ADJ3543062 — California WCAB decision

What the panel ordered

August 15, 2019 Findings and Order rescinded; matter returned to arbitrator for further proceedings and decision

Petition for reconsideration of August 15, 2019 Findings and Order; decision after reconsideration

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.

Jurisdiction / venueRemanded

The Board found the record inadequate for a decision on coverage and remanded the matter to the arbitrator to create an adequate record and reconsider the coverage issue.

From the decision · page 2We have considered the Petition for Reconsideration, and we have reviewed the record in this matter. The arbitrator has filed a Report and Recommendation on Petition for Reconsideration, recommending that the petition be denied. For the reasons discussed below, we will rescind the arbitrator's decision and return this matter to the arbitrator so that he may independently consider the evidence in this matter, render a decision, and document the proceedings as mandated by Hamilton v. Lockheed Corp. (2001) 66 Cal.Comp.Cases 473 (Appeals Bd. en banc).

The facts that decided it

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

The rules the panel named

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

Hamilton v. Lockheed Corp. (2001) 66 Cal.Comp.Cases 473 (Appeals Bd. en banc)

An arbitrator's decision must be based on admitted evidence and supported by substantial evidence. A full and complete record allows for a meaningful right of reconsideration.

From the decision · page 2Our review of this matter is complicated by the absence of a Minutes of Hearing identifying the issues in dispute and the fact that the exhibits were not adequately identified and admitted into evidence as required by Hamilton, supra. An 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).

Labor Code section 5275(a)

Coverage disputes are subject to mandatory arbitration under Labor Code section 5275(a) and within the jurisdiction of the WCAB.

From the decision · page 2Coverage disputes are subject to mandatory arbitration under Labor Code section 5275(a) and within the jurisdiction of the WCAB. (See e.g. Florists Mutual Insurance Company v. Workers' Comp. Appeals Bd. (Bigsby) (2015) 80 Cal.Comp.Cases 582 (writ den.); Monarch Consulting v. Workers' Comp. Appeals Bd. (Martinez) (2014) 79 Cal.Comp.Cases 958 (writ den.).)

Insurance Code sections 11650, 11651, 11657, 11658, 11659, 11660

The terms of workers' compensation policies issued in California are governed by statute, and each policy is conclusively presumed to contain all the provisions required by law. Policies must contain a clause that the insurer will be directly and primarily liable to any proper claimant. Endorsements limiting coverage require prior approval by the Insurance Commissioner. Failure to follow regulations renders the policy unlimited.

From the decision · page 3The terms of workers' compensation policies issued in California are governed by statute, and each policy is conclusively presumed to contain all the provisions required by law. (Ins. Code, § 11650.) Workers' compensation insurance policies in California are subject to regulation by the Department of Insurance. (Ins. Code § 11651, 11657, 11658.) All workers' compensation policies must "contain a clause to the effect that the insurer will be directly and primarily liable to any proper claimant for payment of...compensation." (Ins. Code § 11651.) Endorsements that limit or restrict coverage of workers' compensation policies are subject to prior approval by the Insurance Commissioner. (Ins. Code § 11657; Cal. Code of Regs., tit. 10, § 2261, 2262.) Workers' compensation policies may only be limited and restricted in accordance with regulations adopted by the Insurance Commissioner and failure to follow the regulations renders the policy unlimited. (Ins. Code, § 11659, 11660.) At the time the relevant policies were written, a policy could be limited and restricted using a California Approved Form Endorsement or a standard endorsement approved by the Insurance Commissioner.

Cal. Code Regs., tit. 8, §§ 10914, 10995

The WCAB Rules of Practice and Procedure require the arbitrator to make and maintain a record of the arbitration proceeding and describe the content of that record. These rules guide petitions for reconsideration from an arbitrator's decision.

From the decision · page 2We are unable to render a decision based on this record and must return the matter to the arbitrator to create an adequate record. Effective January 1, 2020, the Workers' Compensation Appeals Board Rules of Practice and Procedure include a new rule that sets forth a requirement that the arbitrator make and maintain a record of the arbitration proceeding and describes the content of that record. (Cal. Code Regs, tit. 8, § 10914.) Because further proceedings will be conducted after January 1, 2020, the arbitrator and parties should consult WCAB Rules 10914 and 10995 for guidance on the requirements of an arbitration record and petitions for reconsideration from an arbitrator's decision. (Cal. Code Regs., tit. 8 § 10914, 10995.)

ADJ3543062 · December 1, 2021

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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The rules the panel named

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