Rivera v. Workers' Comp. Appeals Bd

• Decision Date: 08 April 1987
• Citation: 236 Cal.Rptr. 28,190 Cal.App.3d 1452
• Court: California Court of Appeals Court of Appeals
• Parties: Eddie RIVERA, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD; State of California, Department of Youth Authority; and State Compensation Insurance Fund, Respondents. B020609.

Page 28

236 Cal.Rptr. 28

190 Cal.App.3d 1452

Eddie RIVERA, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD; State of California, Department of Youth Authority; and State Compensation Insurance Fund, Respondents.

B020609.

Court of Appeal, Second District, Division 6, California.

April 8, 1987.

Review Denied June 17, 1987.

William A. Herreras, San Luis Obispo, for petitioner.

Krimen, Brodie, Hershenson & Da Silva and Robert A. La Porta, San Francisco, for respondent State of California, Dept. of Youth Authority.

Richard W. Younkin, William B. Donohoe, Alvin R. Barrett, and Charles E. Finster, San Francisco, for respondent W.C.A.B.

STONE, Presiding Justice.

Petitioner Eddie Rivera (applicant) seeks review of a decision of respondent Workers' Compensation Appeals Board reinstating the decision of the Rehabilitation Bureau which terminated applicant's rehabilitation benefits. We conclude that the Board erred in determining that applicant's appeal from the Bureau decision was procedurally defective.

Applicant, while employed as a peace officer by defendant California Youth Authority, sustained industrial injury in March 1980 resulting in a permanent disability award and a compromise and release of all his claims except entitlement to rehabilitation benefits.

After his initial request for rehabilitation benefits, Bureau proceedings commenced and he was paid vocational rehabilitation temporary disability indemnity. Following consultation, a rehabilitation plan was developed and submitted to the Bureau. The Bureau approved the plan; however, the planned program proved unsuccessful. A Bureau conference was then requested in an attempt to salvage applicant's rehabilitation. The conference was held before Mr. Breffitt, the Bureau's consultant. Applicant and his counsel were present. In view of failure of the plan, Mr. Breffitt referred applicant to an independent vocational evaluator for opinion as to applicant's status as a qualified injured worker.

Following interviews and counseling, the evaluator found that applicant was hostile, rude, uncooperative, and unrealistic in his approach to rehabilitation; and that no reasonable expectation existed for applicant's return to competitive labor through vocational rehabilitation services.

Defendant's adjusting agency then indicated that it would seek closure of rehabilitation benefits, whereupon applicant requested a hearing. The Bureau consultant by telephone advised applicant's counsel that the Bureau would not grant the request for hearing. Consequently, on May 1, 1984, applicant filed with the Workers' Compensation Judge (WCJ) a declaration of readiness to proceed, stating: "Rehab Appeal (Request for Conference--see attached); per telephone conference with consultant, Mr. Breffitt he refuses to set a conference; a hearing is necessary ... principal issues are-- ... Request for Order to hold conference ... Alternatively--a request for extension of Rehab benefits and continuing VRTD [vocational rehabilitation temporary disability] ..."

Thereafter, on May 7, 1984, the Bureau issued its formal decision and order, based on the evaluator's report, that applicant cannot reasonably be expected to return to suitable gainful employment through vocational rehabilitation services, and accordingly can no longer be considered a qualified injured worker under California Administrative Code, title 8, chapter 4.5, section 10003, subdivision (c)(2).

The WCJ set applicant's readiness declaration for hearing as an appeal. Several medical reports were received in evidence at the hearing, including a May 1984 report of Dr. Smith that applicant was physically able to return to some occupations, such as a paralegal. Consultant Breffitt testified that the procedural rules as to "documentation and adequacy" in filing an appeal are "widely not followed," and "the [WCJs] generally allow supplementation and proceed to [determine the appeal] on the merits of the case." Mr. Breffitt testified further that he based his termination order on the report of the evaluator he had appointed at the "oral conference" on December 13, 1983; he expected the "Laird principle" (Laird v. Workers' Comp. Appeals Bd. (1983) 147 Cal.App.3d 198, 195 Cal.Rptr. 44) would be applied, and so advised defendant; and defendant "appeared to be unhappy with the process of continuing benefits or possibly continuing benefits." Mr. Breffitt also testified that he received no new medical reports since December of 1983; the rule permitting remand to him on appeal "would serve no useful purpose in this case"; and he "believed that was necessary to move the case on to the Board level for a determination of the issue which he had already concluded."

The WCJ ordered the Bureau's decision set aside and the case remanded to the Bureau for re-evaluation, hearing, and consideration of any new or additional cumulative evidence presented by either party; and to then issue an appropriate order, preserving the rights of the parties to appeal that order. The WCJ concluded that the record is overwhelmingly clear that applicant indicated to his counsel he wanted to be heard before a decision was made, and yet was not granted a hearing; and that a hearing should have been granted, and is "mandated by elementary rules of due process as enumerated in the Laird case." The WCJ opined further that the Bureau "would be well advised to hear people before they shut them off."

The Board granted reconsideration, reversed the WCJ, and reinstated the Bureau's May 7, 1984 decision terminating rehabilitation benefits. The Board, citing its panel decision in another case (Perez v. Eagle Truck Line, Inc. (1979) 44 Cal.Comp.Cases 1030, 1032), opined that applicant's readiness declaration did not comply with the formal requirements of pleading set forth in sections 10008, 10955, and 10956 of title 8 chapter 4.5, of the California Administrative Code so as to constitute a "proper petition or appeal from the Bureau's decision" in that no " 'petition' " was filed. In view of that conclusion, the Board did not address on the merits the issue whether applicant had been denied his due process right to a hearing before the Bureau terminated rehabilitation.

Applicant then petitioned for reconsideration, urging that the Board's decision was condoning and promoting form over substance. The Board rejected this assertion, and again disposed of the matter on the ground that applicant's readiness declaration did not satisfy the formal requirements for an appeal from the Bureau's decision, noting an additional factor that the declaration was filed (on May 1, 1984) prior to the Bureau's May 7, 1984 decision, and that the Board's rules of practice and procedure "must be followed, otherwise the [Board] would be inundated with 'appeals' or Declarations of Readiness...