California Correctional Peace Officers Association Benefit Trust Fund (CCPOA) paid money pursuant to its disability policy to real party in interest David Martin Jr., a CCPOA member, after he filed a workers’ compensation claim for injuries sustained while working as a correctional officer.

CCPOA subsequently filed a lien against the prospective workers’ compensation award for $44,120.60, the sum it paid. It was represented in the workers’ compensation proceedings by petitioner Dan Escamilla, a non-attorney hearing representative.

After Martin’s attorney petitioned for costs and sanctions against CCPOA and Escamilla for alleged misbehavior during proceedings on Martin’s claim, CCPOA withdrew the lien.

At one point Escamilla sent a letter to the WCJ acknowledging receipt of the notice of one of the subsequent hearings, claiming he and CCPOA were not obligated to attend any hearings on the matter after CCPOA withdrew its lien on July 31, 3018. In total he failed to appear at four hearings on the petition for costs and sanctions.

After two petitions for reconsideration and removal, among the WCAB’s findings was that withdrawal of the lien did not deprive the WCJ of jurisdiction to determine whether sanctions should be imposed for Escamilla’s actions during the pendency of the lien, and he therefore was not excused from appearing at proceedings on the sanctions issue held after the lien was withdrawn.

The WCAB ultimately affirmed the denial of costs and sanctions, it affirmed an award of $3,280 in attorney fees (8.2 hours at $400 per hour) against CCPOA and Escamilla for the failure to appear at the four hearings.

CCPOA filed a petition for writ of review, asserting the failure to notify them that a hearing held subsequent to the COVID-19 pandemic was to be held telephonically was a deprivation of due process, failure to appear following the withdrawal of the lien was not sanctionable bad faith, and attorney fees are not permitted for an attorney expending time litigating on his or her own behalf.

The Court of Appeal affirmed the sanctions in the unpublished case of Cal. Correctional Peace Officers Assn. etc. v. Workers’ Comp. Appeals Bd.

Although there is no record of the actual notice of the June 22, 2020 hearing given to the parties, petitioners do not claim that no notice was given, claiming instead there was only no notice that the hearing would be telephonic rather than suspended due to the COVID-19 pandemic.

Both the WCJ and the WCAB found that all members of the workers’ compensation legal community received notice that hearings would be held telephonically due to the COVID-19 pandemic, and that representatives should have, and, with the exception of Escamilla, did in fact determine how to attend hearing telephonically.

“In light of the considerable pressures placed on courts and administrative bodies caused by the COVID-19 pandemic, the general notice that hearings would be held telephonically was sufficient to place petitioners on notice that the June 22, 2020 hearing would be held in this manner, and that they had a duty to determine how to make this appearance. Due process requires no more, and we reject petitioners’ claim to the contrary.”

The opinion concluded “there was adequate notice of the one hearing in question, withdrawal of the lien did not deprive WCAB of jurisdiction to determine the petition for costs and sanctions, and the contention regarding attorney fees for work on behalf of the attorney is not properly before us, as it was determined by WCAB in a previous proceeding.”