Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
WCAB No. FRE 0137292
OPINION
Before Ardaiz, P.J., Cornell, J., and Hill, J.
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board. Frank M. Brass, James C. Cuneo and Ronnie G. Caplane, Commissioners. J.A. Eckl, Workers’ Compensation Administrative Law Judge.
Deanna Priest, in propria persona, for Petitioner.
No appearance by Respondent Workers’ Compensation Appeals Board and Respondent Michael Housepian.
In propria persona, Deanna Priest petitions for a writ of review (Lab. Code, §§ 5950, 5952; Cal. Rules of Court, rule 8.494) from a split decision of the Workers’ Compensation Appeals Bd. (WCAB) refusing to reopen and recalculate an 11-year-old temporary disability award based on a mathematical error admitted by the original workers’ compensation administrative law judge (WCJ). Finding sufficient basis to support the WCAB’s decision, we must deny the petition.
Further statutory references are to the Labor Code.
BACKGROUND
On August 7, 1994, shortly after starting a new position with Michael Housepian as a gun salesperson, Priest was in an automobile accident while returning home from an out-of-town gun show. The accident led to a workers’ compensation hearing on December 16, 1996, where Priest claimed average weekly earnings of $507.70 per week. In a March 17, 1997, Opinion and Order, a WCJ explained that earnings are difficult to determine when a new employee has not yet received a paycheck, but that according to Priest’s testimony, she expected to earn $1,800 per month plus $200 per weekend gun show.
On March 17, 1997, the WCJ concluded Priest sustained injury to her psyche, back, neck, head, jaw, chest, right leg, and right knee on an industrial basis and awarded her temporary total disability “‘from August 8, 1994 to date and continuing at $338.17 per week’” based on average weekly earnings of $507.00. Housepian petitioned the WCAB for reconsideration, to which Priest answered by asserting “ ‘[t]he evidence clearly illustrates applicant has met the burden of proof establishing an average weekly wage of $507.70 per week, based upon earnings of $2,200.00 per month.’”
The question of Priest’s earnings at the time of her 1994 accident again came before the same WCJ in 2008. At a March 13, 2008, hearing, Priest testified she had anticipated working every weekend for Housepian. In an April 16, 2008, Opinion and Decision, the WCJ admitted his math was “faulty” in determining Priest’s temporary disability. The WCJ recalculated that earnings of $1,800 per month, times 12 months, divided by 52 weeks, plus $200 per weekend gun show amounted to average weekly earnings of $615. At two-thirds her average weekly earnings, the WCJ concluded Priest was entitled to $410 per week in temporary disability instead of the $338.17 previously awarded. The WCJ also explained that the record in this case had been destroyed and that, “Sometime in 2000 or before, there was an order acknowledging the error regarding earnings. I am unable to find that Order in this record.”
Housepian petitioned the WCAB for reconsideration, to which Priest, at this point unrepresented by counsel, did not respond. In a Report and Recommendation to the WCAB, the WCJ elaborated:
“Unfortunately, this file was prematurely destroyed at one point. The present file is not complete. I have a recollection that applicant raised the earnings issue around 2000 or earlier. I noted that I had made an obvious math error, and I ordered the parties to adjust the issue. As has happened many times in this case before, the issue has been passed over and forgotten only to arise again.”
The WCJ concluded:
“I did indicate that I was unsure if the injured worker was supposed to work every weekend. The real problem, however, was that my math was in error. This was pointed out shortly after the Award, and it was noted in a Minute Order, or other Order, that the question was to be adjusted. That Order is not contained in the record because the record was destroyed. I am certain that such an Order was made.”
In a split decision, two WCAB commissioners voted to grant reconsideration. Reversing the WCJ’s findings, the WCAB majority, consisting of Commissioners Frank Brass and James Cuneo, found “no adequate explanation as to why the error was not discovered before 2000, or why, eight years or more have passed between the ‘2000 or earlier’ order and the current proceedings on this issue.” The majority observed that its jurisdiction to reopen a decision for good cause lapsed on August 7, 1999, and the “WCJ’s vague recollection ‘that applicant raised the earnings issue around 2000 or earlier’ is not sufficient proof of the filing of a petition to reopen prior to August 7, 1999, so as to provide jurisdiction for the Board to amend its decision.” The majority also noted that any math error was originally that of Priest, as the record contained multiple instances where she alleged her earnings were $507.70 per month. Meanwhile dissenting commissioner Ronnie Caplane would have denied reconsideration “[g]iven the uncertainty about the history of this case, the closeness in time between the deadline for reopening and the approximate time of applicant raising the issue, and the fact that the WCJ only corrected a mathematical error .…”
DISCUSSION
Without presenting any further legal argument, Priest asks this court to grant her Petition for Writ of Review and follow the recommendation of the WCJ and dissenting Commissioner Caplane. Priest effectively requests we reinstate the WCJ’s April 16, 2008, finding that she was entitled to temporary disability of $410 per week instead of the $338.17 per week originally awarded in 1997.
The WCAB “has continuing jurisdiction over all its orders, decisions, and awards,” which it may “rescind, alter, or amend” upon a showing of “good cause.” (§ 5803.) The WCAB’s continuing jurisdiction over its awards is limited, however, in that “[n]o award of compensation shall be rescinded, altered, or amended after five years from the date of the injury except upon a petition by a party in interest filed within such five years .…” (§ 5804.) Because Priest’s industrial accident occurred on August 7, 1994, the WCAB maintained continuing jurisdiction to increase her prior temporary disability award only if a petition to reopen demonstrating good cause was timely filed no later than August 7, 1999.
Although not applicable here, the WCAB may also reopen a prior decision based on “new and further disability.” (§ 5410.)
Applying a statute of limitation to undisputed facts is a question of law subject to independent review. (Martino v. Workers’ Comp. Appeals Bd. (2002) 103 Cal.App.4th 485, 489.) Here, however, the facts are disputed as to whether Priest timely filed a prior petition to reopen, and we may not decide disputed questions of fact. (§ 5953.) Instead, we must determine whether, in view of the entire record, substantial evidence supports the WCAB’s findings. (§ 5952; Garza v. Workers’ Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317.) As an appellate court, we may not substitute our choice of the most convincing evidence for that of the WCAB. (Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 233.)
The WCAB majority noted there was no record of Priest having filed a petition to reopen for good cause prior to August 7, 1999. The WCAB explained:
“While the math error might have justified a finding of good cause, we find no record of it having been timely raised. The WCJ’s vague recollection ‘that applicant raised the earnings issue around 2000 or earlier’ is not sufficient proof of the filing of a petition to reopen prior to August 7, 1999, so as to provide jurisdiction for the Board to amend its decision. Not only is the record lacking evidence of applicant having petitioned to change the decision; in fact, it contains multiple examples, discussed above, of applicant actively asserting that her earnings were $507.70. While the WCJ essentially accepted applicant’s calculation of earnings when he found earnings of $507.00, the math error was originally applicant’s. It does not matter that the WCJ is certain that he issued an order directing the parties to adjust the issue of earnings. If a petition was not filed before August 7, 1999, he was powerless to amend the prior award. Except to the extent allowed by section 5803, the Board lacks jurisdiction to reexamine its decisions, once the period for reconsideration has passed. (See Azadigian v. Workers’ Comp. Appeals Bd. (1992) 7 Cal.App.4th 372[, 379].)”
Although, as Commissioner Caplane argues, it is unfortunate that “[t]hrough no fault of applicant, the file in this case was prematurely destroyed, eliminating a precise record of what happened when,” Priest carried the burden of demonstrating the WCAB maintained continuing jurisdiction to revise her award. (§§ 3202.5, 5705.) Priest does not point to any evidence offered to the WCAB to justify its continuing jurisdiction beyond August 7, 1999. While the WCJ referenced an order “around 2000 or earlier” asking the parties to adjust the issue of temporary disability, the WCJ never stated that a petition to reopen had been timely filed before August 7, 1999.
Given Priest’s testimony and arguments in 1996 and 1997 regarding her earnings while working for Housepian, plus the number of years that have passed since the WCJ’s original March 17, 1997 findings, we too agree with the WCAB that Priest bears at least partial responsibility for any miscalculation and that she has waived the issue. The WCAB noted that in both the 1996 Minutes of Hearing and in her subsequent Petition for Reconsideration, Housepian insisted the evidence demonstrated earnings of $507.70 at the time of the accident. “Under the doctrine of waiver, a party loses the right to appeal an issue caused by affirmative conduct or by failing to take the proper steps at trial to avoid or correct the error.” (Telles v. Workers’ Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1167.) “Similarly, under the doctrine of invited error, a party is estopped from asserting prejudicial error where his own conduct caused or induced the commission of the wrong.” (Ibid.) We therefore conclude Priest’s failure to produce evidence supporting the WCAB’s continued jurisdiction, coupled with her affirmative conduct in leading to the WCJ’s alleged miscalculations in 1997, constituted sufficient evidence and basis for the WCAB to rescind the WCJ’s amended award and reinstate a finding that she was entitled to only $338.17 per week of temporary disability.
DISPOSITION
The petition for writ of review is denied. This opinion is final forthwith as to this court.