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).12
Obviously, you’ll need to read and interpret Weiner v. Ralph’s for yourself. Here’s the Board’s own summary:
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
A saving clause was not adopted to protect vocational rehabilitation rights in cases still pending on or after January 1, 2009
The vocational rehabilitation statutes that were repealed in 2003 do not continue to function as “ghost statutes” on or after January 1, 2009
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
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?
Vocational rehabilitation is gone unless there is a “vested” right by way order that became final prior to 1/1/2009.
If you already have a final order for vocational rehabilitation, the WCAB can still hear a dispute.