Jun
12
2009
0

Why did the WCAB in Weiner kill vocational rehabilitation?

WCAB: Throwing babies out with the bathwater since 1965

The WCAB: Throwing babies out with the bathwater since 1965

For context, its best to see the prior post about the WCAB’s Weiner v. Ralph’s (en banc) decision.  There’s even a link to the Weiner v. Ralphs (en banc) decision for download – just so you can play along at home.

The question in the title of the post is really a question about the WCAB’s rationale – not their end legal justification behind Weiner.  I believe the Weiner case hints that the WCAB is going to go the other way and uphold their rulings in Almaraz/Guzman and Ogilvie.

However, I think the WCAB’s rationale for ending vocational rehabilitation was because of the potential for enormous retroactive vocational rehabilitation maintenance allowance awards at the temporary total disability rate outside the cap (VRTD).[1][2]

  1. Photo courtesy of Stephane Raymond []
  2. You see, I’m suggesting that the bathwater is VRTD and the baby itself is vocational rehabilitation.  Kinda kills the metaphor, eh? []
Jun
11
2009
2

Weiner v Ralphs (en banc): Vocational Rehabilitation Ends

Weiner v. Ralphs spells the end of rehab

Weiner v. Ralphs spells the end of rehab

The Workers’ Compensation Appeals Board recently solicited amicus briefs regarding the Weiner v. Ralphs case.  After review of the amicus briefs on the topic of the repeal of Labor Code Section 139.5 and vocational rehabilitation, the WCAB has just issued their en banc opinion.[1]

Download a copy of Weiner v. Ralphs (en banc) right here:

Obviously, you’ll need to read and interpret Weiner v. Ralph’s for yourself.  Here’s the Board’s own summary:

  1. The repeal of section 139.5 terminated any rights to vocational rehabilitation benefits or services pursuant to orders or awards that were not final before January 1, 2009
  2. A saving clause was not adopted to protect vocational rehabilitation rights in cases still pending on or after January 1, 2009
  3. The vocational rehabilitation statutes that were repealed in 2003 do not continue to function as “ghost statutes” on or after January 1, 2009
  4. Effective January 1, 2009, the WCAB lost jurisdiction over non-vested and inchoate vocational rehabilitation claims, but the WCAB continues to have jurisdiction under sections 5502(b)(3) and 5803 to enforce or terminate vested rights; and
  5. Subject matter jurisdiction over non-vested and inchoate vocational rehabilitation claims cannot be conferred by waiver, estoppel, stipulation, or consent.

What does Weiner v. Ralph’s mean to you?

  1. Vocational rehabilitation is gone unless there is a “vested” right by way order that became final prior to 1/1/2009.
  2. If you already have a final order for vocational rehabilitation, the WCAB can still hear a dispute.
  1. Photo courtesy of larryfishkorn []
Apr
06
2009
1

Ogilvie, Almaraz, & Guzman: Reconsideration Granted! Amicus Briefs Allowed!

Need more time to think about Ogilvie, Almaraz, and Guzman?

Need more time to think about Ogilvie, Almaraz/Guzman?

Sometimes even the WCAB needs more time to think.[1]

On March 26, 2009, the director of the Department of Industrial Relations, John C. Duncan, issued a letter to the entire Workers’ Compensation Appeals Board asking them to vacate their own decisions and solicit argument and amicus briefs.  Here’s a copy, courtesy of WCExec.com, the Letter from Director of DIR to WCAB re: Ogilvie and Almaraz/Guzman (3/26/2009).

On Monday April 6, 2009 the WCAB issued three Orders Granting Reconsideration and Order Allowing Amicus Briefs (en banc) in Ogilvie and Almaraz/Guzman.  For your review:

What does the Order Granting Reconsideration of Ogilvie and Almaraz/Guzman mean for you?

    1. Ogilvie and Almaraz/Guzman are still the law.  Despite Commissioner Aghazarian’s two concurring opinions, the WCAB did not issue a stay of either Ogilvie or Almaraz/Guzman.
    2. The WCAB has granted SCIF’s petition for reconsideration in Almaraz, granting reconsideration on their own motion in Guzman, and the parties’ petitions for reconsideration in Ogilvie.  They have granted reconsideration on these cases to, “afford us a sufficient opporutnity to study the issues.”[2]
    3. Any interested party may file an amicus brief no later than May 1, 2009 at 5pm.
      1. Photo courtesy of radiospike photography []
      2. Hence, the “The Thinker” reference above… []
      Apr
      01
      2009
      1

      Suggestions for the Ogilvie Calculator

      Thank you for the feedback!

      Thank you for the feedback!

      I was recently sent feedback about the Ogilvie DFEC rebuttal calculator on this website. [1]  Here’s how I’ve incorporated that feedback:

      1. Inputs. The calculator results repeats the inputs with the results.  This ensures that the answer provided gives you enough context when showing the calculation to the other side or when you go back to review your file.
      2. Email. You can now e-mail your calculations to yourself.
      3. Links. I’ve added a link to the various Employment Development Department and U.S. Dept of Labor, Bureau of Labor Statistics inside the calculator itself.  It doesn’t automatically obtain the information, but hopefully you will find this helpful.

      There are two other issues I’m thinking about:

      1. An easy way to pull up the FEC rank of a particular body part.  Its kind of a pain to look up the body part, find the FEC rank, and then enter that into the calculator.  I’m thinking ways to simplify this process.  This shouldn’t be too bad to write.
      2. Rating using the Ogilvie DFEC adjusted whole person impairment.  This one will prove to be a difficult one to write in an intuitive fashion.

      How would you change these calculators?  What else would you like to see?  What do you hate about them?  Shoot me an e-mail or leave a comment!

      1. Photo courtesy of biketrouble []
      Mar
      28
      2009
      2

      New Ogilvie DFEC Rebuttal Calculator feature!

      Getting an upgrade!

      Getting an upgrade!

      Late last week a user asked for a new feature.[1]  He wanted to be able to perform the Ogilvie DFEC rebuttal calculation and have the results e-mailed to him.[2] Well, I built it![3]

      To e-mail yourself a calculation, perform the calculation as normal.  When the website returns your calculation, it will say “E-mail Me!”  Just click that button and it will send an e-mail to the address you used to register for this website.

      However, here’s the cool part:  I’ve installed this new e-mail system into every calculator! [4] No more having to copy and paste!  Just click one button and your calculation will show up in your inbox![5]

      Although I intend this to be a paid-subscription-only feature, I am going to leave it open for all users while I get some feedback.  So, what do you think?  Please leave a comment or shoot me an e-mail!

      1. Thanks Dennis! []
      2. Photo courtesy of Vernhart []
      3. Why, what did you do with your Saturday morning? []
      4. I haven’t installed it in some of the EAMS lookup functions []
      5. If you filled in the boxes for Applicant, WCAB #, and File #, it will include this information in your e-mail as well.  This is only for your convenience and not a requirement. []

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