2009-EB-4 (2009). Boughner v. COMP USA, Inc.

• Court: California

California Workers Compensation Decisions 2009. 2009-EB-4 (2009). Boughner v. COMP USA, Inc WORKERS' COMPENSATION APPEALS BOARD STATE OF CALIFORNIA WANDA OGILVIE, Applicant, vs.CITY AND COUNTY OF SAN FRANCISCO, Permissibly Self-Insured, Defendant(s).Case No. ADJ1177048 (SFO 0487779)ORDER GRANTING RECONSIDERATION AND ORDER ALLOWING AMICUS BRIEFS(EN BANC) On February 3, 2009, the Appeals Board issued an en banc decision on the issue of rebutting the diminished future earning capacity (DFEC) portion of the 2005 Schedule for Rating Permanent Disabilities. On February 19, 2009, applicant, Wanda Ogilvie, filed a timely petition for reconsideration. On March 2, 2009, defendant, the City and County of San Francisco, also filed a timely petition for reconsideration (which also included an answer to applicant's petition). For the reasons that follow, we will grant both petitions for reconsideration. We also will give any interested person or entity until 5pm on Friday, May 1, 2009 to file an amicus curiae brief and to serve that brief on both counsel in the Ogilvie case.[1] Then, each counsel in the Ogilvie case shall have until 5pm on Thursday, May 21, 2009 to file a single consolidated reply brief that responds to all of the amicus briefs. These time limitations for filing mean that a brief must be received by the Appeals Board by the applicable deadline, and not merely posted by that deadline. (Cal. Code Regs., §§ 10845(a), 10230(a).) Untimely briefs will not be considered. Preliminarily, in granting reconsideration, we conclude that our February 3, 2009 en banc decision constitutes a "final" order. A petition for reconsideration is properly taken only from a "final" order, decision, or award. (Lab. Code, §§ 5900(a), 5902, 5903.) Generally, a "final" order is one "which determines any substantive right or liability of those involved in the case." (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180 (Rymer); Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410, 413] (Pointer).) Accordingly, where - as here - the Appeals Board grants reconsideration, rescinds the decision of the WCJ, and returns the matter to the WCJ for further proceedings and a new decision, the Appeals Board's action generally is not deemed a "final" order.(Cf. Travelers Ins. Co. v. Workers' Comp. Appeals Bd. (Taylor) (1983) 147 Cal.App.3d 1033, 1036, fn. 3 [48 Cal.Comp.Cases 774, 775, fn. 3] (Taylor) ("a petition seeking review of a [WCAB] order which remands a matter to the trial judge for further proceedings is ordinarily premature").) However, an interlocutory WCAB decision may be deemed a "final" order if it determines a "threshold" issue. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1073- 1081 [65 Cal.Comp.Cases 650, 653-660] (Maranian); Aldi v. Carr, McClellan, Ingersoll, Thompson and Horn (2006) 71 Cal.Comp.Cases 783, 784 (Appeals Board en banc) (Aldi).) A "threshold" issue has variously been described as "a substantial issue fundamental to the . claim for benefits," "an issue critical to the claim for benefits," or "an issue that is basic to the establishment of the ... right[] to benefits." (Maranian, supra, 81...