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California: Guardian Ad Litem After Applicant Reaches Age of Majority

September 28, 2023 (3 min read)

Here's an interesting Board panel decision about a long-standing guardian ad litem who continued to represent the applicant after that party reached the age of majority. The WCAB said that the guardian ad litem could continue to represent the applicant as a non-attorney representative as long as proper notice was given. Below is the LexisNexis headnote for the panel decision in Theus v. Melody Express.


Copyright 2023 by Matthew Bender & Company, Inc.

Ronald Theus, Applicant v. Melody Express, illegally uninsured, Uninsured Employers Benefits Trust Fund, Defendants

W.C.A.B. Nos. ADJ424792 (FRE 0241357)—WCAB Panel: Commissioners Dodd, Capurro, Chair Zalewski

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed September 7, 2023

Publication Status:  CAUTION: This decision has not been designated as a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

Disposition: Reconsideration is granted, the November 3, 2020 Third Findings of Fact, Order, and Opinion on Decision is rescinded, and the matter is returned to the trial level for such further proceedings and decisions by the WCJ as may be required, consistent with this opinion.

WCAB Procedure—Appointment of Guardian Ad Litem—WCAB, granting reconsideration, rescinded 11/3/2020 decision in which WCJ found that Uninsured Employers Benefits Trust Fund (UEBTF) appropriately paid all benefits owed to decedent’s minor child (applicant), and returned matter to trial level for further proceedings regarding appropriate rate at which applicant was to be paid by UEBTF, observing that guardian ad litem, Shaundra Bess, appointed to represent applicant while applicant was minor child, could not continue acting as guardian ad litem in litigation after applicant turned 18 years old on 4/25/2019, as guardian ad litem appointment ceases when minor child reaches age of majority, but because Labor Code § 5700 and 8 Cal. Code Regs. § 10401 permit non-attorney representatives to represent parties in WCAB proceedings, Ms. Bess could continue representing applicant as non-attorney representative, so long as notice of representation is filed pursuant to 8 Cal. Code Regs. § 10401(c); otherwise, applicant should clarify her status going forward as in propria persona. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 31.21[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.09.]