Scheftner Reviewed

Saturday, July 30, 2005 | 0

In a decision that has been long anticipated and even predicted in the workers' compensation community, the Court of Appeals has reversed the WCAB holding in Rio Lindo USD v WCAB (Scheftner). The WCAB in its en banc decision issued last year had held that the provisions of SB 899 precluding the application of the legislative changes to alter, amend etc. existing orders or awards applied to interlocutory orders such as orders closing discovery.

The holding in the Board's Scheftner had been almost universally ignored by not only the WCAB itself but also by the appellate courts in a series of cases involving primarily apportionment. In each case the appellate courts had noted that they were not bound by en banc decisions of the WCAB and also that there had been a writ granted, implying that the case was going to likely be reversed.

The holding in Scheftner had been argued and rejected by the Appellate Courts in Kleeman, Marsh, Kral and even the WCAB had repudiated its own rational in Escobedo.

The Court made it clear that a final decision, order or award only includes decisions on the merits that have reached the end of the appellate process and that the limitation on the WCAB's ability to alter or amend those orders applied to the Board's continuing jurisdiction not interlocutory orders:

"[W]e can presume the Legislature in using the entire phrase 'shall not constitute good cause to reopen or rescind, alter, or amend any existing order, decision, or award of the Workers' Compensation Appeals Board' was intentionally referring to the continuing jurisdiction authority of the WCAB under sections 5803 and 5804. The majority decision of the WCAB fails to recognize this. Instead the majority decision incorrectly focuses on the Legislature's choice of the word 'existing' in section 47 to conclude significant interlocutory orders, including orders of submission and orders closing discovery cannot be 'reopened' by SB 899. Such orders are not, however, the type of orders, decisions or awards to which the entire phrase in section 47 refers. The language chosen by the Legislature, read as a complete phrase, indicates the Legislature did not want the changes of law made by SB 899 to be the basis for reopening cases otherwise concluded under the workers' compensation procedures for decision (Lab. Code, section 5313), reconsideration (Lab. Code, section 5900), and judicial review (Lab. Code, section 5950)."

Interestingly, even though several appellate decisions have specifically refused to apply the holding in Scheftner, and the WCAB had rejected its own rational in Escobedo, several writ denied decisions have issued citing Scheftner as a basis for not allowing a defendant to reopen discovery to address issues raised with the passage of SB 899. Unfortunately, for those cases the decision is now final and the parties are locked into a result that is clearly not legally supportable based on not only the decision by an entire line of cases following Kleeman that address the question of when a decision is final. [Ed. Note: which is why case parties should not follow writ denied "case law" - they are not judicial opinions, but are merely summaries, often incorrect, of appellate briefs only.]

By attorney Richard "Jake" Jacobsmeyer, managing partner of the Concorde office of Adelson, Testan, Brundo & Popolardo. Jake can be reached at richardjacobsmeyer@atblaw.net.

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