Court Of Appeal Sticks A Fork In VR

Beverly Hilton Hotel v. Workers’ Comp. Appeals Bd. (2009):  The Second Appellate District, Division Five has unanimously determined that vocational rehabilitation truly is dead.  This is in accord with the recent en banc WCAB decisions in Weiner and Weiner II.

In Beverly Hilton, the injured worker obtained a Decision and Order of the Rehabilitation Unit on July 21, 2006 awarding him Vocational Rehabilitation benefits.  The defendant appealed.  After a trial de novo, the Workers’ Compensation Judge issued a Findings and Award on January 31, 2008.  The WCJ awarded retroactive VRMA at the temporary disability rate for a period beginning July 21, 1998 through the date the injured worker met with a counselor (almost 10 years). 

The defendant filed a Petition for Reconsideration with the WCAB.  The WCAB affirmed the Findings and Award on October 7, 2008.  The defendant then filed a petition for writ of review on November 20, 2008.  The Court of Appeal requested briefing on the effect of the January 1, 2009 sunset clause of Labor Code section 139.5.

After hearing all the arguments from the parties and Amicus Curiae (and allowing the calendar to turn to 2009), the Court of Appeal has now rendered its decision.  The WCAB and the Courts of Appeal do not have jurisdiction to award any Vocational Rehabilitation benefits.

The Court determined (consistent with long standing precedent) that a workers’ compensation award is not final until all appellate rights have been exhausted.  Here, since the Writ was pending when the law was came off the books, the new law applied.  It reaffirmed the old adage that “The legislature giveth, the legislature can taketh away.”  In other words, if the law changes while a Petition for Reconsideration, Writ of Review or Review is pending, the Court must decide the case under the new law. 

Next, the Court considered whether the repealing statute had a savings clause.  The Court rejected arguments that a clause could be found in Labor Code section 5402 (authorizing expedited hearings) or sections 5803 and 5410.  The Court concluded that the only “saving” effect of these statutes is to allow the WCAB to act on VR awards which were final before January 1, 2009.

Finally, the Court rejected the “ghost statute” argument.  It explained that the “ghost” cases were trying to give effect to the holes in section 139.5 created by the repeal of its implementing and interpreting statutes.  To hold that this line of cases resurrects the now repealed section 139.5 would create and unnecessary and unlawful double ghost situation.

In short the Court of Appeal determined that the WCAB has no jurisdiction over any VR issue whatsoever.  The sole exception is limited to enforcing or interpreting awards which became final prior to January 1, 2009.  It is unclear whether the parties will proceed to the Supreme Court.  This decision likely means Weiner will be upheld on Writ.

Opinion filed August 26, 2009.

 

The Petition for Review to the Supreme Court was denied on November 19, 2009.

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