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Rymer v. Hagler6/27/1989
Whether or not the employer has provided workers' compensation coverage is a substantive issue. It determines the forum for the dispute and the penalties to be imposed. (§§ 3706, 3715.) The ruling decided the issue of coverage and established Fremont as the insurance carrier and a party to the WCAB proceeding. It was a final order for purposes of collateral estoppel. Public policy is served by application of the doctrine on these facts, not
defeated as appellant contends. (See In re Marriage of Doud (1986) 181 Cal. App. 3d 510, 522 [226 Cal. Rptr. 423] [public policy served is to protect parties from endless litigation].)
The dismissal of the worker's compensation proceeding does not alter the finality of the WCAB judge's order. The Restatement Second of Judgments defines "final judgment" less strictly for purposes of issue preclusion through collateral estoppel than for purposes of merger or bar through res judicata. The term includes "any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect." (Rest.2d Judgments, § 13.) This court invoked the Restatement's expansive concept of finality for collateral estoppel in Sandoval v. Superior Court (1983) 140 Cal. App. 3d 932 [190 Cal. Rptr. 29]. The court noted that while a judgment is not final for purposes of res judicata while an appeal is pending, "the Restatement analysis and reason itself dictate that the trial court judgment reemerges with sufficient finality to permit the application of collateral estoppel" when an appeal is settled favorably to the plaintiff and then dismissed. (Id., at p. 937.)
Buttimer v. Alexis (1983) 146 Cal. App. 3d 754 [194 Cal. Rptr. 603] involves issues similar to those in the instant case. Buttimer refused to submit to an intoxication test when arrested for driving under the influence of alcohol. The trial judge granted his Penal Code section 1538.5 motion to suppress the evidence of his refusal to submit to the test, ruling that the arrest was without probable cause. The district attorney dismissed the criminal proceeding. Later, the Department of Motor Vehicles sought to suspend his driver's license for refusing the test. The DMV hearing officer rejected evidence of the prior ruling and suspended Buttimer's license after finding the arrest was legal. The court held that the issue of lawfulness of the arrest was previously litigated and the determination became final when the criminal charges were dismissed. (See also King v. International Union of Operating Engineers (1952) 114 Cal. App. 2d 159, 164 [250 P.2d 11] [dismissal in first action for failure to exhaust internal union remedies binding on second action involving same underlying controversy].)
B. Appellant's failure to seek reconsideration of the decision within the time allowed renders the decision final and bars its review.
The decision of the WCAB judge is also final because appellant failed to seek review within the time allotted. Section 5903 provides that a party in a workers' compensation proceeding may seek review of a final order of the WCAB or a workers' compensation judge if the petition is filed within 20 days of the final decision or order. When a party fails to seek review within the time allotted, both the WCAB and the court is without jurisdiction to hear future challenges to the decision. (§§ 5901, 5950; Scott v. Workers' Comp. Appeals Bd. (1981) 122 Cal. App. 3d 979, 984 [176 Cal. Rptr. 267]
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