SAN DIEGO UNIFIED SCHOOL DISTRICT v. WORKERS COMPENSATION APPEALS BOARD (1996)

Petition for writ of review after reconsideration denied by Workers' Compensation Review Board. Donald M. Clarke, Judge. The order is affirmed.

Petitioner San Diego Unified School District (District) seeks review of a Workers' Compensation Appeals Board (WCAB) order reinstating the disability claim of Faye E. Hayslett (Hayslett) following its order dismissing her case for lack of prosecution. For the following reasons we determine the WCAB order of reinstatement was authorized by the provisions of Labor Code1 section 5803.

I

Hayslett claimed a stress-related injury resulting from her employment as a child development teacher occurring between September 1988 and June 1989. District denied her claim and provided no benefits. Hayslett filed her claim in pro. per. in February 1990; she substituted out in favor of attorney F. James Bear on June 15, 1990; substituted herself in place of Bear on December 28, 1990; was later represented by an attorney group known as Workers' Compensation Associates (with appearances at various times by Stephen McLaughlin and Deborah McLaughlin); and substituted the McLaughlins with attorney Donald A. Hon on October 16, 1992. Hon continued as counsel of record until 10 months after the order of dismissal became final, at which time Hayslett formally dismissed him. Hayslett has served as her own attorney since that time.

At a settlement conference on June 22, 1993, the Workers' Compensation Judge (WCJ) approved an agreement reached by the parties' attorneys in which Hayslett would receive a sum pursuant to a compromise and release to be submitted within two weeks from that date. At that time the case was taken off calendar. Two months later, District had the matter placed back on calendar for trial because Hayslett's attorney neither returned the settlement documents nor responded to repeated inquiries from District's counsel. Copies of correspondence from Hayslett to Attorney Hon shows that Hon did communicate with Hayslett concerning the compromise and release. Her letter of July 22, 1993 asks specific questions and indicates “I will be better prepared to make a right decision when I meet with you.” Inexplicably, Hon failed to communicate with the District's attorney as to the status of his contact with Hayslett, and the record is silent as to whether Hon ever responded to Hayslett's letter.

The matter was set for hearing January 4, 1994 by an order of November 10, 1993; notice was served only on Hayslett's attorney, who appeared on January 4 without her. Upon Hon's representation his office had notified Hayslett of the hearing, the WCJ issued an order of dismissal to become final 15 days from the date of service unless good cause to the contrary was shown in writing and filed with the San Diego office of the Board within that time. Service was made by mail on Hayslett and on her attorney on January 5, 1994. The order became final January 25, 1994 (taking into consideration the additional days granted for service by mail) and an order of dismissal was entered January 26, 1994.

The Workers' Compensation Office received Hayslett's letter of January 26, 1994, on January 27, in which she requested a hearing but made no particular reference to the dismissal order. It did refer to her need to receive a notice of the hearing and states, “I know all of this hinge [sic} on whether I showed good cause in writing on my letter of January 4, 1994.” In a letter of February 16, 1994, Hayslett inquired of the WCJ whether she had shown good cause in writing by her letter of “1-14-94.” These, and other correspondence, were not noticed by the WCJ until he reviewed the case file on or about August 7, 1995, more than a year and one-half after the dismissal. He promptly calendared a hearing to consider whether Hayslett had filed a timely objection to the order of dismissal and, if so, whether she had established good cause to proceed on her claim.

At the hearing on December 26, 1995, the court considered the foregoing issues as well as whether it had jurisdiction to hear the matter since more than five years from the date of injury and more than one year from the date of the last benefits furnished had expired.

After Hayslett testified she was not aware of the January 4, 1994 hearing date, she produced a copy of a letter dated January 14, 1994 which contains a notation it was served by mail on January 20, 1994. This letter explains why she did not appear at the January 4, 1994 hearing. The original letter was never received by the WCJ, and its contents were first presented in a copy given to the Board on November 7, 1994, although her letter of January 26, 1994 alludes to her having written a prior letter.

Following the hearing, the WCJ found Hayslett's objection to the dismissal was not timely. However, he deemed her January 26, 1994 letter to be a timely petition to reopen the dismissal order because it was filed within five years from the date of the injury. He construed the letter as setting forth good cause in that it demonstrated Hayslett's intention to continue prosecuting her claim. Therefore, the WCJ concluded, “Accordingly, it is considered equitable to let her have a trial on the merits rather than terminate the claim on a procedural basis.” The WCJ denied reconsideration, finding it equitable to reinstate Hayslett's claim “pursuant to [Labor Code] section 5803.” The WCAB denied reconsideration.

II

The District contends the WCJ's order was unauthorized, citing the holding in Nolan v. Workers' Comp. Appeals Bd. (1977) 70 Cal.App.3d 122. District predicates its argument on the judge's reference to his construing Hayslett's January 26, 1994 letter as a “petition to reopen.” In Nolan, the court stated the proposition that a “petition to reopen,” following a dismissal for want of prosecution in a case where no award had previously been adjudicated nor benefits furnished, was to be treated as if the applicant was filing a new application. It pointed out that, technically, “petitions to reopen” authorized by statute are those referred to in section 5410, which permits the judge to reopen a closed case upon a petition filed within five years to determine whether the applicant was entitled to additional benefits based upon new or further disability arising after the initial adjudication. In Nolan, as here, the applicant's case had been dismissed for lack of prosecution without any award or adjudication on its merits. Unlike Hayslett's scenario, however, Nolan's petition to reopen was filed 19 months after the case was dismissed and more than five years after he last received any benefit so that it was barred by the five-year statute of limitations on the continuing jurisdiction of the Board to amend, rescind or alter its earlier order. (See e.g., §§ 5803, 5804.)

The five-year limitation in section 5804 on the power of the WCJ to take action to rescind, alter or amend a previous order pursuant to the authority of section 5803 does not apply when parties file a petition seeking relief within five years. Hayslett's January 26, 1994 letter was filed within that time. Unlike Nolan, the WCJ here treated Hayslett's January 26, 1994 letter as a request to reopen the dismissal order and found good cause to reinstate her claim. Thus, the practical effect of the judge's ruling was that he considered Hayslett's correspondence as her request he reconsider his order of dismissal pursuant to his discretionary authority under section 5803. The WCJ's characterization of this as a “petition to reopen” is modified by its reference to the specific dismissal order, and the action taken is the equivalent of his rescinding the dismissed order, which in turn automatically reinstated Hayslett's claim at the procedural stage existing at the time of the earlier order. This is not a case like that in Nolan, where the court had lost jurisdiction to grant relief under section 5803 because of the five-year time bar in section 5804, and we therefore find the analysis in that case inapposite to the facts we address.

A thorough review of the record in this case, and the myriad of documents submitted by the pro. per. applicant (many of which are legally irrelevant), shows the WCJ correctly described this as a case which should be adjudicated on the merits, and one in which the equities mandate the relief granted in light of the purposes of the Workers' Compensation scheme. (§§ 3201, 3202.)

DISPOSITION

The order is affirmed.

FOOTNOTES

FN1. All statutory references are to the Labor Code unless otherwise stated..  FN1. All statutory references are to the Labor Code unless otherwise stated.

WORK, Acting Presiding Justice.

BENKE and HALLER, JJ., concur.