2009-EB-6 (2009). In re Pellicer.

• Court: California

California Workers Compensation Decisions 2009. 2009-EB-6 (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)OPINION AND DECISION AFTER RECONSIDERATION(EN BANC) We granted the petition for reconsideration of defendant, Ralphs Grocery Company, to allow time to further study the record and applicable law. Thereafter, to secure uniformity of decision in the future, the Chairman of the Appeals Board, upon a majority vote of its members, assigned this case to the Appeals Board as a whole for an en banc decision (Lab. Code, § 115)[1] regarding the effect of the Legislature's repeal of Labor Code section 139.5[2], effective January 1, 2009, on injured employees' entitlement to vocational rehabilitation benefits and services after that date and on the jurisdiction of the Workers' Compensation Appeals Board (WCAB) to address vocational rehabilitation issues after that date. Concurrently, the Appeals Board invited amicus curiae briefs and allowed the parties to reply to the amicus briefs. We have now completed our deliberations. For the reasons below, we hold that: (1) the repeal of section 139.5 terminated any rights to vocational rehabilitation benefits or services pursuant to orders or awards that were not final before January 1, 2009;[3] (2) a saving clause was not adopted to protect vocational rehabilitation rights in cases still pending on or after January 1, 2009; (3) the vocational rehabilitation statutes that were repealed in 2003 do not continue to function as "ghost statutes" on or after January 1, 2009; (4) effective January 1, 2009, the WCAB lost jurisdiction over non-vested and inchoate vocational rehabilitation claims, but the WCAB continues to have jurisdiction under sections 5502(b)(3) and 5803 to enforce or terminate vested rights; and (5) subject matter jurisdiction over non-vested and inchoate vocational rehabilitation claims cannot be conferred by waiver, estoppel, stipulation, or consent. I. Background 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. Although the parties ultimately stipulated to injury, the issue of injury was initially disputed. Applicant voluntarily retired on September 30, 2002 based on an offer of a pension. From that date through March 7, 2005, he was ready, willing and able to participate in vocational rehabilitation. Applicant filed an application on June 7, 2003 and made a demand for vocational rehabilitation on June 13, 2003. In a report of June 15, 2004, applicant's treating physician, Philip A. Sobol, M.D., opined that applicant's injury was industrial and declared him to be a qualified injured worker (QIW). This was the first report indicating a need for vocational rehabilitation. Applicant made a second demand for vocational rehabilitation on July 12, 2004. On March 8, 2005, defendant accepted applicant's injury claim and commenced the provision of vocational rehabilitation benefits. On March 31, 2005, applicant was evaluated by Alexander Angerman, M.D., as the agreed medical evaluator (AME) in orthopedics. On May 6, 2005, Dr. Angerman issued a report determining that applicant sustained a cumulative industrial injury and agreeing that applicant is a QIW. Except for a period when vocational rehabilitation was interrupted for medical treatment, applicant participated in vocational rehabilitation from March 8, 2005 through approximately March 26, 2008, when defendant requested closure of vocational rehabilitation. Applicant objected to closure. Except for a period when vocational rehabilitation was interrupted for medical treatment, applicant participated in vocational rehabilitation from March 8, 2005 through approximately March 26, 2008, when defendant requested closure of vocational rehabilitation. Applicant objected to closure. On April 8, 2008, a stipulated Findings and Award issued which determined that applicant had sustained cumulative industrial injury to his right hip and his cervical and lumbosacral spine, resulting in 60% permanent disability and a need for further medical treatment. On July 7, 2008, the parties appeared before the Rehabilitation Unit. The only issue addressed at the Rehabilitation Unit conference was whether applicant is entitled to retroactive vocational rehabilitation maintenance allowance (VRMA) at his temporary disability indemnity (TD) rate from June 13, 2003 (the date of his initial request for vocational rehabilitation) through March 7, 2005 (the day before defendant voluntarily commenced vocational rehabilitation benefits and services). The issue of case closure was not raised. On July 9, 2008, the Rehabilitation Unit issued a determination that applicant is entitled to retroactive VRMA at his TD rate from June 13, 2003 through March 7, 2005. On July 29, 2008, defendant filed a timely rehabilitation appeal, together with a declaration of readiness. Defendant's rehabilitation appeal initially was set for a September 8, 2008 status conference; however, the conference was continued to October 14, 2008 at defendant's request due to its attorney's calendar conflict. A trial took place before a workers' compensation administrative law judge (WCJ) on November 24, 2008, at which time the matter was submitted for decision. On January 13, 2009, the WCJ issued a Findings and Award. In that decision, the WCJ found in relevant part that applicant is entitled to retroactive VRMA at his TD rate for the period of June 13, 2003 to March 7, 2005. Accordingly, the WCJ awarded those benefits. In its petition for reconsideration, defendant contended, in substance, that: (1) the WCJ's January 13, 2009 order awarding retroactive VRMA at the TD rate on January 13, 2009 issued in excess of the WCAB's jurisdiction because (a) the Legislature repealed the vocational rehabilitation statute, section 139.5, 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 saving 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 retroactive VRMA at the TD rate 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, it was error to do so. Applicant filed an answer. He contended, in substance, 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 the statutory law in effect on November 24, 2008, when the issue was submitted for decision to the WCJ; (3) it would be unconscionable to deny him retroactive VRMA at the TD rate where defendant delayed these benefits without any basis and where a hearing on defendant's vocational rehabilitation appeal was continued because of its counsel's unavailability; (4) the vocational rehabilitation "ghost statutes" gave the WCJ jurisdiction to deny defendant's vocational rehabilitation appeal and to find and award retroactive VRMA at the TD rate; (5) section 5502(c)(3), which was not repealed, constitutes a saving clause that allows the WCAB to hear and determine issues of entitlement to vocational rehabilitation benefits under repealed section 139.5; and (6) he is entitled to VRMA at the TD rate retroactive to the date he first requested vocational rehabilitation. Pursuant to our invitation, we received several amicus curiae briefs.[4] Applicant and defendant each filed replies to the amicus briefs. II. The History of Vocational Rehabilitation in California In order to address the issues presented to us on reconsideration, we will first trace the most important elements of the history of vocational rehabilitation in California. Prior to 1965, the workers' compensation laws made no provision for vocational rehabilitation. In 1965, however, the Legislature adopted section 139.5, which initially established a "voluntary" rehabilitation program. (Stats. 1965, ch. 1513, § 44.5.) At the same time, the Legislature amended section 3207 to include "vocational rehabilitation" within the statutory definition of "compensation." (Stats. 1965, ch. 1513, § 52.) In 1974, the Legislature amended...