Becerra v. Eastside Reservoir Project/Advanco Constructors

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WORKERS' COMPENSATION APPEALS BOARD 1 STATE OF CALIFORNIA 2 3 4 RAMON BECERRA, Case No. AHM 51304 Applicant, 5 vs. 6 7 8 ORDER VACATING ORDER GRANTING RECONSIDERATION, ORDER DISMISSING PETITION FOR RECONSIDERATION, ORDER GRANTING REMOVAL, AND DECISION AFTER REMOVAL EASTSIDE RESERVOIR PROJECT/ ADVANCO CONSTRUCTORS; HARTFORD ACCIDENT & INDEMNITY COMPANY, 9 Defendants. 10 On May 2, 1996, Applicant filed an Application for 11 Adjudication which alleged that he suffered an injury to multiple 12 parts of his body including his head, spine, and extremities on 13 January 26, 1996, when a beam fell on his head in the course of 14 his employment as a laborer. 15 filed a petition for dismissal of the Application, asserting that 16 applicant's 17 resolution petition injury process for is in dismissal On October 24, 1996, defendants covered Labor was by the Code section not granted, alternative 3201.5. dispute When defendants their filed a 18 Petition for Reconsideration. 19 On March 21, 1997, due to the requirement that the Appeals Board act within sixty days (Labor 20 Code section 5909), we granted reconsideration in order to allow 21 sufficient opportunity to study the issues in this case. 22 completed our study and, as explained below, we will vacate the 23 order granting reconsideration, grant removal, and dismiss the 24 25 26 Application. We have 1 2 Defendants filed a petition for reconsideration arguing that the workers' compensation referee (WCR) erred in refusing to grant their petition for dismissal of the Application. Pursuant to Labor directly 3 4 Code section 5900, "Any person aggrieved or indirectly by any final order, decision, or award made and filed 5 by the appeals board or a workers' compensation judge . . . may 6 petition the board for reconsideration . . ." 7 But a refusal to dismiss an Application is not a final order or 8 decision because it does not determine a substantive right or 9 liability of anyone involved in the case. Hospital v. Workers' Compensation [Emphasis added.] See Kaiser Foundation Appeals Board (1978) 82 10 Cal.App.3d 39, 43 Cal.Comp.Cases 661. 11 Therefore, we will vacate our order granting reconsideration and dismiss the petition for 12 reconsideration. 13 will grant removal and dismiss the Application. For the reasons discussed below, however, we 14 Labor Code section 3201.5 provides that certain employers and 15 unions may provide for and participate in an alternative dispute 16 resolution system. mediation and Under this system, disputes may be resolved by arbitration as established in the collective 17 bargaining agreement. 18 19 The decision of the arbitrator is subject to review by the Appeals Board through reconsideration proceedings in the same manner as a decision of a WCR. 20 In this case, defendants filed their petition for dismissal 21 of the Application because applicant's injury is covered by the 22 alternative 23 3201.5. dispute resolution process Labor Code section Applicant concedes that section 3201.5 is applicable to his injury. We have concluded that it is now appropriate to grant 24 25 - 2 26 in 1 2 removal in this case due to the recent enactment of section 3201.5 and in order that cases such as this one arising under section 3201.5 are handled consistently. 3 In 4 assert arguing that for the dismissal Appeals Board of the Application, lacks jurisdiction defendants over cases 5 covered by section 3201.5. 6 3201.5(a)(1) provides for Appeals Board review of decisions of 7 arbitrators. 8 had jurisdiction.1 9 That assertion is incorrect: section This would not be possible unless the Appeals Board The issue in this case involves the proper procedure to follow in cases arising under section 3201.5. Under the conventional system, an Application is generally 10 needed to initiate a case before the Workers' Compensation Appeals 11 Board. After the Application is filed, a Declaration of Readiness 12 initiates proceedings before a WCR, and a party dissatisfied with 13 the 14 reconsideration with the Appeals Board. 15 system, the Appeals Board does not ordinarily become involved 16 WCR's until a decision petition may for seek review by reconsideration filing a petition for Under the alternative from the arbitrator's decision is filed in accordance with section 10865 of the Rules of 17 Practice and Procedure (Cal. Code Regs., tit. 8, section 10865.) 18 It is premature to file either an Application or a petition for 19 reconsideration since no arbitrator's decision has been issued in 20 this case. Applicant objected to the motion to dismiss the Application 21 22 23 24 An Application is neither necessary nor required. on the ground that an Application necessary to confer jurisdiction on the Appeals Board in the event that he wanted to 1See also Labor Code Section 5300 regarding the scope of the Board's jurisdiction. 25 - 3 26 is 1 2 file a petition for reconsideration of the arbitrator's decision or in the event that there was a violation of section 3201.5(b). However, jurisdiction is conferred on the Appeals Board by section 3 3201.5 and all parties preserve their rights by following the 4 alternative system's procedures, not by the filing of an 5 Application. 6 and other issues raised by the parties may be resolved by the 7 Appeals Board in San Francisco upon review after a petition for 8 reconsideration has been filed. 9 An allegation of a violation of section 3201.5(b) Thus, in this case the filing of an Application is not necessary or required so defendants' motion to dismiss the Application should be granted. 10 For the foregoing reasons, 11 IT IS ORDERED that the Order Granting Reconsideration be 12 VACATED and that the defendants' petition for reconsideration be 13 DISMISSED. 14 /// 15 /// 16 /// /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// /// 24 25 - 4 26 1 /// IT IS FURTHER ORDERED that Removal be GRANTED and, as the 2 Decision After Removal of the Workers' Compensation Appeals Board, 3 that 4 the Application for Adjudication filed May 7 /s/ ROBERT N. RUGGLES 8 9 I CONCUR, 10 /s/ J. WIEGAND 12 13 /s/ ARLENE N. HEATH 15 16 DATED AND FILED IN SAN FRANCISCO, CALIFORNIA JULY 17, 1997 17 SERVICE BY MAIL ON SAID DATE TO ALL PARTIES LISTED 18 ON THE OFFICIAL ADDRESS RECORD 19 20 21 22 23 24 25 - 5 26 be WORKERS' COMPENSATION APPEALS BOARD 6 14 1996 DISMISSED. 5 11 2,

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