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California has an interesting process for its courts. Enshrined in the procedural court rules is Rule 8.1115(a) regarding precedent and stare decisis. The Common Law tradition upon which our American legal system is founded relies heavily upon stare decisis, which is merely deciding questions in litigation today consistently with prior decisions. There is a predictability and stability in the dispute process that comes from reliance upon how courts have determined similar questions previously.
Many court decisions in California are not precedent, a conclusions with which some struggle. They are decisions that cannot be cited or relied upon by parties in arguing for or against a similar outcome in their own present disputes. A recent decision of the Third District Court in a California workers' compensation case included a reminder of California's prohibition on stability and predictability:
"California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115."
In such a decision, a court is resolving some issue(s) for the parties to that particular case, but delivering no real edification to the public or to practitioners that may face some similar dispute in their future. The logic of such limitation and constraint admittedly eludes me. I find it antithetical to the foundations of our common law system and frustrating to the predictability of stare decisis.
In California Correctional Peace Officers Association Benefit Trust Fund v. Workers' Compensation Appeals Board, C093293, January 5, 2022, the Court's opinion was nonetheless instructive on several points. It reminds of the lien system in California, of the challenges of jurisdiction, of the importance of following instructions, and of the imposition of sanctions.
The facts are reasonably straightforward. The Benefit Trust Fund paid an injured worker certain benefits, and filed a lien in the workers' compensation proceeding. Essentially, it was contending that it owed benefits but that workers' compensation should be deemed the primary payer and thus the Fund should recover some of its outlay from any workers' compensation benefits eventually ordered. Interestingly, the Fund was not represented by counsel, but by a statutorily recognized "representative." That is an intriguing distinction from the Florida litigation process. In Florida, only attorneys may represent others in workers' compensation proceedings.
The injured worker in that case was troubled that the Fund sought reimbursement, and later sought sanctions against the Fund regarding its behavior in the litigation. In response, the Fund then dismissed or withdrew the lien, and in its opinion thereby deprived the Board of jurisdiction over the complaints regarding its behavior. In that allegation there is similarity to the Florida system in which jurisdiction is invoked by filing a petition for benefits. Thereafter, an injured worker may largely deprive the Office of Judges of Compensation Claims by dismissing that petition. See Polston v. Hurricane Island Outward Bound, 920 So. 2d 766 (Fla. Dist. Ct. App. 2006).
The Appeals Board in California thereafter convened multiple (4) hearings to consider the claim for sanctions, but the Fund representative did not present for any of them. The representative even wrote to the Board to explain that the Fund would not attend as it was no longer a party to the case, due to the dismissal. Thus, despite being ordered to attend, the Fund elected not to do so. The Board "ultimately affirmed the denial of costs and sanctions," but it awarded "$3,280 in attorney fees against" the Fund and the representative "for the failure to appear at the four hearings." This was calculated based upon the 8.2 hours of the injured workers' attorney's time at $400 per hour.
The Fund then sought appellate review and alleged that it was deprived of due process by the imposition of attorney fees. It complained of the method in which proceedings were held telephonically and of how the notice was provided for telephonic participation. Notably, the call-in information for the first hearing was admittedly not included in the original notice of hearing. However, the Board noted that was true for various cases in the early days of the COVID-19 pandemic. Despite those numbers not being included in the notice:
"somehow, every other single participant, for every other hearing, was able to locate the number through the DIR Newsline releases, the DIR website, calling any WCAB office, or lastly, contacting the actual WCAB office where the trial was scheduled."
Certainly, as the pandemic changed process and procedure, anyone might have struggled to adapt their practice. However, the Court opinion recognizes the parties' obligations, through various means, to remain engaged in proceedings even in the midst of a pandemic (note the Board 4 times to convene proceedings).
Rather than presuming that all proceedings would be suspended due to the pandemic, the Court suggested "One would think a simple inquiry would certainly have been prudent." In terms of due process, the Court concluded that notice of trial was sufficient. Although the attendance later evolved to telephonic, notice was notice. The general public announcement that all hearings would be telephonic was sufficient, particularly "In light of the considerable pressures placed on courts and administrative bodies caused by the COVID-19 pandemic."
Regarding the alleged evaporation or dissipation of jurisdiction upon dismissal of the lien, the Court conceded that a "General rule" supports that dismissal will deprive an adjudicative body of "jurisdiction to conduct any further proceedings as to him." Similar to Polston in Florida. However, this is not true of the jurisdiction to either award that party attorney fees or to award attorney fees against that party as regards the proceedings in that matter. To conclude otherwise, the Court explained, the dismissal could potentially be "used as a shield for a party acting in bad faith."
The decision is instructive and provides clarification. Notice is notice, and parties must thereafter make efforts to engage and adapt even as methodologies may change. Notice by public announcement may be sufficient in some circumstances, and counsel or representatives would be well served to diligently seek information and clarification. Dismissal is jurisdictional, but not in certain situations such as ordering fees related to the pre-dismissal activities. When ordered to attend a hearing, make an appearance. When objecting to jurisdiction, writing the tribunal a letter is unlikely to serve. So many interesting and useful points in the Third District's opinion.
None of them, however, might have been argued as controlling in some future situation. In California, the decision of the court controls only the current facts, the current case. There is no application of this decision to future proceedings, in fact, future parties in other cases are prohibited "from citing or relying on" the court's logical and informative decision. It is curious. In a society full of information and data, would not the public's access and resort to such a court decision be positive in any event? If not, what possible harm would result from the people being able to cite and rely on decisions made in their courts?
The Board thought so. It filed a motion with the Court and asked that the opinion be published, be precedent. Almost a month after deciding the case, WorkCompCentral reported on January 31, 2022 that the Third District had granted the "motion to publish its decision." Therefore, the court's endorsement of actual notice and due diligence and remote hearings is now subject to citation and argument in other proceedings. Of course, there may remain instances or facts in which a court may conclude otherwise. But, such informative decisions are undoubtedly of great value to those who practice before the California Board, and perhaps those who practice elsewhere.
By Judge David Langham
Courtesy of Florida Workers' Comp
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About The Author
About The Author
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Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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