In the intricate realm of workers’ compensation law, where fairness and due process are paramount, a recent case before the California Workers' Compensation Appeals Board has illuminated crucial principles regarding the consideration of evidence, particularly vocational evidence, in determining permanent disability.

Kendra A. Garcia

In Sandra Ja’Chim Scheuing v. Livermore National Laboratory, an applicant contested a decision made by a workers’ compensation administrative law judge (WCJ). The WCJ had concluded that the applicant had a permanent disability of 28%, a determination vehemently disputed by the applicant, who claimed 100% permanent and total disability.

The crux of the applicant’s argument lay in the contention that the WCJ had failed to adequately weigh all pertinent medical and vocational evidence.

Under California law, parties aggrieved by final decisions in workers’ compensation cases have the right to petition for reconsideration. However, adherence to statutory timelines is critical, as any delay in action can raise substantial due process concerns.

In this instance, administrative error — specifically, failure of the district office to transmit the petition for reconsideration to the board within the 60-day time limit for it to act on a petition, pursuant to Labor Code (LC) Section 5909 — led to a delay by the WCAB in addressing the applicant’s petition. This administrative error leading to the WCAB’s late consideration prompted a reevaluation of procedural requirements in light of fundamental fairness. 

The WCAB agreed to review the petition for reconsideration, citing Shipley v. WCAB (1992), wherein the Court of Appeal held that the time to act on the applicant’s petition was tolled during the time the board had misplaced the file, through no fault of the parties. The board noted that, if a timely filed petition is never acted upon and considered because it is “deemed denied” due to an administrative irregularity and not through the fault of the parties, the petitioning party is deprived of the right to a decision on the merits of the petition.

Further, the applicant’s attorney filed supplemental pleadings without seeking permission from the board as required by Cal. Code Regs. Tit. 8, Section 10964. Despite the attorney’s error, the board exercised its discretion to consider the applicant’s supplemental pleadings that were submitted to demonstrate that the petition for reconsideration had been timely filed. 

The board also considered recent en banc opinions (Nunes I and II), which have brought clarity to the role of vocational evidence in such proceedings. The WCAB reiterated that vocational evidence can significantly impact determinations of permanent disability. Nevertheless, it stressed the importance of ensuring that such evidence does not unduly influence apportionment decisions.

This nuanced legal landscape necessitated a closer examination of vocational evidence in the case under review. Specifically, remand appears to have been allowed for further development of the record to include review of vocational evidence by the agreed medical evaluator. 

Ultimately, the WCAB opted to grant the applicant’s petition for reconsideration, recognizing the imperative of due process and the necessity for a comprehensive review of all evidence. By overturning the prior decision and remanding the matter to the WCJ for further proceedings, the WCAB underscored its commitment to procedural equity and the equitable resolution of workers’ compensation disputes.

The case serves as a poignant reminder of the multifaceted legal issues inherent in workers’ compensation cases and the pivotal role that vocational evidence plays in shaping disability determinations. It underscores the WCAB’s unwavering dedication to upholding due process and ensuring that all parties have an equitable opportunity to present their case.

As workers’ compensation law continues to evolve, striking a balance between procedural rigor and substantive justice remains imperative for safeguarding the rights of all stakeholders involved.

Kendra A. Garcia is an associate attorney in the San Francisco office of defense firm Mullen & Filippi. This case brief is republished with permission.