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04/09/07 CAAA Cringes as WCAB Reverses 4-3 En Bancs 05/25/07 First Appellate Court Opinion Cements WCAB En Bancs 05/04/07 Justices Say SB 899 |
| CAAA Cringes as WCAB Reverses 4-3 En Bancs:
04/09/07
The California Workers' Compensation Appeals Board reversed two narrow en banc decisions about permanent disability ratings and disappointed applicants' attorneys called the pre-Easter announcement "Black Friday." A board majority of Chairman Joe Miller, James C. Cuneo, Frank Brass and Alfonso Moresi voted 4-3 to reverse the Jan. 24 decisions in Pendergrass and Baglione, this time adopting what had been the minority opinions in both of those en banc rulings. New WCAB Commissioner Moresi, who replaced Merle Rabine earlier this year, cast the swing votes this time. Rabine, who was considered the most liberal member of the board during his term, cast the swing votes in the January action and left the board when his term expired. Moresi's votes reversed the board's previous position on the questions of what qualifies a claimant's pre-2005 injury to be rated under the old Permanent Disability Rating Schedule. "I think a lot of people feel it is a political decision as opposed to a legal decision," President Linda Atcherley of the California Applicants' Attorneys Association said Friday. Attorneys posting on CAAA's bulletin board after the Good Friday announcement had their own name for it: "Black Friday." The WCAB explained that its reversals mean: * In Pendergrass II that if the last payment of temporary disability indemnity was made for any period of temporary disability ending before Jan. 1, 2005, then the 1997 Permanent Disability Rating Schedule applies to determine the extent of permanent disability. * In Baglione that in order for the 1997 Permanent Disability Rating Schedule to apply to a pre-1/1/05 injury claim under Labor Code Section 4660(d), the existence of permanent disability must be indicated in either a pre-2005 comprehensive medical-legal report or a pre-2005 report from a treating physician. Defense attorney Richard "Jake" Jacobsmeyer said in an e-mail Friday that the 4-3 vote for reversal is binding on trial courts for now. "While these decisions are certainly good news for most employers, carriers and third-party administrators, we should not assume that these decisions are the final word on this issue," Jacobsmeyer said. The narrow vote and the board's granting of reconsideration "only make the likelihood of certain appeals to the Appellate Court being granted for further review and study," he added. The WCAB defended its decision to reconsider, writing in the new Pendergrass I opinion that no no statute, rule, or case law exists that precludes the en banc Appeals Board from revisiting and reversing a prior Appeals Board en banc decision. David Rockwell, CAAA member and past president of the group, on learning of the reversals said flatly, "We had an en banc and it shouldn't change." Rockwell charged that the board violated the principle of stares decisis -- that the precedent decisions are to be followed by the courts -- in departing from the former board's narrow 4-3 decisions the other way. The WCAB majority wrote Friday that "the principle of stare decisis does not apply to this case because a timely and proper petition for reconsideration was filed and, therefore, our prior en banc is not final as to these parties." Attorneys on both sides said that there are other Permanent Disability Rating Schedule cases moving through the appellate courts. Atcherley of CAAA even said it would have been naive to think the WCAB en bancs wouldn't be challenged. Defense attorney Jacobsmeyer saw an immediate bearing on settlements in rating cases, though he cautioned that the appellate courts are the wild cards in the long run. "At the very least one has to consider that the bargaining positions tilt a bit more toward defendants at this point," he said. In a related development Friday, the 1st District Court of Appeal, 3rd Division granted Zenith Insurance Co.'s petition for writ in another permanent disability rating schedule case where the applicants' attorney cited Pendergrass to support a WCAB panel's finding for his client. Applicants' attorney Tim Timmons said Friday that part of his argument for upholding the old schedule award to his client for an exception under Labor Code Section 4660(d) was the WCAB's en banc holding in Pendergrass. "Fortunately, I didn't rely just on that in my petition," Timmons said. "We have a bright line comported with a long history of statutory construction that statutes are not retroactive in their effect," he said, a point he intends to raise with the Court of Appeal. That case is Zenith Insurance Co. v. WCAB (Azizi), A116761. To read the en bancs opinions, click on the sidebars to the right.
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