On reconsideration, defendant contended the WCJ's decisions contained clerical errors, specifically; defendant contended it was entitled to a credit of $13,113.36 in ADJ2073289 and not $13,113.13. Defendant pointed to the Minutes of Hearing and Summary of Evidence (MOH/SOE) as well as evidence which showed that the actual amount of the permanent disability indemnity advanced in ADJ2667420 was $16,473.36 therefore creating an overpayment in the amount of $13,113.36. Defendant argued that it should be awarded a credit in that amount.

In addressing defendant's petition for reconsideration, the commissioners analyzed the statutes applicable to sanctions. The commissioners specifically addressed Labor Code Section 5813 as well as WCAB Rule 10561(b). In finding that a petition for reconsideration over a three cent dispute justified the imposition of sanctions, the commissioners noted:

"Defendant's petition for reconsideration does not reveal, and we can not imagine, what 'reasonable' justification underlies its request for reconsideration of an award of a credit that is short by three cents. Defendant is correct that there is a 'legal' ground: the evidence does not, strictly speaking, justify the finding of fact. The evidence, Joint Exhibit AA, demonstrates that the actual permanent disability indemnity advanced was $16,473.36. The decisions do, therefore, contain errors. That fact, alone, does not qualify as 'reasonable justification' for defendant's petition, when the errors are undeniably de minimus.

"Even if defendant did have a reason, not apparent to us, for seeking correction of such a trifling error, a petition for reconsideration was unnecessary. A WCJ may correct clerical errors at any time, even after the time for filing a petition for reconsideration has lapsed. (Toccalino v. Worker's Comp. Appeals Bd. (Sierra Vista Hospital) (1982) 128 Cal.App.3d 543 [47 Cal.Comp.Cases 145, 154-155].) A simple request to the WCJ to correct the clerical errors - better yet, a joint request - would have been sufficient. Even if defendant chose to file a petition, the caption of the petition should have specified that it sought correction of clerical errors only. By captioning the petition a "Petition for Reconsideration," a process was set in motion that invoked a substantial expenditure of labor at both the district office and the Office of the Commissioners.

"In addition, it is difficult to understand in what sense defendant was 'aggrieved' by an error amounting to three cents. (See Lab. Code. �� 5900, 5903.) To waste the Appeals Board's time and resources over a three-cent error does an outrageous disservice, not only to us and our staff, but to the many deserving litigants awaiting our decisions on matters of consequence."

For these reasons and due to defendant's failure to bring the incorrect amount also reflected in the Minutes of Hearing/Summary of Evidence to the WCJ's attention, the commissioners issued a notice of intention to sanction defendant Kraft Foods; defendant's attorney as well as the law firm wherein defense counsel worked, jointly and severally, in the amount of $500.00. The parties were given fifteen (15) days within which to file written objections, showing good cause why the sanctions should not be imposed and to "enlighten" the commissioners us as to whom, specifically, felt compelled to delay these proceedings by filing a frivolous petition for reconsideration over a "paltry three cents".

Subsequent to the Opinion on Order Granting the Petition for Reconsideration and Notice to Impose Sanctions discussed above, defendant did file a Response to the WCAB's Notice of Intention to Impose Sanctions. In the response, defendant argues that the error contained in Judge Samuel's decision justified its petition for reconsideration. Specifically, defendant argues in pertinent part:

"...there was reasonable justification in filing a petition for reconsideration to correct these errors, to insure that Kraft Foods was not responsible for paying more than it owed...If the errors were not corrected, applicant would have an award for three more cents that [sic] he is entitled to. Even if three cents is not a significant amount, Kraft Foods should not have to pay any amount more than it owes...Even though, as the Workers' Compensation Appeals Board points out in its Opinion, that filing a petition for reconsideration was unnecessary to correct a clerical error, Title 8, California Code of Regulations does not prohibit the filing of a petition for reconsideration to correct such errors."

Thus, defendant argues that whether the amount in dispute is three cents or three million dollars, the petition for reconsideration was, in fact, meritorious. Additionally, defendant makes the point that there is nothing, from a legal perspective, prohibiting a party from seeking to correct a clerical error by way of the filing of a petition for reconsideration. It will be interesting to see how the commissioners respond. We will continue to track this case and report any developments.

Reminder: Practitioners should check the subsequent history of this panel decision before citing to it.

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� Copyright 2011 LexisNexis. All rights reserved. This article will be published in an upcoming issue of the California WCAB Noteworthy Panel Decisions Reporter.