ADJ7998608 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted to reduce attorney's fees award by $22.20; otherwise prior award affirmed

Petition for Reconsideration of April 20, 2021 Opinion and Award of Additional Attorney's Fees

This docket was decided more than once. Shown here is the latest released decision; we also hold April 20, 2021.

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.

Reconsideration / removalApplicant prevailed

The petition was granted solely to reduce the attorney's fees award by $22.20 to omit unrecoverable filing fees; all other arguments were rejected and the prior award was affirmed.

The facts that decided it

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

The Court of Appeal determined the writ of review filed by the employer had no reasonable basis.

Favours Applicant prevailed

This finding triggered entitlement to a supplementary award of attorney's fees under Labor Code section 5801.

The rules the panel named

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

Labor Code section 5801

Governs supplementary award of attorney's fees when Court of Appeal finds no reasonable basis for writ of review.

From the decision · page 1Initially, we clarify the scope of review in this matter. Under Labor Code section 5801, when the Court of Appeal determines that there was no reasonable basis for a writ of review filed by an employer, counsel for the injured employee is entitled to a supplementary award of attorney's fees, to be determined by the Appeals Board. (Lab. Code, § 5801.) In Crown Appliance v. Workers' Comp. Appeals Bd. (Wong) (2004) 115 Cal.App.4th 620, 627-628 [69 Cal.Comp.Cases 55], the Court held that a finding of no reasonable basis under section 5801 is "analogous to the lack of merit of a frivolous appeal" and that an action is frivolous "when it indisputably has no merit," i.e., "when any reasonable attorney would agree that the appeal is totally and completely without merit." (Ibid. [internal quotation marks omitted].)

Labor Code section 5813

Sanctions for bad faith tactics in relitigating merits of underlying award.

From the decision · page 2Furthermore, to dispel any possible confusion on this point, the WCJ's order played no role whatsoever in our decision as to the proper amount of fees due to applicant's attorney in this matter, which was based entirely upon our own independent consideration of the Petition, the Objection, and the record. To the extent that the Petition for Reconsideration seeks to reopen the merits of this case by arguing that the WCJ's error is evidence of bias that should cause us to retroactively rescind applicant's award of compensation, such an attempt is wholly inappropriate, both procedurally and substantively. We reject any argument that the WCJ's actions in this matter showed bias against defense counsel, much less bias sufficient to retroactively rescind the now- final award in applicant's favor. (See McEwen v. Occidental Life Ins. Co. (1916) 172 Cal. 6, 11 ["Erroneous rulings against a litigant, even when numerous and continuous, form no ground for a charge of bias or prejudice, especially when they are subject to review."].) We strongly caution defense counsel that further attempts to relitigate the merits of the underlying award in applicant's favor may constitute bad faith tactics subject to sanctions pursuant to Labor Code section 5813.

ADJ7998608 · June 25, 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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