Legal Question in Workers Comp in California

My uncle was injured at work and he was denied any benefits. He went to court and he lost and his lawyer did not want to appeal for him. He went on and did the process himself, he lost the appeal. I read the case opinion and I got to the conclusion that they denied him because his employer said he was injured at another job. He says he told his lawyer he could pull his employment records to show that that was the only place he was employed, but the lawyer never did. During the appeal, he included that evidence. I had an understanding that an appeal had to be on the basis that the judge did something wrong not the lawyer. What should he do now? Could he reopen the case?


Asked on 6/02/10, 12:56 am

1 Answer from Attorneys
George Shers Law Offices of Georges H. Shers

The general rule is that on appeal evidence can not be considered that was not presented at the trial level, so what ever records were submitted probably were not taken into account. Also, you are not allowed to re-litigate the same issues. Your uncle could try to file a new application and argue that the records were not available because of the error or his attorney, but it is not likely that he could succeed in getting the case re-heard. He could sue his attorney for malpractice if he can show that the results would have been different had the attorney submitted those employment records, but that would be very difficult to do.

The WCAB normally is overly pro-applicant in its decisions. I find it hard to believe that if it were merely your uncle saying he had no prior employment and the current employer saying he did that the Board would find for the employer. There was have been additional facts introduced.

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Answered on 6/02/10, 6:37 am


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