California: Verification Required for IMR Appeal

The W.C.A.B. has issued another “Significant Panel Decision*” addressing another procedural issue under SB 863. In Torres v. Contra Costa Schools Insurance Group, SCIF, the W.C.A.B. has addressed the procedural status of an appeal of an IMR decision to the W.C.A.B. where the applicant attorney has failed to verify the Petition as required by Labor Code § 4610.6(h) and ADR 10450(e).

In this action, counsel for the injured worker filed an appeal of an adverse IMR decision on various grounds. Among the issues raised by defendant in response to the appeal was the failure of applicant attorney to make the appeal under penalty of perjury as required by the above noted authorities. The matter proceeded to trial and the WCJ ultimately dismissed the appeal for lack of verification based on Rule 10450(e), which provides that failure to verify a petition is a basis for summary dismissal:

“(e) 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 a petition or summarily rejecting an answer.”

Applicant appealed, essentially arguing verification of the appeal was an unnecessary step:

“... applicant argues in the petition that “the parties all know that the truth, the facts and the history all dictate that Independent Medical Review and the UR decisions of the defendants were defective,” that it is clear that “the individual who filed the request for review had reviewed the file, the reports and the evidence,” and that justice and equity support consideration of the merits of applicant’s petition.”

The W.C.A.B. noted that even if the above contentions were true, the requirement to verify a petition is plainly set out in both statute and regulations and was not simply a technical requirement:

“…Verification of a pleading under penalty of perjury is more than a pro forma requirement. It helps assure the accuracy of factual statements made in pleadings, and may provide evidentiary support that is necessary to obtain the requested relief. Willfully stating a material fact under penalty of perjury that is known to be false is perjury, and may subject the person making the verification to criminal prosecution, citation for contempt of court, the imposition of sanctions for bad faith conduct and loss of privilege of appearing before the WCAB or practicing law (citations omitted).”

The W.C.A.B., after pointing out all the reasons the applicant’s appeal should have been verified, also pointed out that this requirement is relatively new and that public policy strongly supports the disposition of cases on their merits. Having also pointed out previously in the decision that lack of verification did not mean dismissal was an automatic result and the multiple authorities supported the ability to “cure” such a defect within a reasonable time of discovery, the W.C.A.B. rescinded the order of dismissal and allowed applicant attorney 20 days from the date of the W.C.A.B. decision to cure the defect in his appeal by completing the verification. If the applicant attorney fails to cure the defect within that time frame, the WCJ is to again dismiss the appeal.

COMMENTS AND CONCLUSIONS:

Perhaps the most puzzling aspect of this case is why applicant attorney, having been appraised of the lack of verification, did not simply immediately cure the defect at the time of trial and stubbornly insisted on proceeding with an obviously defective appeal. There is, as pointed out by the W.C.A.B., ample authority that a party may address this issue by promptly correcting the defect upon notice of the issue (which can be done as simply as handwriting in a declaration under penalty of perjury at the bottom of a pleading and signing/dating the notation). For many pleadings, failure to verify with a resulting dismissal can be fixed by refiling with proper verification. However where there is a time frame to observe (such as an appeal of an IMR decision), promptly curing the defect is necessary to save the timeliness of the appeal.

The W.C.A.B. was extraordinarily lenient in giving this applicant attorney another opportunity to do the obvious. However, given the now publication of this decision, the next time someone raises this issue at or before trial, there had better be a response that includes action to cure the defect. Having put the industry on notice, the W.C.A.B. is not likely to allow such “do overs” in the future once the issue gets to the commissioner level.

Practitioners should take note. We are all on notice of the need to pay attention to the verification requirements at the W.C.A.B. and should treat this decision as a red flag for future conduct.

* Significant panel decisions are not binding precedent in workers’ compensation proceedings; however, they are intended to augment the body of binding appellate court and en banc decisions and, therefore, a panel decision is not deemed “significant” unless, among other things: (1) it involves an issue of general interest to the workers’ compensation community, especially a new or recurring issue about which there is little or no published case law; and (2) all Appeals Board members have reviewed the decision and agree that it is significant.

© Copyright 2014 Shaw, Jacobsmeyer, Crain & Claffey PC. All rights reserved. Reprinted with permission.