Welcher Arguments Set
The California Supreme Court has set the oral arguments in the Welcher/Lopez/Brodie consolidated cases for April 3, 2007 in Los Angeles at 9:00 am. The oral arguments will be at the Ronald Reagan State Office Building , 300 South Spring Street, Third Floor, Los Angeles, CA. Each side is limited to 30 minutes of oral argument which includes any rebuttal. Even thought there are multiple parties involved and 5 amicus curie briefs, only two attorneys will be allowed to argue for each side.
A very brief review of a couple of the Supreme Court's recent opinions showed that the time frame from oral argument to decision was a matter of 3-4 months which certainly suggests that we may have a decision on this issue before the end of the year possible before the end of summer. Use the link on the case names above to find the Supreme Court Calendar. Note that the Court's name for the consolidated cases is under Brodie v W.C.A.B.
Costa Reconsideration Petition Granted for Further Study:
The W.C.A.B. has granted the defendant's Petition for Reconsideration in the Costa v Hardy Diagnostic and S.C.I.F. en banc decision. In the original decision the W.C.A.B. had ruled against the applicant's appeal of the validity of the new PD rating schedule, held the schedule was rebuttable and ordered reimbursement for the VR costs incurred by applicant even though the W.C.A.B. found the testimony was essentially useless. The order for reimbursement was in part predicated on the W.C.A.B. determination that the defendant had not objected to the testimony of the VR counselor and therefore had waived the fees.
Defendant has appealed the issue of payment of the VR expert fees arguing that there had been an objection and that the issue was not waived. The W.C.A.B. has unanimously granted the defendant's Petition to allow time for further study, citing the statutory time constraints to addressing the Petition. The other issues in this case, the ability to rebut the rating schedule and the validity of the PDRS were not at issue in this Petition and those issue would appear to still be governed by the original en banc decision.
A copy of the Order Granting Reconsideration is attached hereto. Thanks to William Anderson from S.C.I.F. for providing this information and a copy of the decisions.
When this decision came out it was my observation that the W.C.A.B.'s holding that the rating schedule was rebuttable was likely an inevitable ruling given the language of Labor Code § 4660 that the schedule is "prima facia" evidence of the injured worker's disability. However, I was critical of the W.C.A.B. decision to award the expert witness fees where the ruling found that the evidence was not relevant or useful to rebut the schedule. Hopefully, the W.C.A.B. will give the industry better guidance on when such costs are reimbursable and not the rather blanket rule suggestion that regardless of how irrelevant or useless testimony might be, the defendant is obligated to pay for it.
Richard M. Jacobsmeyer
Certified Specialist, Workers' Compensation Law
The State Bar of California Board of Legal Specialization
SHAW, JACOBSMEYER, CRAIN & CLAFFEY
475 – 14th Street, Suite 850
Tel: (510) 645-7172
Fax: (866) 563-0092