Shahin Motallebi, vs. Astro Business Solutions, ICS.; Canon USA; Yasuda Fire & Marine Insurance.

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WORKERS' COMPENSATION APPEALS BOARD 1 2 STATE OF CALIFORNIA 3 4 Case No. VNO 368013; VNO 368014; VNO 368015; VNO 368016; VNO 368017; VNO 368018 SHAHIN MOTALLEBI, 5 Applicant, 6 vs. 7 8 9 OPINION AND DECISION AFTER RECONSIDERATION ASTRO BUSINESS SOLUTIONS, INC.; CANON USA; YASUDA FIRE & MARINE INSURANCE, Defendant(s). 10 11 12 The appeals board granted reconsideration to enable us to 13 consider the facts and law of this case. 14 after reconsideration. 15 This is our decision In this case, we find that the Workers’ Compensation Appeals 16 Board 17 applicant’s liability for repayment of unemployment compensation 18 disability (UCD) benefits that were received from the Employment 19 Development Department (EDD), if the following conditions exist: 20 (1) EDD initially determines that the applicant is not entitled to 21 UCD benefits; (2) EDD enters into an agreement with the applicant 22 to continue benefits during the appeal process, with the further 23 agreement that the applicant will repay the continued benefits if 24 the appeal is unsuccessful; (3) EDD’s determination is upheld by 25 the California Unemployment Insurance Appeals Board (CUIAB); and 26 (4) EDD has not filed a lien claim for the period of continued 27 benefits. (WCAB) does not have jurisdiction to determine an 1 Applicant, Shahin Montallebi, sought reconsideration of the 2 Findings of Fact issued by a workers’ compensation administrative 3 law judge (WCJ) on December 11, 2002, in which the WCJ found that 4 the 5 liability for repayment of UCD benefits that he received from 6 EDD during the period from May 8, 1998 to September 9, 1998. 7 The 8 repayment of UCD benefits by either the settlement of its lien 9 claim 10 compromise and release WCAB WCJ does not further on June have found 4, jurisdiction that 2001, or EDD by agreement is its to not determine estopped failure between to applicant’s from object seeking to the the parties. 11 Applicant contends (1) that the WCJ failed to consider the 12 WCAB’s vesting of full power, authority, and jurisdiction which 13 arose when EDD filed its Notice of Lien Claim; (2) that the WCJ’s 14 finding that the matter was res judicata after proceedings before 15 the California Unemployment Insurance Appeals Board (CUIAB) is not 16 justified because EDD provided no evidence that applicant was ever 17 served 18 (3) that the WCJ failed to address the elements of estoppel; 19 (4) 20 repayment of UCD benefits is not justified because the compromise 21 and release provided that EDD’s lien and “bills” were part of the 22 agreement; and (5) that the WCJ failed to consider whether the 23 benefits were 24 and recovery 25 EDD has filed an answer to the petition for reconsideration. 26 27 with that the the reasons finding received would be that supporting EDD is not the judge’s estopped decision; from seeking without fault on the part of applicant against equity and good conscience. Applicant claimed to have sustained specific and cumulative industrial injuries to the back, respiratory system, and other MOTALLEBI, SHAHIN 2 1 body parts. 2 Compromise and Release (OACR) issued by the WCJ on June 4, 2001, 3 approving 4 payment of $30,000.00. Defendant further agreed to pay, adjust, 5 or 6 claim. the litigate EDD 7 His parties’ all paid claims were resolved agreement to by an resolve Order the Approving matter by outstanding lien claims, including EDD’s lien applicant UCD benefits from February 24, 1998 8 through 9 the 10 September 10, 1998 to October 14, 1998. EDD did not file a lien 11 claim for the period of May 8, 1998 to September 9, 1998, the 12 period of the CUIAB appeal. 13 was settled by defendant on June 4, 2001, the same day as the OACR 14 was issued. 15 UCD benefits paid during the period for which no lien claim was 16 filed. periods The 17 October 14, 1998. EDD filed a WCAB lien claim only for of February 24, 1998 to May 7, 1998, and The workers’ compensation lien claim EDD thereafter sought recovery from applicant of the proceedings before EDD were independent of the WCAB 18 proceedings leading to the OACR. 19 having determined that applicant was ineligible for UCD benefits, 20 sent applicant a “Notice of Right to Continue Disability Benefits 21 Pending Appeal.” (Exh. AA.) 22 receiving 23 marking the paragraph, which stated: benefits, by On May 22, 1998, EDD, apparently Applicant elected to continue signing and returning the notice after 24 25 26 27 Neither the original determination nor the CUIAB determination on appeal is in the record before us on reconsideration. At the hearing of June 18, 2002, the parties stipulated that there was a decision from the CUIAB denying applicant UCD benefits for the period of May 8, 1998 to September 9, 1998. (Minutes of Hearing and Summary of Evidence, June 18, 2002, p.2.) 1 MOTALLEBI, SHAHIN 1 3 1 “I want the Department to pay me disability benefits until the decision on my appeal. To receive these benefits, I understand that I must continue to file the continued claims forwarded to me by the Department and otherwise be eligible to receive benefits. I also understand that if the decision on the appeal is against me, I may be required to repay such benefits, unless it is found I received the overpayment without fault on my part, and it would be against equity and good conscience to require repayment.” 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 On September 18, 1998, CUIAB issued a decision applicant UCD benefits for the period from May 8, 1998 through September 9, 1998. Thereafter, EDD paid additional UCD benefits for the period from September 10, 1998 through October 14, 1998. Applicant did not further appeal the CUIAB decision. (Exh. BB.) On September 20, 2001, EDD sent applicant a letter, stating in part: “EDD did settle the EDD lien totaling $6144.00 for $3,962.29 for the period 2/24/98 - 5/7/98 only. 17 18 19 “Although you have not specifically inquired, it would appear that your interest in this matter may relate to your own obligation to EDD for the period 5/8/98 - 9/9/98. 20 21 22 23 24 25 26 denying “You still have an outstanding bill due to EDD of $4,742.00. Your initial billing was $6,000.00 (toward which you have made payments totaling $1,258.00), based on your signed agreement to reimburse EDD to [sic] payments advanced during your appeal if the appeals judge agreed with the IME doctor to which EDD sent you. This amount was never included in the lien on your workers’ compensation case as it was previously litigated via the appeals judge with a finding made in favor of EDD.” (Exh. 3.) 27 MOTALLEBI, SHAHIN 4 1 On November 13, 2001, applicant filed a Declaration of 2 Readiness to Proceed (DOR), stating that he was “unable to resolve 3 dispute with EDD.” 4 The matter was heard on June 18, 2002 and November 7, 2002. 5 Applicant and EDD’s statewide manager of its workers’ compensation 6 unit testified, and various documents were admitted into evidence, 7 after which the case was submitted for decision. 8 On December 11, 2002, the WCJ issued the Findings of Fact, 9 finding that the WCAB does not have jurisdiction to determine 10 applicant’s 11 received 12 September 9, 1998. 13 from seeking repayment of UCD benefits by either the settlement of 14 its lien claim on June 4, 2001, or by its failure to object to the 15 compromise and release agreement between the parties. from After 16 liability EDD for during repayment the of period UCD from benefits that he May 1998 to 8, The WCJ further found that EDD is not estopped reviewing the record of this matter, we see no 17 error in the WCJ’s findings. Therefore, as our decision after 18 reconsideration, we will affirm the Findings of Fact. 19 this conclusion for the following reasons. We reach EDD and CUIAB are statewide administrative agencies created 20 21 by 22 Insurance Code. 23 payable to individuals who are deemed disabled on any day when a 24 physical or mental condition makes the person unable to perform 25 his or her regular or customary work, (Unemp. Ins. Code §§2625, 26 2626, 27 statute; 2627), their jurisdiction arises under (Unemp. Ins. Code §§301, 401.) and when he or she is not the Unemployment UCD benefits are receiving temporary disability indemnity under workers’ compensation law (Unemp. Ins. MOTALLEBI, SHAHIN 5 1 Code. §2629). 2 reasonable medical examinations for the purpose of determining 3 disability. (Unemp. Ins. Code §2627(c).) 4 injured worker is receiving UCD benefits, EDD may challenge the 5 workers’ continuing entitlement to such benefits. 6 is found to be ineligible for further UCD benefits, the worker and 7 EDD may enter into an agreement that EDD will continue to pay UCD 8 benefits during the period when an appeal is pending before CUIAB. 9 The agreement provides for acknowledgement by the worker that he 10 may be liable for repayment of the overpayment if he does not 11 prevail 12 A person who is overpaid any amount as benefits is liable for the 13 amount overpaid, unless the overpayment was not due to fraud, 14 misrepresentation, or willful 15 and unless “the overpayment was received without fault on the part 16 of the recipient and its recovery would be against equity and good 17 conscience.” (Unemp. Ins. Code §2735.) 18 on Appeals A disabled individual may be required to submit to appeal. of EDD (See, e.g., EDD In a case where an Form DE 6315D, Exh. AA.) nondisclosure determinations If the worker by the recipient, concerning eligibility or 19 overpayment are heard by a CUIAB administrative law judge (ALJ). 20 (Unemp. Ins. Code §§404, 1377.) 21 if it is not appealed within 90 days. 22 If the ALJ upholds the determination that the worker was not 23 eligible for UCD benefits and that the notice of overpayment is 24 proper, 25 (Unemp. Ins. Code §1379.) 26 27 then EDD may proceed The ALJ’s decision becomes final to (Unemp. Ins. Code §1241.) recover the overpayment. The WCAB exercises the judicial powers vested in it by the Labor Code, and MOTALLEBI, SHAHIN has the authority 6 to try and make final 1 determinations of these matters. 2 proceedings for the recovery of workers’ compensation; for the 3 enforcement against the employer or an insurer of any liability 4 for compensation imposed upon the employer by Division 4 of the 5 Labor 6 dependency and of the persons entitled to benefits under workers’ 7 compensation 8 dependents or other persons; and for the determination of any 9 other 10 Division 11 including the administrative 12 (Lab. Code §§111, 5300, 5301.) Code; for the law and matter, 4 The WCAB has jurisdiction over determination the distribution jurisdiction in of the over questions of compensation which Division of director is Workers’ and concerning the among vested by Compensation, appeals board. The WCAB does not have jurisdiction over proceedings before 13 14 and decisions 15 proceedings arise under the Unemployment Insurance Code. 16 EDD 17 proceedings before the WCAB to recover EDD’s benefit payments for 18 periods 19 compensation benefits. (Lab. Code §§4903, 4904; Cal. Code Regs., 20 tit. 8, §10772.) may file when made a by lien an either claim EDD to applicant or invoke receives CUIAB WCAB because those However, jurisdiction concurrent in workers’ In the present case, EDD filed a lien claim for UCD benefits 21 22 paid 23 February 24, 1998 to May 7, 1998. EDD settled this lien claim 24 with defendant at that 25 The 26 mentioned in the lien claim, 27 from period the OACR. September of 10, the extended 1998 same to October time benefits during the 14, the the compromise 1998, and from OACR was issued. appeal and was release, not or Therefore, we see no basis for concluding that EDD is MOTALLEBI, SHAHIN 7 1 estopped by the settlement agreement from pursuing its recovery of 2 UCD benefits. By agreement between EDD and applicant, his UCD benefits were 3 4 extended for 5 September 9, 1998, after EDD initially determined that applicant 6 was 7 decided adversely to him. not the medically period from eligible. May 8, Applicant’s 1998 appeal to through CUIAB was Review of EDD and CUIAB actions or decisions is not within 8 9 the jurisdiction of the WCAB. 10 arose in the agreement between him and EDD. 11 file a lien 12 no issues related to that period were properly before the WCAB. 13 The 14 benefits during 15 The determination became a final decision and EDD could proceed to 16 recover its provisionally paid benefits. 17 jurisdiction to consider applicant’s liability for the benefits. 18 CUIAB claim for determination the Applicant’s liability for repayment the period that period of EDD was Because EDD did not benefit was not continuation, not liable for appealed by applicant. The WCAB does not have Applicant contends that the WCJ should have undertaken an 19 inquiry 20 without fault on the part of applicant and their recovery would 21 be against equity and good conscience, as urged by applicant. 22 This issue arises under Unemployment Insurance Code 23 supra; it is not within the WCAB’s jurisdiction, and is properly 24 heard 25 contention that 26 incomplete is 27 to in determine an appeal the whether of the CUIAB properly the CUIAB ALJ’s UCD benefits decision. decision attacked by an Unemployment Insurance Code section 2737. MOTALLEBI, SHAHIN 8 were received section 2735, Similarly, was appeal the inadequate or pursuant to Review of appeals from 1 overpayment determinations are made by 2 CUIAB pursuant to Unemployment Insurance Code section 2738. In summary, EDD determined that applicant was not eligible 3 4 for UCD benefits 5 September 9, 1998. 6 to repay continued UCD benefits if he did not succeed on appeal 7 before CUIAB. 8 not eligible for UCD benefits during the period. 9 a 10 the WCAB does not have jurisdiction to enquire into the repayment 11 agreement or EDD’s enforcement of it. lien note the period from May 8, 1998 to Applicant entered into an agreement with EDD CUIAB made a final determination that applicant was claim We 12 during for that, this in period. this Under case, EDD did not file these the WCAB circumstances, does not have 13 jurisdiction to hear and decide this issue. 14 not, and will not, consider the further issues of whether the 15 doctrines of collateral estoppel and res judicata are applicable 16 to the CUIAB determination in this case. However, in a different 17 case, have 18 determination that the applicant is liable for UCD payments made 19 during an appeal period, and that the applicant later comes before 20 the WCAB to litigate the issue of temporary disability during the 21 disputed 22 proceedings. If the WCJ finds, contrary to the EDD determination, 23 that applicant 24 then 25 repayment agreement: from applicant under the agreement and from 26 the employer pursuant to the WCJ’s finding. 27 it EDD is possible period would without was have that EDD the WCJ’s temporarily two sources for proceeded knowledge disabled §1379; Lab. Code §§4903(f), 4904.) MOTALLEBI, SHAHIN may Therefore, we need of during recovery the the of to it a EDD period, benefit (Unemp. Ins. Code If EDD sought recovery of its 9 1 UCD payments in proceedings before the WCAB, then the issues of 2 collateral estoppel or res judicata could be addressed by the WCJ. 3 Finding no error in the WCJ’s decision that the WCAB does 4 not have jurisdiction to determine applicant’s liability for 5 repayment, as our decision after reconsideration, we will affirm 6 the WCJ’s decision. 7 For the foregoing reasons, 8 IT IS ORDERED, as the Board’s decision after reconsideration, 9 that the Findings of Fact issued December 11, 2002, is AFFIRMED. 10 WORKERS' COMPENSATION APPEALS BOARD 11 12 13 /s/ Merle C. Rabine___________________ 14 15 I CONCUR, 16 17 /s/ Frank M. Brass__________ 18 19 20 /s/ Janice J. Murray________ 21 22 23 24 25 26 DATED AND FILED IN SAN FRANCISCO, CALIFORNIA 3/18/03 SERVICE BY MAIL ON SAID DATE TO ALL PARTIES LISTED ON THE OFFICIAL ADDRESS RECORD, EXCEPT LIEN CLAIMANTS BUT INCLUDING EMPLOYMENT DEVELOPMENT DEPARTMENT AND STAFF COUNSEL CHIAN HE. csl 27 MOTALLEBI, SHAHIN 10