ADJ14201895 — California WCAB decision

What the panel ordered

Petitions for Reconsideration denied.

Petitions for Reconsideration filed by Defendant and Cost Petitioner after Findings and Award decision; petitions reviewed and denied by WCAB panel.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Reconsideration / removalDefendant prevailed

The petitions for reconsideration were denied because the parties failed to show the WCJ acted without or in excess of powers or that the evidence did not justify the findings of fact. New arguments not raised at trial were rejected, and excluded evidence was found not material to bad faith determination.

From the decision · page 4Defendant alleges the undersigned acted without or in excess of its powers and the evidence does not justify the findings of fact. Defendant based this on the belief that the undersigned did not review Defendant's trial brief and that the decision was inconsistent with applicable law. The cost petitioner does not specify on which basis it has filed the Petition for Reconsideration, but one could infer that they are alleging the undersigned acted without or in excess of its powers when the undersigned excluded proffered exhibits. Cost Petitioner alleges the excluded exhibits were material to the determination of bad faith and that vacating the decision and submission is necessary to allow new evidence that was not available at the time of trial. Both parties failed to state facts that would support the undersigned acted without or in excess of its powers or that the evidence does not justify the findings of fact.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Petitions for reconsideration failed to show the WCJ acted without or in excess of powers or that the evidence did not justify findings of fact.

Favours Defendant prevailed

This supported denial of the petitions for reconsideration.

From the decision · page 4Defendant alleges the undersigned acted without or in excess of its powers and the evidence does not justify the findings of fact. Defendant based this on the belief that the undersigned did not review Defendant's trial brief and that the decision was inconsistent with applicable law. The cost petitioner does not specify on which basis it has filed the Petition for Reconsideration, but one could infer that they are alleging the undersigned acted without or in excess of its powers when the undersigned excluded proffered exhibits. Cost Petitioner alleges the excluded exhibits were material to the determination of bad faith and that vacating the decision and submission is necessary to allow new evidence that was not available at the time of trial. Both parties failed to state facts that would support the undersigned acted without or in excess of its powers or that the evidence does not justify the findings of fact.

New arguments not raised at trial were rejected on reconsideration.

Favours Defendant prevailed

This supported denial of the petitions for reconsideration.

From the decision · page 6Defendant alleges that the 8 CCR 9795.3(b)(1) is inapplicable. (Defendant Petition for Reconsideration, at page 3-4, lines 26-28, 1-23). This is a new argument that was not raised at the time of trial. The issues were listed by the parties specifically asking whether additional payments were warranted per 8 CCR 9795.3(b)(1). Defendant's post-trial brief also failed to address this issue that is now being raised. Since this issue was not raised at the trial level, it should not be considered for reconsideration. (See Cuevas v. Workers' Comp. Appeals Bd. (2005), 70 Cal.Comp.Cases 479 (writ den.); L.A. Unif. School Dist. v. Workers' Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 1220 (writ den.).)

Excluded exhibits 109-115 were found not material to bad faith determination and were properly excluded.

Favours Defendant prevailed

This supported denial of the petitions for reconsideration.

From the decision · page 6Cost Petitioner alleges that the Court should have taken in Exhibits 109-115, which it states were material to establishing that defendant engaged in bad faith and frivolous tactics. (Cost Petitioner Petition for Reconsideration, at page 1, lines 15-22). The Court sustained Defendant's objections in this instance. Defendant objected to the admission of the abovementioned exhibits on the basis of relevance and foundation because the EORs represented payments that were made

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

California Code of Regulations

8 CCR 9795.3(b)(1)

Applied to determine interpreter fee payment rate and to reject new arguments not raised at trial.

From the decision · page 6Defendant alleges that the 8 CCR 9795.3(b)(1) is inapplicable. (Defendant Petition for Reconsideration, at page 3-4, lines 26-28, 1-23). This is a new argument that was not raised at the time of trial. The issues were listed by the parties specifically asking whether additional payments were warranted per 8 CCR 9795.3(b)(1). Defendant's post-trial brief also failed to address this issue that is now being raised. Since this issue was not raised at the trial level, it should not be considered for reconsideration. (See Cuevas v. Workers' Comp. Appeals Bd. (2005), 70 Cal.Comp.Cases 479 (writ den.); L.A. Unif. School Dist. v. Workers' Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 1220 (writ den.).)

Case Law

Cuevas v. Workers' Comp. Appeals Bd. (2005)

New arguments not raised at trial should not be considered on reconsideration.

From the decision · page 6Defendant alleges that the 8 CCR 9795.3(b)(1) is inapplicable. (Defendant Petition for Reconsideration, at page 3-4, lines 26-28, 1-23). This is a new argument that was not raised at the time of trial. The issues were listed by the parties specifically asking whether additional payments were warranted per 8 CCR 9795.3(b)(1). Defendant's post-trial brief also failed to address this issue that is now being raised. Since this issue was not raised at the trial level, it should not be considered for reconsideration. (See Cuevas v. Workers' Comp. Appeals Bd. (2005), 70 Cal.Comp.Cases 479 (writ den.); L.A. Unif. School Dist. v. Workers' Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 1220 (writ den.).)

Case Law

L.A. Unif. School Dist. v. Workers' Comp. Appeals Bd. (2001)

New arguments not raised at trial should not be considered on reconsideration.

From the decision · page 6Defendant alleges that the 8 CCR 9795.3(b)(1) is inapplicable. (Defendant Petition for Reconsideration, at page 3-4, lines 26-28, 1-23). This is a new argument that was not raised at the time of trial. The issues were listed by the parties specifically asking whether additional payments were warranted per 8 CCR 9795.3(b)(1). Defendant's post-trial brief also failed to address this issue that is now being raised. Since this issue was not raised at the trial level, it should not be considered for reconsideration. (See Cuevas v. Workers' Comp. Appeals Bd. (2005), 70 Cal.Comp.Cases 479 (writ den.); L.A. Unif. School Dist. v. Workers' Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 1220 (writ den.).)

ADJ14201895 · May 12, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

The rules the panel named

What proof carried it

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