence.

Dr. Turek: With him it wasn't just that. It was the way he was treated afterwards."

In addition, the defendant also made other misstatements of the record, such as claiming that the applicant was a "Teacher's Aide/Substitute Teacher,” when, in fact, Mr. Prisk held a position as a full time high school teacher.

III. Petitioner Must Make Specific References to the Evidence

In a Petition for Reconsideration, it is imperative to provide a citation to the record in support of all substantive arguments. Judges and Commissioners are required to analyze each party’s argument and explain why they either agree or disagree. If there is no reference to the record, they are not able to read the evidence petitioner relied on and provide an opinion as to whether or not a party’s argument has merit.

In the Prisk case, the defendant argued that the medical evidence provided by the QME lacked substantial evidence. However, the only reference to the record in support of this argument is the inaccurate summary of the doctor’s deposition as quoted above.

Instead of inaccurately summarizing the doctor’s deposition, counsel should have identified this exhibit by number or letter, along with its date. In addition, he should have designated the page and line where the information he was relying on could be found in compliance with 8 CCR §10842(b)(3) which provides as follows:

References to any deposition transcript shall specify: (A) the exhibit number or letter of the document; (B) the date and time of the hearing at which the deposition transcript was admitted or offered into evidence; (C) the name of the person deposed; (D) the date and time of the deposition; and (E) the relevant page number(s) and line(s) (e.g., "the 6/20/08 depo of William A. Smith, M.D., at 21:20-22:5 [Applicant's Exh. 3, admitted at 12/1/08 trial, 8:30am session]").

(See also Cal. Rules of Court, rule 8.204(a)(1)(C).)

Other than a general reference to the deposition summary, no other reference to the record appears to have been given by defendant to support their argument that the QME’s testimony lacked substantial evidence.  Defendant’s failure to comply with this mandate would have been sufficient on its own for the WCAB to have denied defendant’s Petition for Reconsideration. However, there were several other problems with which the WCAB took issue.

IV. Mud-slinging in Place of Argument Is Not Effective

In the Prisk case, defendant raised several irrelevant issues solely intended to malign applicant’s credibility. This is a tenuous strategy at best. Parties often think that by casting aspersions on the other party, they are harming that person’s veracity. However, once it is learned that there is no support for these accusations, the party casting them is the one whose truth is then questioned.

One of the irrelevant issues raised by defendant was a claim that applicant was a “below average teacher.” Defendant also stated that Mr. Prisk’s students were “out of control.” However, no basis for either of these assertions could be found in the evidentiary record.

Defendant also alleged that when he took the deposition of the applicant, he noticed that applicant’s testimony was “clearly inconsistent.” Defendant explained that Mr. Prisk “jumped from one factor, to another factor, in regard to what was the cause of his psychiatric problems.” However, defendant failed to enter the applicant’s depositions into evidence, thereby depriving the WCAB of the opportunity to verify whether or not his characterization of the testimony was accurate.

V. Utilize Respectful Language and a Respectful Tone

The WCAB, in the Prisk case, also disliked the overall disrespectful tone of defendant’s Petition, especially the conclusion that “"all the trial judge does, consistently throughout her opinion in this matter is to issue conclusory statements without any basis in fact." Contrary to this statement, the Judge provided plenty of support for her determinations.

The WCAB strongly admonished defendant against misrepresenting or concealing facts in future petitions and stated that if it did any of the above described prohibited actions again, sanctions would be imposed.

VI. Adhere to Recently Re-Issued WCAB Rules

On October 23, 2013, the WCAB reissued “Rules of Practice and Procedure” (8 CCR §§10250 – 10959) the full text of which can be found at:

http://www.dir.ca.gov/WCAB/WCABPropRegsApr2013.htm

Included in the revised regulations are a plethora of new rules with regard to filing of Petitions, including Petitions for Reconsideration.

8 CCR §10450(e) mandates verifications be added to all petitions:

“All petitions and answers shall be verified under penalty of perjury in the manner required for verified pleadings in courts of record. A failure to comply with the verification requirement constitutes a valid ground  for summarily dismissing or denying the petition or summarily rejecting the answer.”

8 CCR §10498 mandates that pleadings include State Bar number.

VII. Noteworthy Panel Decisions Dealing with Non-Compliant Petitions

Additional guidance can be found in the following list of recent Noteworthy Panel Decisions. In each of the cases listed below, the WCAB has admonished attorneys and has threatened to impose sanctions for failing to properly draft and file WCAB petitions.

> Duarte v. Motion Picture & Television Fund, 2014 Cal. Wrk. Comp. P.D. LEXIS 226 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 226 (Lexis Advance) (Applicant attorney failed to “reference the record in support of evidentiary statements” in violation of 8 CCR §10842(b).)

> Faulkner v. Cat Clinic, 2014 Cal. Wrk. Comp. P.D. LEXIS 228 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 228 (Lexis Advance) (Petitioner failed to attach verification in violation of LC §5902.)

> Gomez v. Courtlandt Koerwitz, 2014 Cal. Wrk. Comp. P.D. LEXIS 231 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 231 (Lexis Advance) (Petitioner may only file a Petition for Reconsideration from a “final” order in compliance with LC §5900(a).)

> Altamirano v. YAFA, 2014 Cal. Wrk. Comp. P.D. LEXIS 113 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 113 (Lexis Advance) (Notice of Intent to impose sanctions upon lien claimant for “asserting inaccurate, false, and/or misleading statements; making evidentiary statements without any specific references to the record; and failing to specify which facts in a verified petition are the signer's own knowledge and which are based on his belief.”)

VIII. Conclusion

As discussed above in these Noteworthy Panel Decisions, there are a variety of ways in which unwary parties may trigger a Notice of Intent to Sanction by the WCAB after filing a Petition for Reconsideration. Hopefully, after a careful review and study of these cases, these issues will arise less often in the future.

In addition, it’s always a good idea to have a third party read over your Petition for Reconsideration before it is filed. You’d be surprised how a fresh pairs of eyes will see issues that need to be addressed, which can often mean the difference between a successful petition and a Notice of Intent to sanction.

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