For Wishful Thinkers Appeals Court Decisions Are Painful

Saturday, July 16, 2005 | 0

by Charles R. Wear, Attorney at Law

Wishful thinkers are relying on the good graces of the Courts of Appeal and the Supreme Court to overturn the more draconian effects of SB 899, in particular, the new rules on apportionment and the new permanent disability schedule.

They took heart in the WCAB decision in Scheftner v. Rio Linda School District, 69 Cal. Comp. Cas 1281, which held that SB 899 did not apply to cases in which discovery was closed pending trial. Injured workers and their representatives were heartened by this finding which meant that if their cases had passed the mandatory settlement conference prior to April 19, 2004, the older and more liberal rules concerning apportionment would apply.

In the recent decision, Marsh v. WCAB, the Fifth Disctrict Court of Appeals puts another nail in the lid of the coffin burying pre-existing benefits for injured workers. In Marsh, the injured worker's case had been tried and a decision issued before the passage of SB 899. The employer's petition for reconsideration, which was made after the passage of SB 899, opened the case the new apportionment rules. The clear ruling of Marsh says that SB 899 apportionment applies to all cases that have not had their writ of review denied by the Court of Appeals. The effect of this decision will be to grind all pre-SB 899 cases to a halt pending further medical reports.

The court ignored the Scheftner en banc finding stating: "While a WCAB en banc decision is binding legal precedent on all three-member WCAB panels and individual WCJs (Cal. Code Regs., tit. 8, section 10341; Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 1424, fn. 6), it is useful to this court only to the extent it points out the WCAB's contemporaneous interpretation and application of the workers' compensation laws..."

The Marsh decision also confirms the facts of the situation for the wishful thinkers. SB 899 represents, depending on your perspective, a political solution to cut workers' compensation benefits in every area, medical treatment, temporary and permanent disability benefits, and by any means. The court stated "the Legislature declared its intent "to provide relief to the state from the effects of the current workers' compensation crisis at the earliest possible time..."

The Court of Appeals has recognized this legislative intent and has determined to carry it out. Those practioners hoping that the courts will overturn the new permanent disability schedule had better hold off on making down payments on new California real estate. Their cash flow is definitely going to suffer along with the injured workers.

Charles R. Wear is an attorney in the workers' compensation practice of Perona, Langer, Beck, Lallande & Serbin in Long Beach, CA. He has been practicing workers' compensation, mainly representing applicants, since 1990. He also comments on workers' compensation at http://calworkerscomp.info.

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