WCAB Solicits Amicus Briefs on Weiner VR Repeal Case

The WCAB is soliciting suggestions on vocational rehabilitation

The WCAB is soliciting input on vocational rehabilitation

The WCAB has just issued an “Order Allowing Amicus Briefs” (en banc) in the Weiner v. Ralph’s Company case.1 The Weiner case is about the effect of the legislature’s repeal of Labor Code Section 139.5 as of January 1, 2009.  The repeal of this statute may have the effect of terminating all rights to vocational rehabilitation.

For the curious, you can download a copy of the Order Allowing Amicus Briefs (en banc) here:

The Board is allowing until May 11, 2009 for any interested party to file their own amicus brief on these Weiner vocational rehabiltiation issues.

  1. Photo courtesy of Mathoov []

Bench & Bar Committee: Suggestions?

Probably not the WCABs idea of a bench and bar meeting...

"Hi, is this the room for the bench and bar meetings? I brought my brown bag lunch!"

I was recently invited to participate on the Oakland Bench & Bar Committee.  The first meeting of the rejuvenated committee is going to take place tomorrow. 12

The committee includes a wide variety of stakeholders from the community – applicant, defense, lien claimants, and judges.  The purpose of this committee is to foster discussion of issues of concern to the WCAB Oakland district office and the community.


I realize this is short notice, but is there a topic/issue you would like brought up at the bench and bar meeting tomorrow?  Leave a comment or send me an e-mail!

  1. Nothing fancy – everyone’s bringing their own brown bag lunch. []
  2. Photo courtesy of zappowbang. []

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, 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… []

      Smith v. WCAB (California Youth Authority) – Oral Arugment 4-7-2009

      California Court of Appeals, Sixth Appellate District

      California Court of Appeals, Sixth Appellate District

      Just when you thought things couldn’t get any crazier in workers’ compensation than Ogilvie, Almaraz/Guzman, Benson, and XyzzxSJO2.  Yesterday I found out that on April 7, 2009 the case of Smith v. WCAB (California Youth Authority) is on calendar for oral argument.  As with Almaraz/Guzman, Smith v. WCAB dealt with similar legal issues across two particular workers’ compensation cases.  In case you missed it, here’s the court of appeal decision:

      Smith involved an informal denial of medical treatment without a formal petition to terminate medical care under L.C. 4607, after an award of permanent disability. Eight years after Smith’s  award, SCIF refused to authorize epidural injections.  Smith’s attorney sought utilization review, Smith was reexamined by the AME who said the injections were necessary to relieve from the effects of the industrial injury.  Although SCIF then authorized the injections without the need for a hearing, Smith’s attorney sought fees under L.C. 4607.

      The WCJ denied Smith’s attorney’s petition for fess since there was no formal petition to terminated medical care.  The WCAB denied reconsideration on the grounds that SCIF’s was not denying all medical treatment.

      Amar is substantially similar to Smith, except that in Amar the workers’ compensation judge took the extra step of opining that SCIF’s denial of medical treatment was made in good faith, not unreasonable, and not improper.

      However, the 2nd Appellate Court reversed the WCAB in Smith and Amar, stating in relevant part:

      “We see no difference when a carrier informally denies some of the treatment that is a necessary part of medical care previously awarded. This is tantamount to a petition to deny medical care even though the carrier continues to provide treatment for some of applicant’s medical care.”

      “Insurance carriers who fail to provide previously awarded medical care may not avoid attorney fees to successful applicants’ attorneys through the expedient of an informal denial, even when they do so in good faith.”

      I would love to watch the oral argument on this case – but Los Angeles is a bit of a hike for me. 1  I am very very interested to see how this case shakes out.

      1. I last watched oral argument on the Mt. Diablo Unified School District v. WCAB (Rollick) case back on 8/5/2008.  It was particularly interesting for me since I was familiar with the applicant attorney, defense attorney, and facts of that case.  If nothing else, its always fun to watch judges get snarky. []

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