Diggle and the Effect of En Banc Opinions

Saturday, November 5, 2005 | 0

by "Jake" Jacobsmeyer

The Workers' Compensation Appeals Board issued a decision which it has identified as a "significant panel decision"* in the case of Wilma Diggle v. Sierra Sands Unified School District, et al.

The WCAB has provided guidance to the industry on the effect of WCAB en banc decisions while they are pending on appeal at the appellate level, an event that is happening with increasing frequency these days as we all struggle with the interpretations of recent legislative changes under SB 899, SB 228 & AB 227.

In this case the injured worker sustained injury to her spine, which after apportionment, was determined to be 58 percent. The applicant had a prior injury with a 12 percent permanent disability Award. The parties stipulated that the overall level of disability was 70 percent and that the WCAB must, pursuant to Labor Code section 4664, take into account the 12 percent prior Award.

Defendants argued pursuant to the Nabors en banc decision of the WCAB that 12 percent should be subtracted from 70 percent with the overall Award of 58 percent. Applicant argued that the value of 12 percent in dollars should be subtracted from the 70 percent with an overall permanent disability Award of some $94,000.00. (The 12 percent resulted in a permanent disability Award of approximately $56,000.00).

The trial judge ruled that he was bound by the WCAB en banc decision and followed the Nabors decision, subtracting the 12 percent from 70 and awarding the 58 percent with its resulting dollar value.

Applicant appealed arguing that the trial judge's reliance upon Nabors was misplaced as the case was pending on appeal. Applicant argued that since the case was on appeal the Board had authority and discretion to hear and reconsider the decision in Nabors because the decision was not binding at the trial level as a result of the appeal. Counsel for applicant also pointed out that there was a pending appeal in a similar case involving the same issue in the 5th Appellate District in the case of E & J Gallo Winery v. WCAB (Dykes). The court has not yet determined whether to hear the decision in Nabors while the Dykes Petition for Writ of Review has been granted and will be argued shortly.

The Board however determined that:

"Neither the filing of a petition for writ of review in Nabors nor the granting of a writ of review in Dykes, standing alone, changes the legal effect of the Nabors En Banc decision, i.e., Nabors remains the binding precedent on all Appeals Board panels and WCJs."

The Board cited Labor Code section 5956 which provides that the filing of a petition for a pendency of a writ of review shall not stay or suspend the operation of an order decision or Award of the WCAB unless the court before which the petition is filed stays or suspends the order. No such order has been issued in this case.

The court did note the circumstances surrounding its decision in Scheftner v. Rio Linda School District (69 CCC 1281) wherein now at least one Court of Appeal noted that as Scheftner was appealed and review was granted that it was rendered un-citable as authority. The Board however determined that this was mere dicta and therefore not binding. It is the Board's opinion that only a final Award which alters the WCAB and bound decision has an impact of rendering a decision, such as an en banc decision un-citable. The Board also noted that there was a difference between a Court of Appeal determining not to follow a decision of the Appeals Board and the WCAB's trial judges or panels doing so. Trial judges and panels are bound to follow en banc decisions as binding authority. The Courts of Appeals are not bound by en banc decisions of the Board and may accept or reject those conclusions on the basis of their higher appellate authority.

Interestingly, one of the issues that the Board did not note in this case is that the appeal in the Dykes case is actually defendant's appeal and in that case the Board issued a decision which was different from its holding in Nabors and did not subtract the prior percentage of PD from the new award. It seems less unlikely that the decision is Dykes is going to justify a reversal in Nabors unless the Court of Appeal actually upholds the Board's original finding in Dykes.

The Court's discussion of the significance of WCAB decisions and the ability to cite same as authority is relevant in recent actions by the California Supreme Court in the Miceli cases. CIGA appealed from the decision of the Court of Appeals finding that CIGA would be liable in that case. However, the Supreme Court ordered the appellate decision de-published and therefore it is not citable authority in this matter. As pointed out by the Board the Appeals Board's own decision in Miceli which was also an en banc decision was reversed by the Court of Appeals in its decision which is now final. Therefore, pursuant to the Board's rational in Diggle, the decision of Miceli issued by the WCAB en banc is not citable authority since it has now been reversed. Unfortunately this leaves us with the situation that there is no case law which the parties can rely upon to determine their respective rights in many of the temporary employment cases similar to Miceli.

The decision in Diggle should be of significant help in continuing to move cases through the WCAB. Many defense attorneys have reported that WCJs are being confronted by applicant attorneys arguing that WCAB en banc cases should not be followed because of the pending appeals even before there is action by the appellate courts on the Petitions and arguing that the case law is unsettled because the pending appeals. They have argued strenuously that the law is not final and should not be followed. However, until there is some contrary decision which overturns the WCAB en banc decision in Nabors that holding is binding on all trial judges and must be followed by those judges. Therefore, it is not necessary and indeed is inappropriate for trial judges to delay resolutions of cases pending the outcome of these further appeals to the appellate levels.

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* The WCAB website idendifies Significant Panel Decisions as:
"Cases that are identified for dissemination by the WCAB in order to address new or recurring issues of importance to the workers' compensation community. Significant Panel Decisions have been reviewed by each of the commissioners, who agree that the decision merits general dissemination."
Such cases therefore provide significant guidance as to the WCAB's insight into a specific issue but is not "binding" authority on WCJs or WCAB Panels as an en banc decision would be.

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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