DANIEL MILBAUER, Applicant,
v.
EREZ BOOSTAN, an individual and dba AMERICAN RUNNER ATTORNEY SERVICE, uninsured; and UNINSURED EMPLOYERS FUND, Defendants.
No. LAO 0722567
California Workers Compensation Decisions
Workers Compensation Appeals Board State Of California
December 18, 2003
OPINION AND DECISION AFTER RECONSIDERATION (EN
BANC)
MERLE
C RABINE, CHAIRMAN.
On June
24, 2003, the Appeals Board granted reconsideration on its
own motion pursuant to Labor Code section 5900(b), with
respect to the Supplemental Findings and Award of May 8,
2003.1 In that decision, the workers'
compensation administrative law judge (WCJ) found that the
applicant, while employed on October 17, 1994, by "Erez
Boostan, an individual and dba American Runner Attorney
Service," uninsured for workers' compensation,
sustained industrial injuries to his back and upper and lower
extremities, causing 66-1/4% permanent disability and a need
for further medical treatment.
The
Uninsured Employers Fund (UEF), through its attorney of
record,2 filed an untimely petition for
reconsideration raising an important jurisdictional issue in
challenging the WCJ's decision. UEF contends that the WCJ
incorrectly identified the employer, asserting that the
employer should have been identified as "American Runner
Attorney Service, Inc., a corporation." UEF argues that
because the correctly named corporation was not properly
served as required by Labor Code section 3716(d) and Yant
v. Snyder & Dickerson (1982) 47 Cal.Comp.Cases 254
(Appeals Board en banc decision), there is no jurisdiction
over the correct employer and no jurisdiction over
UEF.3
Because
of the important legal issue presented, and in order to
secure uniformity of decision in the future, the Chairman of
the Appeals Board, upon a majority vote of the members,
assigned this case to the Appeals Board as a whole for an en
banc decision. (Lab. Code §115.)4
First,
we conclude in this case that UEF's petition for
reconsideration regarding the correct legal identity of the
employer is without merit because the correct legal identity
of the employer as found by the WCJ in her decision served
May 8, 2003, is supported by substantial evidence and because
UEF has offered no contrary evidence (either at trial or on
reconsideration).
Second,
we conclude that following the filing of an Application for
Adjudication of Claim ("application"), and as soon
as an applicant determines that the employer is or may be
uninsured and has made a good faith effort to determine the
correct legal identity of the employer, UEF may be ordered to
appear provisionally at proceedings and ordered to assist in
determining the correct legal identity of the employer
pursuant to section 3716(d)(4). We announce several
procedures intended to obtain the early and active
participation of UEF when either the employee has difficulty
in establishing the correct legal identity of the employer
after good faith efforts, or when UEF objects to the correct
legal identity of the employer as asserted by the employee.
BACKGROUND
Sustaining
an industrial injury can be a terrible experience, but
discovering that the employer is uninsured makes that
situation worse. The employee's problems ought not to be
compounded further when his or her numerous attempts to
determine the correct legal identity of the uninsured
employer are merely challenged by UEF without any efforts by
UEF to determine or assist in determining the correct legal
identity at the earliest opportunity. The reality of this
problem is plainly visible in the instant case by the eight
and one-half years it has been pending on the sole issue of
the legal identity of the employer of applicant, who
sustained a very serious industrial injury on October 17,
1994. It appears no benefits have been paid to date.
In this
case, applicant sustained a serious industrial injury to
various parts of his body on October 17, 1994, as a
messenger/courier. He testified that he was riding a
motorcycle, traveling 65 miles an hour, when a vehicle struck
him. His employer was allegedly uninsured for workers'
compensation.
As
acknowledged by UEF in its petition for reconsideration, from
the commencement of proceedings there has been confusion as
to the correct legal identity of the applicant's employer
at the time of his injury. It appears that UEF has done
little to alleviate that confusion, although UEF has been an
active participant in these proceedings since at least 1996.
In
December of 1994, applicant filed an application in which he
identified his employer as "Erez Boostan, dba American
Runner Attorney Service & Courier Network, Inc." An
amended application named "Erez Boostan as an individual
and substantial shareholder of American Runner Attorney
Service & Courier Network." UEF was also named as a
defendant in the amended application.
On
August 8, 1995, applicant served a Special Notice of Lawsuit
on his alleged employer identified as "Erez Boostan as
an individual and substantial shareholder of American Runner
Attorney Service and Courier." In October of 1995, UEF
was served with this Notice, together with a Declaration of
Readiness (DOR). The DOR stated that the "Board's
assistance is required to obtain jurisdiction over the
uninsured employer and joinder of Uninsured Employers
Fund."
On
October 17, 1996, UEF appeared by counsel at a Mandatory
Settlement Conference (MSC), at which UEF was formally joined
as a party defendant. At that MSC, applicant asserted that
"American Runner Attorney Service and Courier" was
his employer. There is no indication in the record that UEF
then asserted that some other entity was the correct legal
identity of the employer.
On
February 19, 1997, applicant prepared a new DOR, which was
served on UEF, with a caption and a proof of service
indicating that "American Runner Messenger Service,
Inc.," was his employer. Thereafter, MSCs were held on
March 19, 1997, and April 9, 1997, at which UEF appeared, but
these hearings were continued so that "American Runner
Messenger Service, Inc.," could be properly served.
On
April 29, 1997, applicant served the amended application and
a Special Notice of Lawsuit on "American Runner
Messenger Service, Inc., as successor in interest to American
Runner Attorney Service and Courier and Courier Network,
Inc., Erez Boostan as substantial shareholder of American
Runner Messenger Service, Inc."
Sometime
during these proceedings, "American Runner Messenger
Service, Inc.," filed for bankruptcy. Applicant obtained
another attorney to seek relief from the automatic stay in
bankruptcy. An Order issued from the bankruptcy court in
January 1998, giving relief to proceed against "American
Runner Messenger Service, Inc."
On
January 19, 1998, applicant prepared a new DOR, served on
UEF, which captioned "American Runner Messenger Service,
Inc." as the employer. Additional MSCs were held on
March 11, 1998, and December 23, 1999, at which UEF again
appeared. At the latter MSC, the question of employment was
specifically placed in issue.
The
matter went to trial both on February 13, 2000, and March 23,
2000, with UEF appearing. The minutes of trial reflect that
"identification of the employer" was specifically
placed in issue. At trial, applicant testified and documents
were introduced in evidence. The documentary evidence
included pay stubs for the period of August 1994 through
November 1994, identifying the employer as "American
Runner Attorney Service," located at 11377 W. Olympic
Blvd., G100, Los Angeles, CA 90064. UEF offered no evidence
that "American Runner Attorney Service, Inc.," (or
any other entity) was the correct legal identity of the
employer.
After
clarification of relief from the automatic bankruptcy stay,
the WCJ issued a Findings and Order on May 18, 2000, in which
she found that evidence did not justify a finding of
employment by "American Runner Messenger Service, Inc.
or its predecessor in interest, American Runner Service and
Courier Network, Inc." In the WCJ's Opinion on
Decision, she also stated that applicant's pay stubs
identified his employer as "American Runner Attorney
Service," but that this entity was not a properly served
employer over which the WCAB had jurisdiction. Therefore, the
WCJ issued a finding of no employment by the only entity
against which applicant proceeded.
By
petition for reconsideration, applicant challenged the May
18, 2000 decision. UEF did not...
