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WC Odds & Ends 

From: Jake Jacobsmeyer []
Sent: Monday, November 27, 2006 7:18 PM
To: Jake Jacobsmeyer
Subject: WC Odds & Ends

WC News


In addition to the case I reported on earlier today (Six Flags v WCAB) there are a couple of other items of significance from the Courts of Appeal that are of interest to the general Workers' compensation community:


ALDI Writ Denied:


The First Appellate District has denied the applicant's Petition for Writ of Review in the the W.C.A.B.'s en banc decision in Aldi v W.C.A.B.  The Court's memo with the denial indicated that the issue was ripe for review and that the denial was on the merits of the case, therefore not based on any procedural grounds. 


"The June 26, 2006 en banc decision of the Workers' Compensation Appeals Board is reviewable as a final order affecting an issue critical to petitioner Elizabeth Aldi's claim for benefits.  (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1075.)  The petition for writ of review is denied on its merits. "


While the Applicant Attorney may petition the Supreme Court for a hearing, it seems unlikely that this issue will draw much interest from the court.  Unfortunately the decision in Aldi does not help to resolve the current favorite theory that is being advocated by Applicant Attorneys; followed by some WCJs and has found endorsement from at least 4 commissioners.  This theory, first enunciated by the W.C.A.B. in the opinion on Reconsideration in the W.C.A.B. panel case of Shayesteh v. Abbott Laboratories and later repeated by Roman v. Larse Farms, Inc., State Compensation Insurance Fund (both opinions written by Commissioner Caplane.  Roman had a strong dissent by Commissioner Cuneo) holds that where TD commenced prior to 1/1/05 that the "legal obligation" to provide notice under Labor Code § 4061 exists (Labor Code § 4061 requires a notice when TD stops for whatever reason).  While I have it on excellent authority that Shavesteh will be appealed and it is likely that Roman will also, we do know at this time that at least 4 of the 7 commissioners have adopted the theory.


This is clearly a "result" driven analysis in part fueled by the rather overwhelming distaste of the use of the AMA guides in many orthopedic cases and the desire to avoid use of the that schedule whenever possible.  While this theory, in my opinion, is legally thin and ripe for reversal at the higher levels, it is important to recognize that 4 commissioners will follow it and therefore the odds of winning this issue on Reconsideration is less than 50%. I have had several WCJ's express grave reservations about the lack of legal analysis to support the W.C.A.B.'s decisions on this issue but they are reluctant to reject the theory outright given that the majority of the W.C.A.B. seems to be on board with it.  If you wish to resolve cases, consideration will have to be given to the use of the old schedule in such cases.  If you intend to contest a decision that applies the pre-1/1/05 PDRS to such a case, you should be prepared to take the issue to the Court of Appeal also until we have more definitive authority.


Gomez v WCAB


This us an unpublished decision of the 5th Appellate District that issued today, however it is on an issue that has no clear appellate authority and should be published.  Hopefully there will be enough commentary to the Appellate Court to convince the court to publish this important decision.


The issue in Gomez is the applicant's right to TTD after 5 years from the date of injury where the period of TTD commences after the 5 year jurisdictional limitation has run.  The applicant received and award of PD of 64% for an August 1999 injury.  A Petition for New and Further was filed prior to the expiration of the 5 year time limit from the date of injury, however TTD commenced after that date.  The WCJ awarded TTD holding, in effect, that the Petition served as a placeholder for the W.C.A.B. to award TTD.  The W.C.A.B. reversed the WCJ's award ruling that the W.C.A.B. does not have jurisdiction to award the TTD when it commenced beyond 5 years from the date of injury even with a timely Petition to Reopen.


The Court of Appeals agreed with the W.C.A.B.  In a fairly short opinion the Court noted the Supreme Court holding in Nicklesburg v W.C.A.B. that the W.C.A.B. did not have jurisdiction to award TTD beyond 5 years as part of an award of Medical Care.  The Court further noted that in Hartsuiker v W.C.A.B., the Appeals Court held that the W.C.A.B. did not have the authority to reserve jurisdiction to itself to award TTD where there TTD itself commenced beyond the W.C.A.B.'s jurisdiction.  Interestingly the Court did not cite any of the other existing authority for the holding that it made (Beck v W.C.A.B. 65 CCC 845- Holding that if the W.C.A.B. did not have jurisdiction to reserve jurisdiction to itself, it made no sense to allow an injured worker to do so by filing a Petition, & Fekkers v. Workers' Compensation Appeals Board 67 Cal. Comp. Cas 92 with a similar holding).


This case should be published because it is the first appellate authority that is directly on point on this issue.  Without publication, there is no binding authority to prevent another WCJ from issue a similar decision and requiring a defendant to take the issue up again hoping to get the next level to be willing to review the issue.  We even have an example of a case where the W.C.A.B. awarded TTD where the period commenced more than 5 years from the date of injury, ignoring the language in Beck, Nicklesburg and Hartsuiker (See Weeks Drilling and Pump v W.C.A.B. (Sterling) 89 CCC 1615).  Usually cases of first impression on a significant legal point are appropriate for publication and there is no reason, given that this case meets that criterion, that Gomez should not be published.


You can read the Gomez decision by clicking on the hyperlink attached to its name above.



Richard M. Jacobsmeyer*

Richard M. Jacobsmeyer

Certified Specialist, Workers' Compensation Law

The State Bar of California Board of Legal Specialization



475 – 14th Street, Suite 850

Oakland, CA 94612

Tel: (510) 645-7172

Fax: (866) 563-0092

Certified Specialist, Workers' Compensation Law The State Bar of California Board of Legal Specialization

Shaw, Jacobsmeyer, Crain & Claffey, PC
1600 Riviera Avenue, Suite 305, Walnut Creek, CA 94596 Phone:(510) 645-7172 Fax (866) 563-0092

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