A petition for reconsideration is an inappropriate remedy to a judge’s order taking a matter off calendar, according to a new significant panel decision from the Workers’ Compensation Appeals Board.

John P. Kamin

The WCAB warned that inappropriate petitions for reconsideration are sanctionable in its latest significant panel decision, Latrice Reed v. County of San Bernardino. Other key elements of the decision are clarification that a judge’s order taking a case off calendar is not final and that a petition for removal is the appropriate remedy for a party disagreeing with an OTOC.

The underlying dispute

The case found its way on calendar after applicant’s attorney filed a declaration of readiness to proceed to a mandatory settlement conference. The applicant’s attorney had filed the DOR because he was unhappy with an order for defendant to pay $840 in LC 5710 fees. Instead, the applicant’s attorney felt that $892.50 was warranted.

At the MSC, the workers’ compensation judge disagreed that the matter should be set for trial over $52.50 and issued an order taking the matter off calendar.

Louis A. Larres

The recon

Applicant’s attorney filed a petition for reconsideration, arguing that the case should not have been taken OTOC.

At the Appeals Board level, the commissioners cited their en banc decision in Ledezma v. Kareem Cart Commissary and Mfg. for the proposition that OTOCs are not final and that “seeking reconsideration of non-final orders is sanctionable.” The WCAB noted that in the Reed case, applicant’s attorney had erroneously filed a petition for reconsideration instead of a petition for removal. In other words, the commissioners determined that the filing of the petition for reconsideration was not a deliberate act for an improper purpose, hinting at prior decisions where petitions for reconsideration were filed solely for the purpose of delaying proceedings.

“Thus, for the purpose of this decision, we will assume that the filing of a petition for reconsideration rather than one for removal was merely a careless error,” the WCAB wrote. “Accordingly, we do not take up the issue of sanctions at this time.”

The commissioners admonished the applicant’s attorney and clarified that he should have filed a petition for removal instead. They warned the attorney that if he files an inappropriate petition for reconsideration in the future, it could be sanctionable under LC 5813, WCAB Rule 10841 and CCR 10421.

The WCAB went on to treat the petition as for removal and analyzed whether trial was appropriate.

“Here, Mr. Ramirez seeks a trial over the amount of $52.50,” the WCAB wrote. “We agree with the WCJ that under these circumstances, judicial economy would be best served by trying such a dispute along with the case in chief as part of a single trial. Indeed, as WCAB 10787(a) makes abundantly clear, parties must submit all matters at issue at a single trial.”

In other words, the commissioners do not want to see trials over singular, smaller issues such as a dispute over LC 5710 fees. Rather, they prefer that those issues be grouped with all of the other triable issues in a case.

Judges may bifurcate singular issues and set those issues for trial when they feel it is appropriate, but in this case, the trial judge clearly felt that bifurcation was not. The WCAB agreed with the trial judge, determined that removal was not warranted and rejected the petition.

Analysis from the appellate department

Louis Larres, an equity partner who heads Bradford and Barthel’s appellate department, said the decision breaks from a prior pattern of decisions where the WCAB would not punish parties for filing the wrong petition.

“I think this represents an interesting and much-needed break from the trend the board has demonstrated for some time now in dealing with petitions for removal and reconsideration,” he said. “Oftentimes, the board responds to a petition for removal with an opinion and order on reconsideration. In doing so, the board usually points to a finding of the trial judge that usually isn’t representative of the issues adjudicated at trial, such as causation or employment. These are issues the trial judge usually recites in the findings based on the stipulations of the parties.”

Larres noted that on other occasions, the WCAB has applied “the removal standard” when the issue being challenged is a non-final decision.

“It is not entirely clear to me why the board takes this approach, aside from perhaps a reluctance to penalize a party for not knowing the difference between a final and non-final order when the issue is a bit murky,” he said. “In the case of an order taking off calendar, it should be clear to all, and now even more so, that such an order is non-final and subject to removal.”

Takeaways

There are several key takeaways that workers’ compensation practitioners can learn from the significant panel decision in Reed, which are:

• An OTOC is not a final order.
• If one is disputing an OTOC, a petition for removal is the appropriate remedy.
• If one files a petition for reconsideration in response to an OTOC, that is sanctionable.
• The WCAB does not want trials set over smaller issues, such as disputes over $52.50. Instead, the WCAB prefers trials to be on all issues so that larger and smaller issues can be resolved simultaneously.

The decision serves the principle of judicial economy, which is the concept that parties should not waste the court’s time and resources. The principle exists to make the courts operate more efficiently and to avoid bogging them down with countless trials over smaller, singular issues.

Parties should take care to determine whether the order they are disputing is final or interlocutory. Those challenging a final order should file petitions for reconsideration. But if the order in dispute is interlocutory, the objecting party’s remedy is a petition for removal.

John P. Kamin is a workers’ compensation defense attorney and equity partner at Bradford & Barthel’s Woodland Hills location. He is WorkCompCentral's former legal editor. Louis Larres is a partner and area managing attorney at Bradford and Barthel’s Fresno office and the director of the firm’s Appellate Division. This entry from Bradford & Barthel's blog appears with permission.