2009-EB-7 (2009). Lawrence Weiner v. Ralphs Company, Permissibly Self-Insured; and Sedgwick Claims Management Services, Inc. (Adjusting Agent).

• Court: California

California Workers Compensation Decisions 2009. 2009-EB-7 (2009). Lawrence Weiner v. Ralphs Company, Permissibly Self-Insured; and Sedgwick Claims Management Services, Inc. (Adjusting Agent) 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 ORDER DENYING RECONSIDERATION (EN BANC) Applicant, Lawrence Weiner, seeks reconsideration of the Opinion and Decision After Reconsideration (En Banc) issued by the Appeals Board on June 11, 2009. (See Weiner v. Ralphs Company (2009) 74 Cal.Comp.Cases 736 (Appeals Board en banc) (Weiner I).) In our current en banc decision,[1] we deny applicant's petition for reconsideration. Our June 11, 2009 en banc decision rescinded the January 13, 2009 Findings and Award of the workers' compensation administrative law judge (WCJ). The WCJ had found that applicant is entitled to retroactive vocational rehabilitation maintenance allowance benefits (VRMA) at his temporary disability indemnity (TD) rate from June 13, 2003, the date he initially requested vocational rehabilitation) through March 7, 2005, the day before defendant voluntarily commenced vocational rehabilitation benefits and services. In rescinding the WCJ's decision, our initial en banc opinion held that: (1) the repeal of Labor Code section 139.5,[2] effective January 1, 2009, terminated any rights to vocational rehabilitation benefits or services pursuant to orders or awards that were not final before January 1, 2009; (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rights in cases still pending on or after January 1, 2009; (3) the vocational rehabilitation statutes that were repealed in 2003 do not continue to function as "ghost statutes" on or after January 1, 2009; (4) effective January 1, 2009, the Workers' Compensation Appeals Board (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. In his petition, applicant contends: (1) there was a period of retroactive VRMA benefits payable at the non-delay rate[3] over which there was no good faith dispute - i.e., the period between the date of his second vocational rehabilitation request, which was supported by medical evidence declaring him a qualified injured worker (QIW), through the date defendant voluntarily commenced vocational rehabilitation benefits and services; therefore, these benefits were "vested" and should have been allowed; (2) the repeal of section 139.5 did not automatically terminate the right to benefits owed before January 1, 2009; (3) he is entitled to retroactive benefits because section 5502(b)(3), which allows hearings before the WCAB on vocational rehabilitation issues, was not repealed; (4) he is entitled to retroactive benefits because section 5410, which allows for requests for vocational rehabilitation benefits for up to five years from the date of injury, was not repealed; (5) he is entitled to...