ALONSO NAVARRO, Applicant,
v.
A&A FARMING; and WESTERN GROWERS INSURANCE CO. Defendants.
Nos. GOL 0087934, GOL 0087935, GOL 0087936
California Workers Compensation Decisions
Workers Compensation Appeals Board State of California
March 28, 2002
OPINION AND ORDER DISMISSING PETITION FOR
RECONSIDERATION (EN BANC)
MERLE
C. RABINE, Chairman.
Applicant,
Alonso Navarro, seeks reconsideration of the Opinion and
Decision After Reconsideration (En Banc) issued by the Board
on February 13, 2002. In that decision, the Board concluded
that applicant's Labor Code section 132a petition, which
had alleged that his employer had unlawfully discriminated
against him when it terminated its contributions to its group
health benefits plan after he had been off work for over
three months due to his industrial injuries, was preempted by
the Employee Retirement Income Security Act of 1974, 29
U.S.C. § 1144(a) ("ERISA"). Therefore, the
Board ordered that applicant take nothing by reason of his
Labor Code section 132a claim. In his petition for
reconsideration, applicant contends in substance: (1) that
ERISA does not preempt state workers' compensation laws;
and (2) that the Board failed to liberally construe Labor
Code section 132a, as required by Labor Code section
3202.[1]
For the
reasons that follow, we will dismiss applicant's petition
for reconsideration as an impermissible successive petition
to the Board. Even if applicant had been newly aggrieved by
our February 13, 2002 decision, however, we would have denied
the petition on the merits.
I.
BACKGROUND
The
general facts underlying this case are detailed in our
February 13, 2002 decision. With respect to our current
decision, however, the salient facts are as follows.
On
September 21, 2000, applicant filed a "Petition for
Benefits-Discrimination [Labor Code Sec. 132a]."
Applicant alleged that his employer, A&A Farming
("A&A"), unlawfully discriminated against an
industrially-injured worker, in violation of section 132a,
when it failed to continue making contributions on his behalf
to its ERISA group health plan while he was temporarily
disabled.
On
October 13, 2000, A&A filed an answer to the section 132a
petition raising, among other things, the defense of ERISA
preemption.
On
March 13, 2001, applicant filed a declaration of readiness to
proceed to trial on his section 132a petition.
On
March 21, 2001, A&A filed a letter with the Board, again
raising the issue of ERISA preemption. A&A's letter
appended a copy of the federal district court's decision
in Scotti v. Los Robles Regional Center (C.D.Cal.
2000) 117 F.Supp.2d 9S2, which held that ERISA preempted an
injured employee's section 132a claim based on her
employer's termination of her group medical benefits
after a six-month leave of absence due to industrial
disability.
On
March 27, 2001, the Board issued notice that applicant's
section 132a claim was being set for a mandatory settlement
conference ("MSC").
On May
1, 2001, the MSC took place. At the MSC, A&A specifically
raised the issue of: "Is the application of Labor Code
§132a preempted by ERISA from enforcement against
A&A Farming."
On June
19, 2001, applicant's section 132a claim was tried before
a workers' compensation administrative law judge (WCJ).
At trial, testimony and documentary evidence was presented on
the issue of whether A&A's group health benefits plan
was an ERISA plan. Following trial, the WCJ gave the parties
time to submit points and authorities.
On July
18, 2001, A&A filed a post-hearing brief addressing the
issue of whether applicant's section 132a claim was
preempted by ERISA.
On July
30, 2001, applicant filed an answer to A&A's
post-trial brief, arguing that A&A's ERISA preemption
defense was invalid.
On
August 27, 2001, the WCJ issued a Findings of Fact. The WCJ
determined that "[applicant's Petition for Benefits
pursuant to Labor Code Section 132(a) [sic] is denied."
In the Opinion on Decision accompanying the Findings of Fact,
the WCJ stated there was no "discrimination,"
within the meaning of section 132a, because the ERISA
plan's provision that employer contributions would be
discontinued after a disabled employee had been off work for
90 days applied whether or not the disability was
work-related. Therefore, the WCJ's Opinion on Decision
did not address the issue of ERISA preemption.
On
September 14, 2001, applicant filed a petition for
reconsideration. In his petition, applicant argued that
A&A discriminated against him, in violation of section
132a, by terminating his group health benefits while he was
temporarily totally disabled. Applicant's petition also
specifically contended that ERISA did not preempt his section
132a claim.
On
September 27, 2001, A&A filed an answer to
applicant's petition for reconsideration. In its answer,
A&A again argued the ERISA preemption issue.
On
November 13, 2001, a Board panel granted reconsideration in
order to allow it a sufficient opportunity...
