Time For a Fresh Look at Several Important WC Cases

Tuesday, April 21, 2009 | 0

By Mullen & Filippi

Spring has arrived. The weather is getting warmer, the days are getting longer and the flowers are in bloom - the perfect time for taking a fresh look at what is going on around us. The Workers' Compensation Appeals Board appears to agree, having recently decided to take a fresh look at two recent and much-discussed en banc decisions.


Reconsidering Almaraz/Guzman and Ogilvie.
In February, we reported on these Workers' Compensation Appeals Board (WCAB) en banc decisions, which held that the 2005 permanent disability rating schedule is rebuttable and discussed the boards views on how to go about rebutting the rating. On April 6, 2009, the WCAB decided to reconsider its decisions in these cases, acknowledging the overwhelming, and frequently negative, response to the opinions.

In response to State Compensation Insurance Funds' petition in the Almaraz case, the WCAB issued an order granting reconsideration. In an unusual - but in this case, appropriate - move, the board simultaneously granted reconsideration of the Guzman case on its own motion. The board explained that since its en banc decision was issued in both cases, they are inextricably intertwined, and failure to grant reconsideration in Guzman would conceivably lead to inconsistent results, which certainly should not occur in the context of an en banc decision. We agree.

On the same day, the board also granted reconsideration in Ogilvie, in response to petitions for reconsideration filed by both parties, each contending, for different reasons, that the Boards decision was flawed.

Acknowledging in each case that "our en banc decision has been the subject of much comment and debate in the workers compensation community and even the broader public," the board has invited those interested to file amicus briefs in each case by 5 p.m. on Friday, May 1, 2009. The parties then have until Thursday, May 21, 2009, to file reply briefs. We anticipate new decisions sometime this summer.

To say that these cases have been the subject of much comment and debate seems to us to be something of an understatement. Our observation is that the response has been more in the nature of an uproar. Consequently, we applaud the decision of the WCAB to rethink its prior opinions in these cases.

We also hope that their fresh look at the issues will result in decisions which are more in line with the statutory mandate for consistency, uniformity and objectivity in permanent disability ratings.


Taking A Fresh Look At LeBoeuf In Relation To The Apportionment Statutes.
On March 25, 2009, the Supreme Court granted review in Hertz Corporation v. WCAB (Aguilar), in which the Court of Appeal had held that an injured worker who was found not vocationally feasible, in part, because of his limited English language skills and illiteracy was not entitled to 100% permanent disability under the LeBoeuf doctrine.

In this case, the injured worker, a car washer for Hertz, suffered multiple injuries which were found to result in approximately 60% permanent disability on a medical basis, and precluded him from returning to work at his prior job.

When referred for vocational rehabilitation, his counselor issued a report stating that, although he was physically feasible for certain light duty jobs, he was not vocationally feasible, because of his limited ability to speak English and inability to read or write in English.

As a result, relying on the LeBoeuf doctrine, the Workers Compensation Judge found him to be entitled to 100% permanent disability, and the WCAB affirmed. On appeal, the Court of Appeal reversed, finding that since the non-feasibility finding was based in part on non-industrial factors, the employer was entitled to apportionment under Labor Code section 4663 and 4664.

Although all three justices participating in the decision agreed that LeBoeuf was improperly applied in this case, one authored a concurring opinion expressing concern that this decision would erode LeBoeuf in a manner that unfairly infringed on the rights of unskilled workers.

We can speculate that this concern may have prompted the Supreme Court to agree to review the case. In the meantime, unless and until the Supreme Court finds otherwise, evaluating the reason for an injured workers inability to return to work remains an important factor in assessing permanent disability.


Seeking A Fresh Look At The Benson Decision.
Last month, we reported on the First District Court of Appeal decision in the Benson case, in which the court found that under current statutes permanent disability must be assessed separately for each date of injury. On March 23, 2009, the applicant filed a Petition for Review with the Supreme Court, asking that court to review the decision.

The Supreme Court has 60 days from March 23, 2009, or until May 21, 2009, to decide whether to accept review. Unless and until the Supreme Court decides to review the case, the current Benson decision will remain binding law.

As previously reported, there are also two other cases pending at the Second District Court of Appeal on the same issue, Vilkitis and Forzetting. We understand that the decisions in those cases are expected in early June. While those decisions will likely not be issued in time to affect whether the Supreme Court decides to hear the Benson case, the outcome of those cases may keep this issue alive for many months to come. We will continue to update this issue as developments occur.


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The Mullen & Filippi Bulletin is reprinted with the permission of the law firm.
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