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because (a) the Legislature repealed the vocational rehabilitation statute,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(a) the Legislature repealed the vocational rehabilitation statute, Labor Code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...
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