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...