RTGR Wins at CA Court of Appeal
- June 23rd, 2021
- Lauren Zalona
- No comments
RTGR Law LLP secured a victory at the California Sixth District Court of Appeal, annuling an order issued by the Oakland WCAB regarding the start date of a cost of living adjustment (“COLA”) to an award of permanent total disability. This decision marked the long-awaited conclusion of a claim that spanned nearly 20 years, and which involved complex medical and legal issues related to permanent and stationary dates, permanent disability rating schedules, and the retroactive application of legislative changes to the Labor Code.
The underlying claim involved a municipal engineering inspector who alleged a low back injury on August 19, 2003, resulting from a slip and fall at a construction site. After multiple periods of temporary disability and a return to full duty, the applicant elected to retire approximately six years after the date of injury. He continued to receive medical treatment for his injuries beyond the date of his retirement.
The applicant was examined by a Qualified Medical Evaluator and was declared permanent and stationary as of January 10, 2011. The applicant worker later received back surgery in 2011. A second back surgery was performed in 2013, and a third surgery was performed in 2015.
The parties subsequently reached an agreement to have the injured worker evaluated by an Agreed Medical Examiner. The AME determined that the injured worker had again reached permanent and stationary status as of November 16, 2016. It was also determined that applicant was totally permanently disabled.
The WCJ awarded applicant TD benefits from the date of his first back surgery on August 11, 2011, through the date the AME declared him permanent and stationary on November 16, 2016. The WCJ also found that the injury caused 100% PD, and determined that applicant was entitled to annual COLA’s on his total PD benefits pursuant to Labor Code section 4659(c). Citing Duncan v. Workers’ Comp. Appeals Bd. (2009) 179 Cal.App.4th 1009 (Duncan), the WCJ also found that since the QME declared applicant permanent and stationary in May 2011, his first COLA was due on January 1, 2012, and every January 1 thereafter.
RTGR petitioned for Reconsideration and argued that the WCJ erred in ordering the COLA to start on January 1, 2012, as Duncan was overruled in Baker v. Workers’ Comp. Appeals Bd. (2011) 52 Cal.4th 434, 437 (Baker), eight years before the WCJ made his award. The WCJ’s award of COLA’s during the time that applicant was receiving TD contradicted the holding in Baker.
The WCJ recommended granting Reconsideration for the limited purposed of correcting a typographical error in his findings and award regarding the end date for the TD award. The WCJ did not acknowledge that Duncan had been overruled or otherwise respond to our argument regarding Baker, but instead cited two WCAB decisions in support of the award. Based on the holdings in Brower v. David Jones Construction (2014) 79 Cal.Comp.Cases 550 (Brower) and Vertis Communications v. Workers’ Comp. Appeals Bd. (2019) 84 Cal.Comp.Cases 427 (Garietz), the WCJ reiterated his holding that the COLA’s commenced on January 1, 2012. The WCAB granted Reconsideration and adopted the WCJ’s report and recommendation.
RTGR filed a Petition for Writ of Review with the Sixth District Court of Appeal. In our petition, we argued that the WCAB erred by finding that the COLA commenced on January 1, 2012, as applicant was not permanent and stationary until November 16, 2016. Given that applicant was still TD in 2012 and was not entitled to receive PTD benefits until November 16, 2016, the WCAB should have ordered the COLA to commence on January 1, 2017. We concluded that the WCAB’s order was contrary to Labor Code section 4659(c) and the California Supreme Court’s holding in Baker, as the relevant legislative changes to the Labor Code did not apply retroactively to dates of injury prior to January 1, 2005.
In a unanimous decision issued by Administrative Presiding Justice Mary J. Greenwood, the Sixth District Court of Appeal held that the WCAB’s decision regarding the start date for the section 4659 COLA’s was clearly erroneous. The court agreed with our position that the WCAB erred by failing to follow binding California Supreme Court precedent in Baker. The court also noted that rather than cite Baker in his opinion on decision in 2020, the WCJ relied on Duncan, which was superseded by grant of review in 2010 and overruled by Baker in 2011. This error was ignored by the WCJ and the WCAB even after it was briefed in our petition for reconsideration.
In conclusion, the court determined that the WCJ’s decision relied on case law that had been overruled, and his report on reconsideration failed to consider binding Supreme Court precent in Baker and instead cited WCAB decisions that did not apply or are factually distinguishable. The court held that the WCJ erred under Baker when he ordered us to begin paying COLA’s on the PTD benefits while applicant was still receiving TD. Therefore, the court annulled the WCAB’s decision with regard to the commencement date on the COLA’s and denied applicant’s request for an award of supplemental attorney fees in connection with the writ proceeding.
Despite presenting the WCAB with binding precedent from the highest court in California in support of our position, our Petition for Reconsideration continually fell upon deaf ears. This case highlights the importance of presenting the proper issues before the Court of Appeal to secure a favorable outcome and to ensure that the fundamental principle of legal precedent is not ignored in the workers’ compensation system. If you have any questions about the appeal process in workers’ compensation claims, please reach out to your local RTGR Office.