ADJ1718407 · January 20, 2022

The record was inadequate to address the merits; the matter was returned to the trial level for further proceedings to create a proper record and determine all issues raised by the parties.

From the decision · page 5In this case, it appears that the arbitrator erroneously believed that because insurers are jointly and severally liable for certain benefits, he could not apportion liability for those benefits in a contribution proceeding. In fact, the reason contribution proceedings exist is to allow an applicant to receive prompt payment of benefits from an elected insurer by allowing the elected insurer to promptly recover from other insurers after the applicant's case is resolved. By assigning 1/3 liability for certain benefits to each insurer rather than addressing the proportional liability of each insurer, the arbitrator did not address the contribution issues submitted to him.

The record lacked an adequate transcript and properly admitted exhibits, preventing a meaningful review of the issues.

Favours neutral

Without a full and complete record, the Appeals Board could not address the merits and had to return the matter to the trial level for further proceedings.

From the decision · page 3Our review of this matter is complicated by the absence of a transcript identifying the issues in dispute and the fact that the exhibits were not adequately identified and admitted into evidence as required by Hamilton, supra. "The Findings and Orders and Decision of Arbitrator" references a transcript but, it was not filed with the Appeals Board. The arbitrator's decision must be based on admitted evidence and must be supported by substantial evidence. (Lab. Code, § 5903, 5952 (d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (Garza) (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) A full and complete record allows for a meaningful right of reconsideration. (Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal. 2d 753.) See also Hernandez v. Staff Leasing (2011) 76 Cal.Comp.Cases 343 (Appeals Board Significant Panel Decision). Therefore, we must return this matter to the trial level for parties and arbitrator to create a proper record.

The arbitrator erroneously believed that joint and several liability precluded apportionment of benefits among insurers in a contribution proceeding.

Favours neutral

This misunderstanding led to an incomplete decision that did not address proportional liability, necessitating remand for further proceedings.

From the decision · page 5In this case, it appears that the arbitrator erroneously believed that because insurers are jointly and severally liable for certain benefits, he could not apportion liability for those benefits in a contribution proceeding. In fact, the reason contribution proceedings exist is to allow an applicant to receive prompt payment of benefits from an elected insurer by allowing the elected insurer to promptly recover from other insurers after the applicant's case is resolved. By assigning 1/3 liability for certain benefits to each insurer rather than addressing the proportional liability of each insurer, the arbitrator did not address the contribution issues submitted to him.

Lab. Code, 5900(a), 5903, 5909

Petitions for reconsideration must be filed within 25 days of a final decision and are deemed denied if not acted upon within 60 days.

The petitions for reconsideration were timely filed and acted upon within the 60-day period.

From the decision · page 2As an initial matter, both petitions are timely. To be timely, a petition for reconsideration must be filed with (i.e., received by) the WCAB within 25 days from a "final" decision that has been served by mail upon an address in California. (Lab. Code, § 5900(a), 5903; Cal. Code Regs., tit. 8, former § 10507(a)(1), now § 10605(a)(1), former § 10845(a), now § 10940(a); former § 10392(a), now § 10615(b) (eff. Jan. 1, 2020).) A petition for reconsideration of a final decision by a workers' compensation administrative law judge must be filed in the Electronic Adjudication Management System (EAMS) or with the district office having venue. (Cal. Code Regs., tit. 8, former § 10840(a), now § 10940(a) (eff. Jan. 1, 2020).) Labor Code section 5909 provides that a petition for reconsideration is deemed denied unless the Appeals Board acts on the petition within 60 days of filing. (Lab. Code, § 5909.) Section 5315 provides the Appeals Board with 60 days within which to confirm, adopt, modify or set aside the findings, order, decision or award of a workers' compensation administrative law judge. (Lab. Code, § 5315.)

Lab. Code, 5500.5(e)

Employers during the cumulative trauma period are jointly and severally liable and may seek contribution from each other in separate proceedings.

The case involves contribution and reimbursement issues related to two cumulative trauma injuries and multiple insurers/employers.

From the decision · page 4When an employee sustains a cumulative trauma injury, the employee may pursue his or her claim for benefits against any one or more of successive employers that employed the employee during the cumulative trauma. (Lab. Code, § 5500.5.) If there are multiple employers during the 5500.5 liability period, the employers are jointly and severally liable for the entire award and may seek contribution from each other during separate proceedings. (Lab. Code, § 5500.5(e); Denny's Inc. v. Workers' Comp. Appeals Bd. (Bachman) (2003) 104 Cal. App. 4th 1433 [68 Cal.Comp.Cases 1].)

Lab. Code, 5273, 5275(a)

Disputes over contribution pursuant to Section 5500.5 must be submitted to arbitration and costs split between parties.

The arbitrator must address contribution issues and allocate liability among insurers.

From the decision · page 4An applicant may elect against any defendant who has potential liability for the alleged cumulative injury, and any defendant held liable may proceed against other potentially liable insurers or employers. (Industrial Indemnity Co. v. Workers' Comp. Appeals Bd. (Garcia) (1997) 60 Cal.App.4th 548 [62 Cal.Comp.Cases 1661].) If an applicant elects to proceed against a single insurer, the insurer is entitled under Labor Code section 5500.5 to seek contribution for awarded benefits from the remaining insurers in subsequent proceedings. (See Schrimpf v. Consolidated Film Industries, Inc. (1977) 42 Cal.Comp.Cases 602 [en banc].) This procedure is intended to promote a prompt determination of an injured worker's entitlement to workers' compensation benefits. (Rex Club v. Workers' Comp. Appeals Bd. (Oakley-Clyburn) (1997) 53 Cal.App.4th 1465 [62 Cal.Comp.Cases 441].) Disputes over the right of contribution pursuant to Section 5500.5 are required to be submitted to arbitration and the cost of arbitration is split between the parties. (Lab. Code, § 5273, 5275(a).)