Background
Our client, Mr. L, has worked as an inspector for over eight years years. His job that required him to engage in repetitive lifting. After Mr. Llanos was injured in an accident and following surgery his physician placed permanent restrictions on lifting, making it impossible for Mr. L to return to his customary work. Mr. L attempted to return to work but his employer could not accommodate his restrictions, and Mr. L became unemployed. He filed for unemployment, and the EDD denied his claim stating he was not “able and available to perform his customary work.”
Mr. L filed an appeal on his own. The appeal judge affirmed the EDD decision, citing Sanchez v. California Unemployment Insurance Appeals Board, stating that once the Claimant is unable to perform the essential functions of his customary work due to his injury. The judge concluded “Since the claimant cannot perform the job he had worked in for several years and has no training in any other field, it is concluded that he is not available for work within the meaning of code section 1256.” This is despite the fact the Claimant has shown an effort to retrain in a new line of work.
Mr. L disagreed with the judge and filed a Board Appeal. The Board noted Mr. L’s attempts to be re-trained, but also noted they occurred after his disqualification. The Board, therefore, affirmed the disqualification.
Writ of Mandate
Mr. L retained Pershing Square Law Firm, PC to explore filing a Writ of Administrative Mandate. A writ is when a party files an appeal to the Superior Court seeking an order to a lower court to change a prior decision of that lower court. Reviewing the file gave rise to the following question: If someone gets hurt and is unable to do their customary work in the foreseeable future, does that mean they are unable to work at all? In other words, if a claimant is unable to return to his regular and customary work of many year, is there no other value for that person in the work market? It seemed incorrect to assume Mr. L could not perform any work just because he was unable to lift and to deny his claim for benefits on that basis. In fact, it seemed from the record that Mr. L was training to secure new employment, but there was scarce discussion about training, making the record too thin on the subject of substitute employment. We decided to take this matter to a writ.
We took our argument before a judge of the California Superior Court. The judge agreed with our argument stating “the court agrees that the ALJ should have more exhaustively inquired into whether or not there was suitable employment of a like or suitable kind as Mr. L had previously performed or had training to perform.” The Court agreed with our contention that “[Mr. L] was restricted from performing manual labor, but not office based jobs.”
The Superior Court remanded the matter back for a new hearing.
Remand for a Re-Hearing
Our office represented Mr. L at the remanded hearing. Prior to the hearing we prepare ample documentation showing that full spectrum of work that Mr. L was able to perform from the beginning of his claim, including the skills he acquired through his training. At remand the administrative law judge agreed that Mr. L was indeed able to perform other work and granted his benefits.
Result
As a result of our appeals, Mr. L was backpaid his entire 6 months of benefits in one lump sum. Two conclusions follow. First, understand the issues the hearing turns on. By understanding the issues at hand you can prepare for the hearing, know what questions are critical and how you intend to answer them. Second, it is advisable to hire an attorney when preparing for an appeal hearing. An attorney can help evaluate which information, questions and documents are likely to support the case.
