TERESA GODINEZ, Applicant,
v.
BUFFETS, INC., permissibly self-insured and SPECIALTY RISK SERVICES, adjusting agent, Defendants).
No. SJO 0225696
Workers' Compensation Appeals Board State Of California
January 1, 2001
OPINION
AND DECISION AFTER RECONSIDERATION
On
August 6, 2004, the Appeals Board granted reconsideration to
further study the factual and legal issues in this case. We
have completed our deliberations, and the following is our
decision after reconsideration.
In the
Findings and Order (Amended) of May 25, 2004, the
workers' compensation administrative law judge (WCJ)
found that defendant's vocational rehabilitation appeal
filed on August 5, 2003 was filed with the Rehabilitation
Unit (RU), not with the Appeals Board, that there was no
timely appeal of the RU's determination of July 17, 2003,
and that defendant must comply with said determination.
Defendant
sought reconsideration of the WCJ's decision, contending
that the repeal of Labor Code section 4645(d) in 2003 applies
retroactively because the statute was procedural, that there
is no longer any requirement to file a rehabilitation appeal
with the Appeals Board, that the WCJ erred in relying on
Cabrera v. Intercell Industries (1980) 45
Cal.Comp.Cases 3 [Appeals Board en banc], and that under WCAB
Rule 10390 the WCJ should have excused defendant's
alleged mistake and proceeded on the merits.
Applicant
filed an answer.
In
issuing his decision, the WCJ relied on Labor Code section
4645(d), which provided (before its repeal in 2003) that an
appeal of a decision of the RU must be filed with the Appeals
Board within 20 days of the date of the determination.
Based
upon our review of the record and applicable law, we conclude
that the timeliness of an appeal from any determination or
recommendation of the Administrative Director's
vocational rehabilitation unit with reference to an injury
occurring before January 1, 2004, is controlled by former
Labor Code section 4645(d), and that defendant's appeal
in this case was filed timely. The date of injury in this
case is June 18, 2000. Accordingly, as our decision after...
