Yesterday we reported that the Petition for Review of the WCAB decision in Robert Gravlin’s claim against the City of Vista which was filed by Gravlin on May 10, 2017 in the 4th Appellate District, Division 1, was dismissed on June 6.
The dispute at trial was to resolve issues raised by applicant’s contention that one cumulative trauma case is properly applied to both the admitted injury to the skin and to the injury to the heart, and defendant’s contention that there were separate dates of injury for the injury to the heart and for the injury to the skin, and “Anti-Merger,” presumably in reference to the provisions of section 3208.2.
Reconsideration was granted on March 27, 2017, and the WCJ’s decision was rescinded in the split panel decision of Gravlin v City of Vista. New findings were entered that applicant sustained two separate cumulative injuries, one to the heart/ hypertension and the other to his skin. The different dates of injury support separate awards of permanent disability for those separate conditions, which resulted in a lower financial award for Gravlin.
The Order dismissing his Petition in the Court of Appeal seemed like the end of the road for his appeal.
But further information has surfaced (thanks to one of our readers) showing that this is not the case.
The Labor Code provides that the first step in the appeal process is to file a Petition for Reconsideration when a litigant becomes an aggrieved party “for the first time.”
In this case Mr. Gravlin was not an aggrieved party when the WCJ ruled in his favor, and did not become aggrieved until March 27, 2017 when the split WCAB panel reversed the decision which was previously in his favor. The correct appeal procedure on that day was for Mr. Gravlin to file his own Petition for Reconsideration since he was then an aggrieved party for the first time.
Instead he filed a Petition for Review with the Court of Appeal.
Apparently in response to his pending case in the Court of Appeal, the WCAB issued an Order Granting Reconsideration on Board Motion on May 26, 2017 “in order to further study the legal and factual issues” he raised in the Court of Appeal.
The WCAB notified the Court of Appeal of its Order, and requested that the pending petition be dismissed. The Clerk of the Court notified the parties of this request by letter, and it appears he agreed to the dismissal.
Mr. Gravlin’s case is now back at the WCAB level for further review on Reconsideration. It will likely remain in this process for the next several months. Following the next decision of the WCAB, the aggrieved party – whomever it might be at that point – will likely proceed back to the Court of Appeal asking it to hear the case.
It can be assumed that a final determination of the apportionment issue will not be resolved until 2018, or perhaps later.