Filed 6/1/06 McAuliffe v. WCAB and Century Graphics CA3 NOT TO BE PUBLISHED California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT ---- PAMELA MCAULIFFE, Petitioner, C050970 (WCAB No. STK172958) v. WORKERS COMPENSATION APPEALS BOARD and CENTURY GRAPHICS, Respondents. Petitioner Pamela McAuliffe sustained an industrial injury to her right hand and wrist while employed by respondent Century Graphics (Century). McAuliffe left work following her accident, later returning after being released by her physician. McAuliffe filed a petition for penalties under Labor Code section 132a, alleging Century discriminated against her by terminating her employment. 1 Following a trial, a workers compensation judge (WCJ) found Century discriminated against McAuliffe and awarded her $10,000 under section 132a. Century sought reconsideration, which the Workers Compensation Appeals 1 All further statutory references are to the Labor Code. 1
Board (WCAB) granted. On reconsideration, the WCAB found no violation of section 132a and rescinded the WCJ s decision. McAuliffe appeals, arguing the WCAB s order granting reconsideration and decision after reconsideration fails to specify the reason for its decision, the WCAB erred in granting reconsideration, and the WCAB erred in not dismissing Century s petition for reconsideration. Century failed to file a response to McAuliffe s petition. We shall vacate the WCAB s order granting reconsideration and decision and shall dismiss Century s petition for reconsideration. FACTUAL AND PROCEDURAL BACKGROUND McAuliffe, employed as a blueline operator/binder at Century, injured her right hand and wrist while clearing a jammed machine on June 12, 2001. Dr. Scott Lipson, McAuliffe s primary treating physician, took her off work following the injury. On April 12, 2002, Dr. Lipson issued a report returning McAuliffe to work with no restrictions. At a hearing before the WCJ on June 15, 2005, McAuliffe testified Century terminated her employment when she returned to work following her release by Dr. Lipson on April 12, 2002. John Rashan, the manager who supervised McAuliffe, told her there was no job available when she returned to work. Rashan told McAuliffe there was no work for her at all. McAuliffe telephoned her attorney, and she, her attorney, and Rashan participated in a three-way conversation. After the conversation, Rashan said Century would hire her as a driver. Previously McAuliffe made $11 per hour; the driving job paid 2
$9 per hour. Rashan did not explain why he offered McAuliffe the driving job. McAuliffe accepted the driving job on the advice of her attorney and returned to work on May 19, 2002. On August 20, 2002, Dr. Lipson took McAuliffe off work again. McAuliffe never returned to Century. McAuliffe filed an application for adjudication of claim and a petition for penalties under section 132a. 2 The underlying claim was settled by a compromise and release, leaving only the section 132a petition. McAuliffe filed a declaration of readiness to proceed, and the court scheduled a mandatory settlement conference for November 30, 2004. Century failed to appear at the mandatory settlement conference. On December 7, 2004, the WCAB received a letter from Century s officer, Chris Katz, stating he had received notification that something happened on November 30, 2004. 2 Section 132a states, in part: It is the declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment. [ ] (1) Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because he or she has filed or made known his or her intention to file a claim for compensation with his or her employer or an application for adjudication, or because the employee has received a rating, award, or settlement, is guilty of a misdemeanor and the employee s compensation shall be increased by one-half, but in no event more than ten thousand dollars ($10,000), together with costs and expenses not in excess of two hundred fifty dollars ($250). Any such employee shall also be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer. 3
Katz stated he had not been notified about the proceeding and asked the WCAB to correct Century s address in its records. The WCAB noted Century claimed the address on the record was incorrect. However, the WCAB observed: [N]o mail has ever been returned; if in fact the address was incorrect, the employer failed to comply with Rule 10396. The matter was set for trial on January 19, 2005. Again, Century failed to appear. At the WCAB hearing before the WCJ, no sworn testimony was taken. Instead, McAuliffe made an offer of proof as to what her testimony would be: She would state she was injured on 6/12/01 while employed with Century Graphics. She was treated with Dr. Scott Lipson. Dr. Lipson took her off work in April of 2002. Dr. Lipson issued a report dated 4/12/02 in which he returned the applicant back to work with no restrictions. She would further testify that she returned to work and advised the defendant, Century Graphics, of her doctor s report indicating a return to work with no restrictions. She attempted to return to work full duties but was advised by Chris Katz that her employment with Century Graphics was being terminated. She would also testify that at the time of her termination she was performing her regular job duties. She believes her termination was due to her work injury. Since no one objected to the offer of proof, the WCJ accepted it into evidence. In a letter dated January 20, 2005, Katz informed the court that: I regret missing my appearence [sic] on Jan 19th 2005. It was not until after arriving here 31 E. Channel Street and 4
signing in I became aware it was not accutally [sic] the 19th. If it pleases the court and is possible I request a new date. There has [sic] been some problems in the past with an incorrect address for my company and other notifications submitted to the State Comp Atty who does not handle the 132a. I did know of the 19th and I am sorry for the error on my part. A few days later, Katz sent the WCJ a letter informing him that he strenuously object[ed] to McAuliffe s offer of proof at the January 19, 2005, hearing. Katz disputed McAuliffe s termination, arguing she returned to work in April 2002 and continued working until August 2002, when her doctor returned her to disability status. Katz also included payroll records and a doctor s note that he stated backed up his claims. Finally, Katz again apologized for missing the January 19, 2005, hearing. The WCJ set the matter for a hearing on June 15, 2005; both parties participated. At this hearing the previously summarized testimony was presented. Katz, appearing for Century, briefly questioned McAuliffe regarding Rashan s statements and then rested without presenting any evidence. 3 3 The relationship between Century and Katz is unclear from the record. Although Katz represented that Century was a California corporation and he its officer, the WCJ found the [t]rue legal name of defendant remains unknown, despite specific order of the WCJ to file a verified statement of such. What is clear is that Katz represented Century throughout the litigation. The Workers Compensation Act permits representation by laypersons in proceedings before the WCAB. (See 5501.) 5
The WCJ took the matter under submission and ultimately issued an opinion finding McAuliffe established a prima facie case of unlawful discrimination by Century, which Century failed to refute. According to the WCJ, McAuliffe s testimony in particular about the conversations with John Rashan were unrebutted and were substantial evidence of unlawful discrimination by the employer. The WCJ found Century unlawfully discriminated against McAuliffe within the meaning of section 132a as set forth in her petition. The WCJ awarded McAuliffe the statutory penalty of $10,000 and $2,000 in attorney fees, to be deducted from the $10,000 penalty. The WCJ also accepted Katz s excuse for missing the earlier hearing and did not sanction him under section 5813. On July 1, 2005, Katz requested the WCAB reconsider the WCJ s decision. Katz stated: I am requesting a new evidentiary hearing as I was not allowed to present relevant evidence, nor was I fully allowed to present my arguments. Judge Bovett prevented me from testifying on my own behalf, and allowed the applicant to change her claim of discrimination in the middle of the hearing without notice or reason. The letter was not served on McAuliffe, nor was it verified. The WCJ issued a Report and Recommendation on Petition for Reconsideration. The WCJ construed Katz s July 1, 2005, letter as a petition for reconsideration but noted it failed to set forth any statutory ground for reconsideration. The WCJ stated Katz s allegations were untrue, noting: Petitioner was 6
afforded a full evidentiary hearing on 6/15/05. He was allowed to call witnesses, over the objection of applicant s counsel. He was afforded opportunity to present any and all documentary evidence he wished to offer into evidence, and to procure any and all testimony. The WCJ also stated he ha[d] no idea why Katz claimed the WCJ allowed McAuliffe to change her discrimination claim in midhearing. The WCJ concluded Katz s allegations were both baseless and flatly contradicted by the record, and recommended the petition for reconsideration be denied. Katz replied to the WCJ s recommendation with a letter, again unverified and unserved, to the WCAB. Katz again claimed to have not received various documents in the litigation. Katz professed ignorance of McAuliffe s claims until the June 15, 2005, hearing. Katz then presented his own version of events. After McAuliffe returned from her disability leave, she spoke with John Rochon, 4 who explained her old job was not available due to the department being disbanded. According to Katz: Apparently Ms. McAuliffe interpreted this as a termination, which it was not. Rashan reported the conversation to Katz, who asked whether Rashan had offered McAuliffe a driver s position. According to Katz: This is the same position that other personnel in the diazo/blueline department were offered 4 Katz states the proper spelling is Rochon, not Rashan. For clarity s sake we will use Rashan, since it appears in all the official transcripts. 7
when the department was disbanded. In response, Rashan immediately offered McAuliffe the driver s position, which she accepted. Katz asserted the payroll records he submitted verified McAuliffe s return to work as a driver. Katz claimed the WCJ took no interest in these documents. Katz also claimed the WCJ stated he could not make statements concerning the case except through questioning of the witness. This provided the basis for Katz s claim that the WCJ prevented him from presenting his arguments. Katz concluded: While there has [sic] been numerous miscommunication [sic] and failings by all parties in this action the fact remains that Century Graphics has never terminated Ms. McAuliffe. Her old position as diazo/blueline operator was eliminated by technology not by any action of management. As with other personnel who were affected by the elimination of this department she was offered and accepted a position as a driver. The WCAB granted reconsideration and issued an opinion and order. In its recitation of the facts, the WCAB observed: Applicant then testified that she alleges she was terminated from her employment and that she was told by a manager, John Rashan, that she could not come back to work. Applicant did not provide a date for the alleged termination. Applicant further testified that, when she asked to return to work, Mr. Rashan offered her a job as a driver, that she returned to work after April 12, 2002, as a driver, that when she returned to work she 8
was aware the diazo department was closing, that by May 19, 2002, the diazo department was no longer in existence.... (Fn. omitted.) The WCAB noted the employee bears the burden of proving by a preponderance of the evidence a violation of section 132a. The WCAB found McAuliffe failed to produce any evidence of the date of her alleged termination. In addition, [A]pplicant s testimony that she was terminated is inconsistent and contrary to her testimony that she worked for the employer, as a driver, from the time she was released to return to work until her doctor took her off work and returned her to disability. Further, applicant testified that when she returned to work following the injury, the entire diazo department was closing and her former job as a blueline operator was no longer available. Applicant did not produce any evidence showing that the diazo department was closed because the employer was discriminating against her in violation of Labor Code section 132a. Nor did applicant present evidence that the employer had a legal duty not to close the diazo department. Finally, applicant merely showed a detriment without discrimination when she testified that she made less as a driver than in her former job in the diazo department. Applicant did not present evidence that the employer had a legal duty to reemploy her at her previous pay rate even though her former job no longer existed. 9
DISCUSSION McAuliffe challenges the WCAB s granting of Century s petition for reconsideration. McAuliffe argues Century s failure to serve or verify the petition precludes its consideration. In addition, McAuliffe contends the lack of specific grounds for reconsideration dooms Century s petition for reconsideration. We find merit in McAuliffe s contentions. A copy of the petition for reconsideration shall be served forthwith upon all adverse parties by the person petitioning for reconsideration. ( 5905.) The failure to serve the opposing party with a copy of the petition is not necessarily prejudicial error where the party, after reconsideration is granted, has notice and opportunities to appear at a further hearing. A party s opportunity to present evidence in support of his or her contentions obviates the error. (Postural Therapeutics v. Workers Comp. Appeals Bd. (1986) 179 Cal.App.3d 551, 555, disapproved on other grounds by Camper v. Workers Comp. Appeals Bd. (1992) 3 Cal.4th 679, 690.) Here, Century, through Katz, sent a letter to the WCAB dated July 1, 2005, formally requesting reconsideration of the WCAB s June 21, 2005, ruling in McAuliffe s favor. Century failed to serve McAuliffe with a copy of the request. McAuliffe did not receive a copy of the letter until the WCJ issued its recommendation, served on July 19, 2005, with the letter enclosed. McAuliffe s ignorance of the petition prevented her from responding to Century s claims. Nor did McAuliffe have any 10
opportunity to respond to the claims prior to or after the granting of the petition: the WCAB granted the petition and rescinded the WCJ s decision in one fell swoop. A failure to serve documents in a WCAB proceeding in the manner required by statute is not a mere irregularity but, rather, an omission of substance which denies a fundamental right. (Hartford Accident & Indem. Co. v. Workers Comp. Appeals Bd. (1978) 86 Cal.App.3d 1, 3.) Century s lack of service of the petition on McAuliffe deprived her of any opportunity to state her case or present any evidence prior to the WCAB s ruling against her. McAuliffe also points to Century s failure to verify its petition, a failure noted by the WCJ. Section 5902 provides, in part: The petition for reconsideration [before the WCAB]... shall be verified upon oath in the manner required for verified pleadings in courts of record.... However, verification of a petition for reconsideration is not a jurisdictional requirement that mandates dismissal. (Wings West Airlines v. Workers Comp. Appeals Bd. (1986) 187 Cal.App.3d 1047, 1055.) In Lucena v. Diablo Auto Body (2000) 65 Cal.Comp.Cases 1425 (Lucena), the WCAB dismissed a petition for reconsideration that the respondent failed to verify. The WCJ noted the petition was unverified and recommended the petition be dismissed unless within a reasonable period the defendant submitted verification. The defendant failed to do so. In dismissing the petition, the WCAB observed: The statutory requirement for verification is clear on its face, assuring accuracy and responsibility in the pleadings, and 11
compliance with this statutory requirement should be expected and required. (Lucena, supra, 65 Cal.Comp.Cases at p. 1427.) However, in a footnote the WCAB also acknowledged it possessed the discretion not to dismiss an unverified petition: Therefore, under some circumstances (e.g., where the petitioner is a pro per applicant or a pro per defendant, where the failure to verify is not pointed out by the WCJ s report or the respondent s answer, and/or where we believe no prejudice results from the failure to verify), we may elect not to dismiss an unverified petition. In the usual case, however, we will dismiss, so the prudent practitioner will verify, as required by statute. (Id. at p. 1427, fn. 4.) Here, Century proceeded without counsel. However, the WCJ, in responding to the petition, pointed out the lack of verification. Given Century s failure to serve the petition, coupled with its failure to verify the petition, we believe the unserved, unverified petition should be dismissed. The fragmentary and skeletal grounds for reconsideration set forth in Century s petition further bolster this conclusion. Section 5803 accords the WCAB continuing jurisdiction to rescind or revise its awards good cause appearing therefor. Such cause may consist of newly discovered evidence that was previously unavailable, a change in the law, or any factor or circumstance that was unknown at the time the original order was made that renders the previous findings and award inequitable. Where there is no mistake but merely a lack of full knowledge of the facts because of the failure of a party to exercise due 12
diligence to ascertain them, there is no proper ground for relief. (Brannen v. Workers Comp. Appeals Bd. (1996) 46 Cal.App.4th 377, 382.) In his July 1, 2005, letter, Katz merely states the WCJ prevented him from presenting evidence at the June 15, 2005, hearing. Katz further contends the WCJ allowed McAuliffe to change her claim of discrimination in midhearing. Our reading of the record belies both these claims. At the hearing, Katz did not request the opportunity to testify, nor did he offer any evidence in opposition to McAuliffe s testimony. In addition, the WCJ offered Katz every opportunity to question McAuliffe. McAuliffe s discrimination claim did not change during the hearing. Katz s letter merely reflects his dissatisfaction with the WCJ s decision; it does not set forth any statutory grounds for reconsideration. Katz, in a letter dated July 25, 2005, presents further arguments in favor of reconsideration. However, as with his previous letter, Katz failed to either verify the document or serve it on McAuliffe. McAuliffe does not even mention the July 25, 2005, letter in her petition for writ of review, and it is possible she had no knowledge of the letter, which makes its first appearance in the record of proceedings filed in this court on December 27, 2005. Given the lack of notice to McAuliffe, the lack of verification of Century s petition, and the lack of articulated grounds for reconsideration, the WCAB should have dismissed Century s petition for reconsideration. To accomplish this 13
purpose, we shall vacate the WCAB s prior order granting reconsideration and substitute an order dismissing the petition for reconsideration. DISPOSITION The opinion and order granting reconsideration and decision after reconsideration filed August 30, 2005, is vacated. Century s petition for reconsideration filed July 1, 2005, is dismissed. McAuliffe shall recover costs on appeal. RAYE, J. We concur: NICHOLSON, Acting P.J. BUTZ, J. 14