2009-EB-5 (2009). In re Pellicer.

• Court: California

California Workers Compensation Decisions 2009. 2009-EB-5 (2009). In re Pellicer WORKERS' COMPENSATION APPEALS BOARD STATE OF CALIFORNIA LAWRENCE WEINER, Applicant, vs. RALPHS COMPANY, Permissibly Self- Insured; and SEDGWICK CLAIMS MANAGEMENT SERVICES, INC. (Adjusting Agent), Defendant(s).Case No. ADJ347040 (MON 0305426)ORDER ALLOWING AMICUS BRIEFS(EN BANC) On April 10, 2009, the Appeals Board granted reconsideration to further study the factual and legal issues presented by the petition for reconsideration filed by defendant, Ralphs Grocery Company. Defendant sought reconsideration of the Findings and Award issued by the workers' compensation administrative law judge (WCJ) on January 13, 2009. In that decision, the WCJ accepted the parties' stipulation that applicant, Lawrence Weiner, sustained an industrial injury to his right hip, cervical spine, and lumbar spine from 1967 through September 30, 2002, while employed as a checker by defendant. In relevant part, the WCJ further found that applicant is entitled to retroactive vocational rehabilitation maintenance allowance benefits (VRMA), payable at his stipulated temporary disability indemnity (TD) rate, for the period of June 13, 2003 to March 7, 2005. Accordingly, the WCJ awarded those benefits. In its petition, defendant contends, in summary, that: (1) the WCJ lacked jurisdiction to award VRMA at the TD rate on January 13, 2009 because (a) the Legislature repealed the vocational rehabilitation statute, Labor Code section 139.5,[1]effective January 1, 2009; (b) the right to vocational rehabilitation benefits is wholly statutory, and the Legislature could repeal In its petition, defendant contends, in summary, that: (1) the WCJ lacked jurisdiction to award VRMA at the TD rate on January 13, 2009 because (a) the Legislature repealed the vocational rehabilitation statute, Labor Code section 139.5,1 effective January 1, 2009; (b) the right to vocational rehabilitation benefits is wholly statutory, and the Legislature could repeal that right at any time; (c) the repeal of a statutory right stops all pending actions where the repeal finds them, even if the repeal becomes effective while an action is pending on appeal, unless the repeal contains a savings clause that protects the right in pending litigation; and (d) therefore, all rights to vocational rehabilitation benefits were abolished effective January 1, 2009, unless those rights were vested through a final order; (2) the award of VRMA cannot be justified under the vocational rehabilitation "ghost statutes" because, by repealing section 139.5, the Legislature ended the tenure of any "ghost statutes" by ending vocational rehabilitation itself; (3) injured employees were not prejudiced by the January 1, 2009 abolishment of all rights to vocational rehabilitation benefits, because they had five years to litigate vocational rehabilitation issues and to obtain final awards; (4) although the Labor Code still mentions vocational rehabilitation in other sections, such as section 5803, these sections merely give the WCAB continuing jurisdiction to enforce awards under section 139.5 that became final before January 1, 2009; and (5) even assuming the WCJ had jurisdiction to award retroactive VRMA at the TD rate, his decision violated section 5313 because it did not address whether retroactive VRMA at the TD rate can be construed as a penalty under section 5814 and it did not explain how retroactive VRMA at the TD rate may be awarded retroactively to a date before the employer had some specific knowledge of the employee's possible QIW status. Applicant filed an answer. He contends, in summary, that: (1) his right to retroactive VRMA at the TD rate is based on the statutory law in effect at the time those benefits should have been provided; (2) his right to retroactive VRMA at the TD rate is based on...