April 06, 2007
W.C.A.B. Issues New En banc Decisions in Pendergrass, Baglione
The W.C.A.B. has issued new decisions in the Pendergrass and Baglione cases each of which has reversed the prior en banc decisions of the W.C.A.B. that issued in January of this year.
Before addressing the merits of defendant's Petition for Reconsideration of the original en banc decisions, the Board addressed the two issues raised on the ability of the W.C.A.B. to review these decisions. The W.C.A.B. concluded that the change in membership of the W.C.A.B. (referring to the replacement of Merle Rabine with Alfonso Moresi) did not prevent the W.C.A.B. from reconsidering these decisions. Citing examples of similar situations in cases before the California Supreme Court where challenges had been raised on rehearing of appeals with changes in the court, the Board determined that there was no legal basis to conclude that the change in membership had any effect on the ability of the W.C.A.B. to consider the defendant's petition for reconsideration on this issue. The Court also rejected the argument that the W.C.A.B. en banc decision was final and could not reviewed. While the decision, when issued, was binding on the W.C.A.B. at trial levels, and on W.C.A.B. panels on reconsideration, it is not binding on the W.C.A.B. when sitting en banc (citing is prior decision in Diggle v Sierra Sands USD). The W.C.A.B. therefore no impediment to its review of these decisions as long as it was sitting en banc again.
In each case the new decision has exchanged the reasoning and rational of the majority and minority opinions along with the 4-3 decisions with Commissioner Moresi being the deciding vote to tilt the prior minority decisions into the Majority. The same 3 commissioners who previously participated in the majority decision now constituted the minority opinion with the same legal reasoning as their prior decision.
In Pendergrass v Duggan Plumbing and S.C.I.F., the W.C.A.B. has now held that the commencement of TTD prior to 1/1/05 does not trigger the use of the pre-1/1/05 PDRS as the obligation to send notice to the injured worker does not arise until TTD terminates under Labor Code § 4061. The W.C.A.B. decision relies on both the plain language of the statute and the expressed legislative intent to apply the provisions of SB 899 at the earliest possible time.
In Baglione v Hertz Car Sales, the W.C.A.B. determined that a Comprehensive medical report, obtained prior to 1/1/05, does not trigger the use of the pre- 1/1/05 PDRS unless the report describes the "existence of permanent disability". The has reversed the prior en banc holding that any comprehensive medical legal report, even if there was no comment on the existence of PD, triggered the use of the old PDRS.
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. The closeness of the W.C.A.B. decisions (all 4 decisions are 4-3 votes) and the reversal of the W.C.A.B.'s holdings only make the likelihood of certain appeals to the Appellate Court being granted for further review and study. For now however, the decisions are binding on trial courts and WCJs, and W.C.A.B. panels, are required to following these two cases in decision issues of Permanent disability and deciding which rating schedule to apply. The applicants in each of these cases are certain to seek appellate review and have 45 days from issuance of the decisions to do so. Both cases are located in the 6th appellate district which seems to be a bit quicker in responding to appellate activity than some of the other districts but the earliest we are likely to know if there will be appellate review of one or both of these cases is going to be at least 4 or 5 months. Even if neither of these cases is heard at the appellate level, there are plenty of other decision on similar issues that are pending and at some point we are almost certain to get an appellate court whose interest is piqued, that the issue will get higher review.
If the court decides to accept these appeals it will probably be another 3-5 months after the grant of the Petition for Writ of Review to obtain a final result. From a practical perspective settlement of cases based on which rating schedule is more likely to be used is still possible as long as the parties recognize that the issue is up in the air. However at the very least one has to consider that the bargaining positions tilt a bit more toward defendants at this point.
The actual decisions can be reviewed by clicking on the case names above.
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