ADJ9485144 — California WCAB decision

What the panel ordered

Petition for Reconsideration filed by Zenith Insurance Company denied; Findings and Order of March 20, 2019 affirmed.

Petition for reconsideration filed by Zenith Insurance Company challenging WCJ's Findings and Order of March 20, 2019; Appeals Board granted reconsideration and issued Decision After Reconsideration affirming WCJ's order.

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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 / venueApplicant prevailed

CIGA was never dismissed as a party defendant and has standing to seek reimbursement; Zenith conceded CIGA's right to sue for reimbursement and did not object to standing at hearing.

From the decision · page 3DISCUSSION At the outset, we observe that Zenith concedes, "CIGA may sue to obtain reimbursement for amounts it has paid for non-covered claims," citing Insurance Code section 1063.2 and Majestic Ins. Co. v. Workers' Compensation Appeals Bd. (2005) 70 Cal.Comp.Cases 1519 (writ den.). (See Petition for Reconsideration, p. 3:1-4.) However, the instant case involves exactly the circumstance that CIGA, by filing a petition for reimbursement, sued Zenith to obtain reimbursement for amounts CIGA paid to defend a non-covered claim. Since Zenith concedes that CIGA has the right to do so, it appears that Zenith is effectively waiving the point. (Lab. Code, § 5904.) For this reason, and for the additional reasons set forth below, we reject Zenith's contention that CIGA does not have "standing" to pursue reimbursement. Zenith also concedes that CIGA is a party in interest under WCAB Rule 10364,1 but Zenith claims that CIGA failed to "perfect" its interest by filing a lien. (Petition for Reconsideration, 4:25-27.) However, Zenith cites no legal authority that CIGA was obligated to file a lien in order to "perfect" its interest or to "perfect" its standing in this case. Further, in making this argument Zenith relies upon the factually incorrect premise that CIGA was dismissed as a party defendant in this matter.

The rules the panel named

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

Insurance Code section 1063.2

CIGA may sue to obtain reimbursement for amounts it has paid for non-covered claims.

Applied to reject Zenith's standing argument and affirm CIGA's right to reimbursement.

From the decision · page 3DISCUSSION At the outset, we observe that Zenith concedes, "CIGA may sue to obtain reimbursement for amounts it has paid for non-covered claims," citing Insurance Code section 1063.2 and Majestic Ins. Co. v. Workers' Compensation Appeals Bd. (2005) 70 Cal.Comp.Cases 1519 (writ den.). (See Petition for Reconsideration, p. 3:1-4.) However, the instant case involves exactly the circumstance that CIGA, by filing a petition for reimbursement, sued Zenith to obtain reimbursement for amounts CIGA paid to defend a non-covered claim. Since Zenith concedes that CIGA has the right to do so, it appears that Zenith is effectively waiving the point. (Lab. Code, § 5904.) For this reason, and for the additional reasons set forth below, we reject Zenith's contention that CIGA does not have "standing" to pursue reimbursement. Zenith also concedes that CIGA is a party in interest under WCAB Rule 10364,1 but Zenith claims that CIGA failed to "perfect" its interest by filing a lien. (Petition for Reconsideration, 4:25-27.) However, Zenith cites no legal authority that CIGA was obligated to file a lien in order to "perfect" its interest or to "perfect" its standing in this case. Further, in making this argument Zenith relies upon the factually incorrect premise that CIGA was dismissed as a party defendant in this matter.

Truck Ins. Exchange v. Workers' Comp. Appeals Bd. (Kwok) (2016) 2 Cal.App.5th 394

The Appeals Board has broad equitable powers with respect to matters within its jurisdiction.

Applied to uphold equitable reimbursement to CIGA by Zenith.

From the decision · page 5Exchange v. Workers' Comp. Appeals Bd. (Kwok) (2016) 2 Cal.App.5th 394, 401 [81 Cal.Comp.Cases 685], "[t]he appeals board has broad equitable powers with respect to matters within its jurisdiction." (Citing Dyer v. Workers' Comp. Appeals Bd. (1994) 22 Cal.App.4th 1376, 1382 [59 Cal.Comp.Cases 96].)

ADJ9485144 · May 19, 2021

What the panel ordered

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