Garcia v. The Vons Company, Inc., 031401 CAWC, AHM 0057674

Case DateMarch 14, 2001
CourtCalifornia
JULIE GARCIA, Applicant,
v.
THE VONS COMPANY, INC., Permissibly Self-Insured, Defendant(s).
No. AHM 0057674
California Workers Compensation Decisions
Workers Compensation Appeals Board State of California
March 14, 2001
          OPINION AND NOTICE OF INTENTION TO AWARD SANCTIONS (EN BANC)           MERLE C. RABINE, CHAIRMAN           The Board, on its own motion, removed this matter to itself under Labor Code section 5310. Removal was ordered so the Board could consider whether the filing of an untimely petition for reconsideration by Valley Subrogation and Associates (Valley Subrogation) on behalf of lien claimant, La Mirada Chiropractic Group (La Mirada), was sanctionable conduct resulting from "bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay," within the meaning of Labor Code section 5813 and Board Rule 10561 (Cal. Code of Regs., tit. 8, §10561).          Because of the important and novel legal issue presented, and in order to secure uniformity of decision in the future, the Chairman of the Board, upon a majority vote of its members, has reassigned this case to the Board as a whole for an en banc decision. (Lab. Code, §115.) Based on our review of the relevant law, we conclude: (1) that a petition for reconsideration is a "pleading, petition or legal document" within the meaning of Board Rule 10561; (2) that the filing of a petition for reconsideration is a sanctionable "bad faith action or tactic" if the filing is done for "an improper motive' or is indisputably without merit" with no "reasonable justification," including (but not limited to) a clear failure to meet the jurisdictional statutory deadlines for filing a petition for reconsideration; (3) that, on the present record, it appears that Valley Subrogation's act of filing a petition for reconsideration some six months after the October 6, 1999 Findings and Order of the workers' compensation administrative law judge (WCJ) was "indisputably without merit" and was without "reasonable justification;" and (4) that, therefore, the Board will issue a notice of intention to award sanctions of $300.00 against Valley Subrogation, together with reasonable attorney's fees and costs payable to defendant for responding to Valley Subrogation's petition for reconsideration.          I. BACKGROUND          The essential history is as follows.          On February 5, 1997, applicant, Julie Garcia, filed an application for adjudication of claim alleging that she had sustained an industrial injury while employed as a cashier/retail clerk by defendant, The Vons Company, Inc..          On September 14, 1998, La Mirada filed a lien claim for $4,982.06, representing the unpaid balance of charges for chiropractic and other services it rendered to applicant.          On November 18, 1998, the Board issued notice for a January 7, 1999 mandatory ^ settlement conference (MSC). La Mirada was served with this notice of hearing.          La Mirada did not appear at the January 7, 1999 MSC. The minutes of the MSC, however, reflect that La Mirada's lien was placed in issue for trial. The trial was set for March 23, 1999.          On or about March 10, 1999, Valley Subrogation served the Board with notice that it was now representing La Mirada. The letterhead of Valley Subrogation's notice of representation showed its address to be "P. O. Box 18531, Encino, CA 91416."          On March 23, 1999, the matter came on for trial on all pending issues, including La Mirada's lien. Kurt Flanagan, a hearing representative employed by Valley Subrogation, appeared on behalf of La Mirada. At the trial, applicant and defendant entered into (and the WCJ . approved) stipulations which, among other things, provided that defendant would pay, adjust, or . litigate various liens, including La Mirada's. The matter was then continued for a lien trial on May 18, 1999.          On May 18, 1999, defendant and Valley Subrogation (by Kurt Flanagan) appeared for the lien trial. At that time, the lien trial was continued to June 21, 1999. Therefore, Valley Subrogation was then placed on notice of the new trial date.          On May 20, 1999, the Board served notice of the June 21, 1999 lien trial on La Mirada.          On May 21, 1999, defendant served notice of the June 21, 1999 lien trial on La Mirada and also on Valley Subrogation at "P.O. Box 18531, Encino, CA 91416."          Neither La Mirada nor Valley Subrogation, however, appeared at the June 21, 1999 lien trial. Therefore, the WCJ issued a notice stating that La Mirada's lien would be disallowed unless it filed a written objection within 15 days showing good cause to the contrary.          On July 9, 1999, Valley Subrogation filed a letter objecting to the June 21, 1999 notice of L intention to disallow La Mirada's lien. Valley Subrogation's letterhead now showed its address to be "P. O. Box 18526, Encino, CA 91436."          On July 16, 1999, the WCJ issued an order rescinding the June 21, 1999 notice of intention. The July 16, 1999 order...

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