WCAB To Reconsider Cases AGAIN

In yet another unexpected turn of events the WCAB has issued an Order Granting Reconsideration and Allowing Amicus Briefs (en banc) in the Almaraz, Guzman and Ogilvie cases. SCIF had filed a petition for Reconsideration in Almaraz and The City and County of San Francisco had done so in Ogilvie. The Milpitas Unified School District however had not filed for reconsideration. Instead, the District had filed a Petition for Writ of Review with the Court of Appeal, Sixth Appellate District. Nonetheless, the WCAB granted reconsideration in Guzman as well on its own motion since the Almaraz and Guzman cases are “inextricably intertwined.”

In both cases the WCAB failed to issue a stay of the legal effect of the prior decisions as urged by Commissioner Aghazarian. This means discovery can still proceed under the previous decisions. However, it is unlikely any Judge will agree to decide a case raising the Almaraz/Guzman or Ogilvie arguments until after the WCAB’s new decisions are issued.

Procedurally the action of the WCAB may not be on sound legal ground. Legally the WCAB may only grant reconsideration of “final” orders, decisions or awards. It is questionable whether these decisions were in fact final orders because they did not involve substantive rights, but rather procedural rights. (i.e. not whether there is PD, but how to compute it.)

The WCAB got around this obstacle by citing Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1073-1081 [65 Cal. Comp. Cases 650] for the proposition that an order can be deemed final if it determines a “threshold issue” – an “issue critical to the claim for benefits.” A full reading of Maranian however, also includes dicta which appears to be directly on point. Specifically, the Court of Appeal notes that procedural or evidentiary decisions are not final orders. (Maranian, supra, at p. 1075.) How to rebut the rating schedule would seem to be procurable and/or evidentiary in nature. It remains to be seen whether the issues raised in these cases will ultimately be deemed procedural or substantive. The Courts of Appeal might have to decide.

Another potential pitfall for the WCAB is specific to Guzman. The petition for writ of review was timely filed as was an answer – both before the WCAB’s most recent order. It remains to be seen whether the Court of Appeal will grant the writ and schedule oral argument or allow the WCAB to reconsider its own decision. It is also unclear whether the parties to Guzman will consent to the WCAB rehearing the matter. The situation could result in jurisdictional conflict between Sixth District and the WCAB. Historically, however the Courts have allowed the WCAB to get “first crack” at interpreting Workers’ Compensation laws.

Technical issues aside, the WCAB has set a briefing schedule. The Parties to Guzman have until 5 p.m. on May 1, 2009 to file briefs. Any interested person or entity may file an Amicus Curiae brief in the joint Almaraz/Guzman case and/or Ogilvie case by the same deadline. Amicus Curiae briefs are limited to 15 pages in length. The briefs previously field by both sides in the Almaraz and Ogilvie cases are available here:

Ogilvie

Almaraz

There is little use these days in trying to predict the outcome at the WCAB level. Historically it would be unheard of for the WCAB to reverse itself en banc without a change of Commissioners such as in Baglione and Pendergrass. Yet, the request by DIR Director John Duncan was unforeseen as was this granting of reconsideration. The only sure bet is we have not seen the end of this litigation.

Opinions Filed 04/06/09.

Heggeness,Sweet, Simington & Patrico, A.P.C

WCAB To Reconsider Cases AGAIN