MANUEL MANZANO, Applicant,
vs.
FLAVURENCE CORPORATION; FREMONT COMPENSATION INSURANCE, Defendants.
SAROJINI SINGH, Applicant,
vs.
AMERICAN SHOWER DOOR; REPUBLIC INDEMNITY COMPANY, Defendants.
Nos. LAO 778749, AHM 075204
California Workers Compensation Decisions
Workers’ Compensation Appeals Board State of California
July 7, 2002
OPINION AND DECISION
AFTER
RECONSIDERATION
These
two cases are combined into a single Decision After
Reconsideration because each case raises the same issue of
law, namely, whether the workers' compensation
administrative law judge (WCJ) correctly dismissed the
California Insurance Guarantee Association (CIGA) as a party
defendant before a determination of underlying issues related
to CIGA's liability. We will rescind the orders
dismissing CIGA in both cases and return the matters to the
trial level for further proceedings and decision.
We hold
that generally CIGA should not be dismissed from a case until
a determination is made on the issue of the date of injury,
or period of injurious exposure, or other underlying issue
which if adversely decided against CIGA would result in its
liability.
On
February 19, 2002 and on February 22, 2002, we granted
reconsideration in AHM 075204 and LAO 778749, respectively,
in order to allow sufficient opportunity to further study the
factual and legal issues in each case. Having completed our
deliberations, we issue our decision after reconsideration in
both cases jointly.
In AHM
075204 (SFNGH), defendant Republic Indemnity Company
(Republic) challenges the WCJ's Order Dismissing Party
Defendant served December 3, 2001, in which the WCJ ordered
CIGA/Kemper Insurance Company dismissed as a party defendant.
Republic contends that the dismissal was in error because the
WCJ failed to receive its objection to the Notice of
Intention to dismiss CIGA and further that before any party
may be dismissed, the date of injury must first be
determined. Republic asserts that CIGA is a necessary party
in this matter until there has been a determination as to the
actual date of injury.
In LAO
778749 (MANZANO), defendant Fremont Compensation Insurance
Company (Fremont) challenges the correctness of the December
3, 2001 Order of Dismissal of CIGA, wherein the WCJ ordered
CIGA for Superior National Insurance Company (Superior), in
liquidation, dismissed. Fremont contends that after it was
joined as party defendant, it was denied due process by
dismissal of CIGA because it did not have an opportunity to
investigate potential liability within ninety days as
provided by Labor Code section 5402(b). Fremont further
argues that CIGA had not proven special employment under the
provisions of Insurance Code section 11663 and that the
doctrine of laches applied because CIGA waited over one year
to file a petition for joinder of Fremont after CIGA assumed
the claims of Superior, in liquidation.
I.
BACKGROUND
1.
WCAB Case No. AHM 075204 (SINGH).
By
initial Application for Adjudication dated July 1, 1999,
identified as WCAB Case No. AHM 075204, applicant Sarojini
Singh alleged cumulative injury during the period from June
1998 through February 7, 1999 bilaterally to his hands, arms,
shoulders, wrists, bilaterally to his lower extremities and
back, while employed by American Shower Door, whose insurance
carrier was unknown. An amended claim was filed by applicant
on December 26, 2000, identifying an earlier commencement
date for cumulative injury from February 7, 1998 to February
7, 1999, with the same body parts shown as injured while
employed by American Shower Door, and named California
Compensation Insurance Company as the insurance carrier.
According
to the Workers' Compensation Insurance Rating Bureau
print-out, Republic was on the risk from March 1, 1997
through March 1, 1998, with California Compensation Insurance
Company on the risk from March 1, 1998 through March 1, 1999.
California Compensation Insurance Company became insolvent in
September 2000, with CIGA assuming administration of claims,
adjusted by Kemper Employers Insurance Company, for the
insolvent carrier.
On
October 17, 2001, the WCJ issued an Order joining Republic as
party defendant in response to CIGA's petition for
joinder filed on September 27, 2001.
Prior
to the framing of issues or any trial in this matter, CIGA
filed on October 22, 2001 a petition...
