5th DCA Grants Review to Dispute over Worker's Earnings

"A scrivener's error as to how much a worker made is different from the failure to state an affirmative defense or request penalties, Alan Gurvey opined, since the question of earnings is simply a factual issue."

The 5th District Court of Appeal has agreed to weigh in on the question of whether the Workers' Compensation Appeals Board should have adjusted the amount of a truck driver's award of benefits after the parties discovered they had mistakenly stipulated to his earnings being lower than they actually were.

Attorney Michael Burgis filed a writ petition on behalf of Carlos Garcia asking the 5th DCA to order the board to set aside the award back in March. He is arguing that the award wrongfully deprives Garcia of the benefits to which he was legally entitled and has resulted in the unjust enrichment of the insurance carrier for Garcia's former employer.

The court granted writ two weeks ago, and it has ordered the board to provide it with the record of the administrative proceedings in Garcia's case, saying it appeared the board exceeded its powers and jurisdiction by doing nothing to correct the error both parties had overlooked.

Garcia injured his back in 2012, while working for Key Energy Services. He received treatment from Dr. David Silver, but Key's claims administrator refused to authorize Silver as Garcia's primary treating physician.

The administrator, Gallagher Basset Services, insisted that Garcia had to see a doctor within its medical provider network for the treatment to be authorized.

With the assistance of Burgis and his law firm, Garcia filed a petition for penalties, contending Silver was within the Gallagher Basset MPN and that he was owed temporary total disability benefits in accordance with Silver's assessment of his condition.

The petition requested benefits of $778.61, which represented two-thirds of Garcia's weekly pre-injury earnings of $1,167.91.

Garcia's petition was set for an expedited hearing before Workers' Compensation Judge Donald Johnson last October.

A hearing representative from Burgis' office completed a pretrial conference statement identifying the issue in dispute as being Garcia's entitlement to TTD. On the part of the form asking her to state Garcia's earnings, she accidentally put the TTD rate of $768.61, and she left the space for entering the TTD rate blank.

At the hearing, counsel for Key conceded that Silver was indeed part of the Gallagher Basset MPN and that Garcia's weekly earnings were $778.61.

Johnson then issued an award in favor of Garcia, finding Garcia was entitled to TTD benefits from June 18, 2013, through Aug. 26, 2014. Based on the parties' mutual representation that Garcia's preinjury weekly gross income was $778.61, Johnson determined that Garcia was owed $519.07 for each week of his period of disability, for a total award of $32,256.49.

After noticing the mistake regarding Garcia's earnings, Burgis filed a petition for reconsideration with the WCAB to correct the calculation of Garcia's award.

Using the TTD rate of $778.61, Burgis said, Garcia was actually owed $48,385.05. He asked the WCAB to exercise its continuing jurisdiction over the award and either amend the amount of it or grant further discovery on the issue of the calculation of Garcia's earnings.

Johnson recommended that the WCAB deny the petition though, opining that this was not a case of excusable neglect or inadvertence, but rather "the failure of a party to exercise due diligence."

He suggested that Garcia's attorney should have caught the mistake, had they adequately reviewed the minutes of the hearing.

Johnson added that he thought defense counsel had no obligation to correct the mistake, and that the mistake didn't result in the unjust enrichment of Key.

He said the concept of unjust enrichment is only triggered when a party mistakenly issues a payment they do not owe, not when the party receiving payment makes the mistake.

"(I)f it's your mistake, you get to pay for it," Johnson opined.

In February, a WCAB panel comprised of Deidra Lowe, Frank Brass and Katherine Zalewski adopted the judge's recommendation and denied relief to Garcia.

Burgis then petitioned the 5th DCA for review, and the court granted his petition last Tuesday.

The court's grant of review indicated that it is prepared to decide the matter, which is now captioned as Garcia v. WCAB (Key Energy Services), on the briefs and the administrative record.

The court ordered the WCAB to produce the record by Sept. 11.

Speaking with WorkCompCentral on Wednesday, Burgis said he was "very grateful the Court of Appeal paid attention to this," since the vast majority of writ petitions get denied.

Burgis said his hearing representative had made a simple mistake in writing the amount of TTD as Garcia's earnings on the stipulation form, and he "expected it to be easy to fix."

Indeed, the line to enter Garcia's "earnings rate" was right next to the line for the "TTD rate" on the form.

What's more, Burgis said, "everybody knew what the accurate earning rate was," so the fact that he couldn't get Garcia's award corrected was "extremely frustrating" for him.

"If workers' compensation is supposed to be a benefits delivery system," then benefits need to be "proper and accurate benefits," otherwise the system isn't living up to its purpose, he contended.

Fellow applicants' attorney Alan Gurvey of Rowen, Gurvey & Win agreed. "It's the workers' compensation system," he said, with an emphasis on "workers," so workers "should not be prejudiced and lose compensation because of a slip of the pen."

A scrivener's error as to how much a worker made is different from the failure to state an affirmative defense or request penalties, Gurvey opined, since the question of earnings is simply a factual issue.

"When you can prove what the earnings were," he said, "then absolutely an applicant should be entitled to receive his or her fair share of compensation based on those earnings."

For the 5th DCA to have to say this, seems like "a complete waste of the court's time," Gurvey said.

David Torres, a senior partner with the Employer Support Group risk management consulting firm, agreed.

"Give me a break," he exclaimed, upon being apprised of the issue being appealed. He suggested Key ought to take into consideration how much defending against an appeal is going to cost them when they're probably just going to get a decision saying "give the man his money, you idiots."

Defense attorney Tim Kinsey of Grancell, Stander, Reubens, Thomas & Kinsey said he too had the impression that the case was going to be a tough sell for Key.

Since there was no indication the parties were alleging a different earning amount at the hearing, Kinsey said, "the $778.61 amount must have been defendants’ understanding of the TTD rate."

So unless Key has some evidence to suggest Garcia's earnings were actually $778.61 a week, Kinsey said it is "going to be hard pressed to convince the Court of Appeal that the stipulation was not a mutual mistake and should be upheld."

Tara H. Morse of Mullen & Filippi represented Key in the WCAB proceedings. She declined to comment on the case since she has substituted out as counsel.

Cipolla, Calaba, Marrone & Wollman has taken over the representation of Key, but he could not be reached for comment on Thursday.

Published on 08/31/2015 by WorkCompCentral, authored by Sherri Okamoto