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CA Work Comp Board Says No More Voc Rehab

Sometimes no does means no. That’s the message from the Workers’ Compensation Appeals Board, which ruled yesterday that injured California workers who were eligible for vocational rehabilitation benefits but failed to get a final order or award before the January 1 sunset of the statute are no longer entitled to the benefits. Five years ago, the Legislature said there would be no more vocational rehabilitation program after December 31, 2008 and, as the board concluded yesterday, they meant it.

“Unless an injured employee’s vocational rehabilitation rights have become vested under a final order that issued before January 1, 2009, these inchoate and unperfected rights are extinguished and forever lost,” the board wrote in its unanimous en banc decision in Weiner v. Ralphs Company, noting that workers’ comp benefits are statutory benefits that cease to exist once the authorizing statute is repealed. “[T]he repeal of section 139.5 stopped all pending and non-final vocational rehabilitation actions at the point where the repeal found them.”

The board pointed out that the language repealing Labor Code Section 139.5 was clear and unambiguous and the Legislature never took any subsequent action to delete or extend that sunset date or even to include a saving clause.

“By providing in April 2004 that [Labor Code] section 139.5 would not be repealed until January 1, 2009, the Legislature, in effect, ‘saved’ both pending and impending vocational rehabilitation claims for a period of nearly five years,” the board noted. “This gave affected employees a reasonable time within which to avail themselves of vocational rehabilitation before the repeal would take effect.”
The decision has widespread impact as the WCAB’s district offices were flooded with thousands of claims for uncollected VR benefits in the waning days of 2008 and even into 2009. The question of whether the right to VR benefits would extend beyond the sunset date was the focus of two consolidation hearings by Mark Kahn, acting court administrator for the Division of Workers’ Compensation and associate chief judge, but the WCAB stepped in to adjudicate the issue.

“The scary thing about this case is the potential magnitude of what happens if it went the other way. For defendants, claims examiners, employers and insurance companies the problem they would be facing if Weiner went the other way is all of a sudden a case that had been dormant for 5, 10, 15 years is now generating a demand for 50,000 [in VR benefits],” notes one Northern California defense attorney. “They thought the case was dead and gone and now they have to look around and try and figure out if they owe it.”

With an appeal of the case likely, the board was very thorough in its review of the issues and the arguments put forth — both by the parties and in the handful of amicus briefs that were filed in the case. The nearly 30-page opinion also discounted the argument that the VR statutes live on as a “ghost statute,” but it did note that the WCAB retains jurisdiction to enforce or terminate existing VR awards.

So what if anything does the board’s favorable ruling in Weiner mean for the other looming cases at the board, i.e. Almaraz/Guzman and Ogilvie? Some see it as a bone thrown to the industry before it gets the boot again in those two cases. But that’s a discussion for another day.

This is compliments of the Work Comp Executive-wcexec.com

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