Thomas David Williams suffered an industrial injury while employed by Mac Kenzie Electric Inc., who was insured by the State Compensation Insurance Fund. In addition to insured benefits paid by SCIF, Williams pursued a Serious and Willful Misconduct claim against the employer.

On August 2, 2021, the WCJ found in relevant part that defendant “MACKENZIE ELECTRICAL INC.” is guilty of Serious and willful Misconduct thereby entitling Williams to an increase in compensation and attorneys’ fees of 15% thereon..

On reconsideration, Williams contends that the award should have specified the dollar amount of $537,449.36 pursuant to the parties’ previous stipulations. Subsequently, Williams filed an amended Petition, requesting that the award be issued against “Mac Kenzie Electric Inc.” rather than “MacKenzie Electric Inc.”

The employer contends that the WCJ failed to apply the appropriate legal standard for serious and willful misconduct; that applicant did not meet his burden to prove serious and willful misconduct by defendant; that the WCJ did not address all of the evidence in her decision.

The employer’s Petition for Reconsideration was denied, but the applicant’s was granted in the panel decision of Williams v Mac Kenzie Electric Inc – ADJ2167155 (December 2022).

This case involved the often overlooked requirement that litigants must set forth “the party’s full legal name” on the pleadings they file in cases before the WCAB.

In deciding this case, the panel pointed out that WCAB Rule 10390(a) (Cal. Code Regs., tit. 8, §10390(a)) requires that any party that appears or files a pleading before the WCAB shall set forth “the party’s full legal name on the record of proceedings, pleading, [or] document.”

Pursuant to AD Rule 10205.5 (Cal. Code Regs., tit. 8, § 10205.5), the Division of Workers’ Compensation (DWC) maintains the “official participant record” or official address record (OAR) for all cases, and all parties must ensure at all times that they are correctly identified on the OAR.

Here, based on the panel;s review of the record, it was not clear from the record whether defendant is “MacKenzie Electric, Inc.” or “Mac Kenzie Electric, Inc.”

The panel further stated that “This conflict is particularly underscored by the circumstances here where the individuals appear to use both last names interchangeably, and there is no doubt that this information is within defendant’s knowledge. Instead, as noted previously, defendant failed to respond to the WCJ’s recommendation to change its name, thereby causing further delays. Moreover, as explained above, it is defendant’s responsibility to communicate with DWC as required by AD Rule 10205.5 to correct any discrepancies in its name.“

The employer’s Petition for Reconsideration is by “MacKenzie Electric, Inc.,” “insured by State Compensation Insurance Fund” and is filed by an attorney for defendant State Compensation Fund, Marjorie A. Marenus. Throughout the Petition, defendant consistently refers to itself as “MacKenzie Electric,” and attached to the Petition is a declaration signed under penalty of perjury by “Patrick MacKenzie” and a declaration signed under penalty of perjury by “Denis MacKenzie.”3

In Exhibit R, titled as “Bill of Sale of John Deere 310D Backhoe Loader to Ed Ernst,” the bill of sale is on letterhead titled “MacKenzie Electric, Inc.” with license # 664395, the seller is listed as “Patrick MacKenzie, President” and the transferor is listed as “Patrick MacKenzie.” Yet, the California State License Board lists “Mac Kenzie Electric Inc” for license # 664395 and “Denis Anthony Mac Kenzie” and “Patrick Christopher Mac Kenzie” as personnel associated with the license. (See Evid. Code, § 452(c) [allowing judicial notice of official acts by an executive department].)

“We strongly emphasize that defendant must comply with its obligations under WCAB Rule 10390(a) and AD Rule 10205.5. More significantly, failure to provide the correct information may impede applicant’s ability to proceed against defendant under section 5806. Again, if defendant is uncooperative, the WCJ should consider whether sanctions are appropriate.”

We direct defendant’s attorney Marjorie A. Marenus and State Compensation Insurance Fund to immediately review the OAR and make any necessary changes, and to promptly notify the WCJ thereafter.

In the meantime, we will leave the award intact, but we will also defer the issue to the WCJ to determine whether the name of the defendant should be changed, and upon return, the WCJ can consider whether to hold an evidentiary hearing.