Home   Federal Cases   State Cases   News   Search   Cart   Log In 
 
Search 591,343 Cases and Articles on TJV!
 
California State Categories







Kroger Company v Workers‟ Compensation Appeals Board

Case No. B239771 (CA Dist. 2 Ct. App., Oct. 30, 2012)

The Rehabilitation Unit of the Division of Workers‟ Compensation (Rehabilitation Unit) awarded an injured employee a vocational rehabilitation maintenance allowance on November 7, 2007. The employer, The Kroger Company (Kroger), through its adjustor, Sedgwick CMS (Sedgwick), filed its notice of appeal on November 27, 2007. However, the workers‟ compensation administrative law judge (WCJ) and the Workers‟ Compensation Appeals Board (WCAB) concluded that the appeal had not been perfected because Sedgwick had not also filed a Declaration of Readiness to Proceed, a document which we describe more fully below.

Whether the appeal was perfected is crucial to the parties herein. As we explain in our opinion, the vocational rehabilitation program was repealed as of January 1, 2009. If an appeal of a decision of the Rehabilitation Unit was still pending as of January 1, 2009, that decision, not being final, could not be enforced after that date. On the other hand, if a decision of the Rehabilitation Unit entered prior to January 1, 2008 was final (and is not on appeal) before that date, the award is enforceable.

We conclude that the Declaration of Readiness to Proceed was not required to perfect the appeal from the decision of the Rehabilitation Unit and we therefore annul the WCAB‟s decision.

We granted the petition for review filed by Kroger and Sedgwick in order to set aside the WCAB‟s erroneous decision and also because the vitality of appeals taken from decisions of the Rehabilitation Unit prior to January 1, 2008 appears to surface from time to time, even though the scheme of vocational rehabilitation has been repealed. Why this issue can arise after the repeal of the underlying program is explained in our opinion.
 

 

Judge(s): Jeffrey W. Johnson
Jurisdiction: California Court of Appeals, Second District
Related Categories: Employment
 
Trial Court Judge(s)
Richard Shapiro

 
Court of Appeals Judge(s)
Victoria Chaney
Jeffrey Johnson
Frances Rothschild

 
Appellant Lawyer(s) Appellant Law Firm(s)
Louis Larres Bradford & Barthel

 
Appellee Lawyer(s) Appellee Law Firm(s)
Jaclyn Shandler Law Offices of Shandler & Associates

 

CUSTOM EMAIL ALERTS!

With your FREE registration, you can select an unlimited number of Alert categories for daily, weekly or monthly deliveries of the Federal and State Cases most relevant
to you!

Click Here to sign up.

 



Click the maroon box above for a formatted PDF of the decision.
b239771 event, whether as ephemeral apparitions or rules of decision, former labor code section confidently concluded that statutes (and rules) that had been repealed in 2004 were sets forth at some length why the rehabilitation unit‟s award should be set aside. on the the statutory authority for appealing the determination of the rehabilitation unit appeal. on november 7, 2007, the rehabilitation unit awarded rodriguez retroactive signature, that the party filing the form is ready to proceed; the dor also offers an miguel rodriguez. the wcj reasoned that the dor was (or is) essential because failure to file the since we conclude that the dor was not required to perfect the appeal, it is of no in the court of appeal of the state of california designating the record, irremediably voids the appeal. it is only when such a defect has division one following the usage of the parties, we will refer to this document as the “dor.” we say suffers from several deficiencies. it is neither practical nor reasonable, in the first place, johnson, j. bradford & barthel and louis a. larres, for petitioners. means that are closer to the invocation of a literary device than to logic or precedent. the the appeal, with extensive documentation supporting the arguments. appeal had not been perfected because sedgwick had not also filed a declaration of statutes. all the same, a more pedestrian, if not a more appropriate, rationale is to adopt to designate the record in a civil appeal. it simply does not follow from this that if there (wcj) and the workers‟ compensation appeals board (wcab) concluded that the „this section shall remain in effect only until january 1, 2009, and as of that date is cannot be awarded; neither the wcab nor a court has the jurisdiction to award such legislature may revoke a statutory right, such as the right to vocational rehabilitation, in right to appeal, significantly, neither the wcj or the wcab cited any authority, whether since the parties have spilled a great deal of ink over the questions whether section unless a petition is filed with the appeals board within 20 days . . . .” ____________________________ we granted the petition for review filed by kroger and sedgwick in order to set certified for publication. challenge to section 10955, ruling that section 10955 was an appropriate exercise of the the wcj concluded that the appeal was not timely or “proper.” the wcj noted the appeal taken on november 27, 2007 is deemed to be effective. accordingly, an administrative regulation, imposed the further jurisdictional requirement of filing a “attempted,” in that the evidence is in conflict as to whether the dor was actually filed. jurisdictionally to invalidate an otherwise valid notice of appeal to be completely without to give section 10955 a jurisdictional effect. while the failure to file a dor may have repealed, unless a later enacted statute, that is enacted before january 1, 2009, deletes or readiness to proceed, a document which we describe more fully below. defect must then be cured; the notice of appeal is not voided by the lateness of the notice vocational rehabilitation maintenance allowance (vrma) from march 10, 2000, the filed with the original notice of appeal filed on november 27, 2007. rehabilitation unit in which it set forth in greater length its arguments on the merits of 10955 spelled out the documents that supported an existing appeal, much like the notice the appeal document was to be hand delivered and he acknowledged that a dor was not was not defective. it was clear and unambiguous and more complete than some, in that it (kroger), through its adjustor, sedgwick cms (sedgwick), filed its notice of appeal on that decision, not being final, could not be enforced after that date. on the other hand, if sedgwick attorney brown was the only witness called. he testified that he directed that sunset date extended before january 1, 2009, or thereafter. the legislature, in effect, provided in part: “appeals from decisions of the division of workers‟ compensation we conclude that the declaration of readiness to proceed was not required to 6 our opinion, the vocational rehabilitation program was repealed as of january 1, 2009. if p. 78.) former labor code section 4645, which governs the timeliness of appeals from law offices of shandler & associates and jaclyn shandler for respondent workers‟ compensation appeals adjudication is already on file, by filing a declaration of readiness and a petition setting a decision of the rehabilitation unit entered prior to january 1, 2008 was final (and is not appeal of the award had to be filed within 20 days from the date the award was served. decisions of the rehabilitation unit prior to january 1, 2008 appears to surface from time as we have reason to know, other than dismissing them irrevocably over technicalities. appeal is defective because the notice designating the record, required by rule 8.121 of “„ghost statutes‟” and therefore operational. (id. at p. 1313; beverly hilton, supra, 176 filing an application, a declaration of readiness, and a petition setting forth the reason 1 rules of decision are based on, and arise from, common law. (civ. code, § 22.2; wcab‟s decision. with the wcab. this remained the wcj‟s thinking upon the filing of the petition for led to a sanction, it is quite another matter to state that the failure to file this declaration merit. january 1, 2009 date, no such statute was ever enacted.” (beverly hilton, at p. 1608.) memorandum in civil litigation and offers nothing of substance, other than the indication “as part of the workers‟ compensation benefits, [labor code] section 139.5 was vocational rehabilitation continued to be available until 2009 for injuries that had v. adj4050189) returning to the procedural account of the case before us, on september 22, 2011, 3 plausible to say that an appeal commences after it has been perfected. that is, section filed 10/30/12 automatically leads to a voiding of the appeal. in fact, it is unprecedented in the realm of subdivisions (b) and (c), shall be commenced as follows: [¶] (1) if an application for filing the dor is ready to proceed with the hearing. the conceptual connection between the rehabilitation unit of the division of workers‟ compensation the perfection of the appeal by filing a notice of appeal and a party‟s indication that the industrial injuries.” (beverly hilton hotel v. workers’ comp. appeals bd. (2009) 176 accompanied by a dor. the wcj ruled that section 10955 required the filing of a dor. whether the appeal was perfected is crucial to the parties herein. as we explain in while section 10955 states how an appeal is “commenced,” it is perfectly appeal has been filed, the appeal has been perfected. that is, the taking of the appeal is adopted this approach and have followed it. (ibid.) according to the wcj, there was no clear indication that the dor had ever been filed administration of the vocational rehabilitation program appears to have been resolved by 7 enacted in 1965 to provide for vocational rehabilitation programs in order to restore 10955, it does not conflict with labor code section 4645 and that the wcab certainly to promulgate section 10955, we close with the observations that, as we construe section (rehabilitation unit) awarded an injured employee a vocational rehabilitation was no dor, the notice of appeal was jurisdictionally defective. from a pragmatic assuming that this was the purpose of section 10955, there is absolutely nothing in the these repealed provisions still have an important role to play. section 10955 imposed no time limits and allowed the appellant to set the pace of the vocational rehabilitation awards that were final by january 1, 2009, can be repealed in 2004 and reenacted with the proviso that it would be in effect only until november 28, 2007, it filed, or attempted to file, a declaration of readiness to proceed; appeal of the determination of the rehabilitation unit dated the legislature provided for the possibility of a later statute that „deletes or extends‟ that the decision of the workers‟ compensation appeals board is annulled and the cause is ghosts that are “„doomed for a certain term to walk the night‟” and, having cited the bard, to time, even though the scheme of vocational rehabilitation has been repealed. why this chaney, j. an appeal of a decision of the rehabilitation unit was still pending as of january 1, 2009, preserved or saved vocational rehabilitation claims for nearly five years, but did not save in his opinion that the first notice of appeal, filed on november 27, 2007, was not the problem created by the repeal of statutes and rules that are necessary for the on appeal) before that date, the award is enforceable. iii. the appeal was perfected by the notice filed on november 27, 2007 dor “would necessarily cause delay that [section] 10955 was meant to minimize.” even the basis for filing a dor when appealing a decision of the rehabilitation unit also stated the grounds for the appeal. and it is also true that the notice filed on proceedings to review a decision of the workers‟ compensation appeals provisions, in 2004. section 10955 has also been repealed. as is apparent, however, which case the revocation, barring a savings clause, extinguishes that right. (id. at board. richard shapiro, administrative law judge. annulled and remanded. discussion section 139.5, the legislature added subdivision (k), which stated, „this section shall ultimately resulted in staying the appeal until the defect was cured, or perhaps may have in sum, we find the wcj‟s and the wcab‟s theory that section 10955 operated 1611.) nonetheless, if, as could happen, an appeal was taken prior to january 1, 2009, on november 27, 2007, sedgwick filed a document captioned “petition for november 27, 2007 was timely. entered on november 7, 2007. the parties are to bear their own costs in these 2 an injury to his left knee on november 24, 1999 in the course and scope of employment. respondents. appeal. if a defect can be cured, it makes no sense to impose the draconian, even perspective, a defect in the section 10955 documents could in most cases be cured; disposition respondent miguel rodriguez, while employed as a grocery manager, sustained extends that date.‟ [citation.] there was no newly enacted statute, nor was the effective the california rules of court to be filed 10 days after the notice of appeal, is late or has was former labor code section 4645, subdivision (d), which provided that “[a]ny apply only to injuries occurring before january 1, 2004.‟ it also added in subdivision (l), ascribing to the dor a jurisdictional effect makes even less sense when one the wcj‟s conclusion that section 10955 imposed a jurisdictional requirement reconsideration. in ultimately denying reconsideration, the wcab rejected the injured workers to suitable gainful employment for maximum self-support after their on the same day that sedgwick filed the aforesaid amended notice, i.e., on 5 he apparently sustained a second injury on december 30, 1999; both injuries were not been filed is not a reasonable position. if the notice designating the record is late, that v. workmen’s comp. appeals bd. (1972) 6 cal.3d 860, 864–865) and determine de novo 4 considers what the dor contains. it is nothing more than an indication that the party text of section 10955, or any other provision that we know of, that warns the unwary perfect the appeal from the decision of the rehabilitation unit and we therefore annul the questions of statutory interpretation. (western growers ins. co. v. workers’ comp. november 27, 2007. however, the workers‟ compensation administrative law judge 2 we are not bound by determinations of questions of law by the wcab (dimmig statute, rule or even a wcab decision, for the proposition that section 10955 was (or is) procedural history litigator that the failure to file this routine form will result in the irremediable loss of the (w.c.a.b. nos. adj2065496, not been cured, after notice of the defect, that the sanction may be a dismissal. even the wcj did not find, and apparently it was not contended, that, considered by the matter came on for hearing before the wcj. the sole issue to be decided was the wcab‟s authority to promulgate this rule. i. vocational rehabilitation determination or recommendation of the office of benefit determination shall be binding reiterate the scholarly exposition in beverly hilton of the fundamental principle that the petitioners, punitive, sanction of a dismissal of the appeal. the wcj‟s conclusion, adopted by the wcab, was that section 10955, which was maintenance allowance on november 7, 2007. the employer, the kroger company november 7, 2007.” this document is really more than a notice of appeal in that it admitted and involved as employer a predecessor or subsidiary of petitioner kroger. rothschild, acting p. j. that the party filing the dor is ready for the hearing or, as in this case, the hearing of the cal.app.4th 1597, 1604 (beverly hilton).) however, labor code section 139.5 was ii. the ghost statutes cal.app.4th at pp. 1610–1611, citing inter alia hamlet i, v.) the appellate courts have it is not for us to commit a literary solecism and reject the concept of ghost for the appeal.” vrma to continue beyond november 7, 2007. the notice of the award stated that an we concur: had the authority to promulgate section 10955. inoperative because another document was not filed on time or was defective. dor.2 this conclusion does not square with usage, common understanding or logic; nor common understanding is no different. in our opinion, to say that a notice of the dor is a preprinted form on one page that in substance states, over counsel‟s usage is that an appeal has been taken when the notice of appeal has been filed. certified for publication second appellate district january 1, 2009, “„and as of that date is repealed,‟” unless that date would be extended by a rule with a savagely jurisdictional effect. there are, in fact, ways of expediting appeals, moment when or whether the dor was filed. proceedings. when the notice of appeal is filed. (9 witkin, cal. procedure (5th ed. 2008) appeal, § 17, the 2004 statutory enactments dealing with vocational rehabilitation: “in reenacting timeliness of the appeal of the november 7, 2007 decision of the rehabilitation unit. while a number of additional documents are required for an appeal, once the notice of appellate procedure that failing to file a supporting document, such as the notice 4645 and former section 10955 apply to this case. decisions of the rehabilitation unit, was repealed, along with a number of other aside the wcab‟s erroneous decision and also because the vitality of appeals taken from appeals bd. (1993) 16 cal.app.4th 227, 233.) wcab in godinez v. buffets, inc. (2004) 69 cal.comp.cases 1311 invoked hamlet‟s rodriguez filed two workers‟ compensation claims. rights. (beverly hilton, supra, 176 cal.app.4th at pp. 1610–1611.) there is no need to is it supported by the text of section 10955. very next day, sedgwick filed an amended petition for appeal of the determination of the beverly hilton, supra, 176 cal.app.4th 1597 aptly summarizes the net effect of enforced but those that have not vested by that date, i.e., were not final by that date, board and miguel rodriguez, 9 forth the reason for the appeal; [¶] (2) if no application for adjudication is on file, by a statute enacted prior to january 1, 2009. (beverly hilton, at p. 1602, fn. 2.) pp. 1064–1068.) 10955 conflicts with labor code section 4645 and whether the wcab had the authority party is ready for the hearing escapes us; there is no such connection. was former california code of regulations, title 8, section 10955 (section 10955), which opportunity to request a settlement or other like conference. it is much like the at issue rehabilitation unit or an arbitrator appointed pursuant to labor code sections 4645, itself, there was any defect in the notice of appeal filed on november 27, 2007. in fact, it nonfinal vocational rehabilitation rights as of or past january 1, 2009. as noted, although then, however, the appeal may be reinstated after the defect is cured. designating the record. it would be chaotic if a notice of appeal would become occurred prior to january 1, 2004. (beverly hilton, supra, 176 cal.app.4th at pp. 1610– the kroger co. et al., the repealed statutes and provisions as rules of decision to be used by the courts.1 in any see generally 9 witkin, cal. procedure (5th ed. 2008), appeal, § 484, pp. 544–545.) issue can arise after the repeal of the underlying program is explained in our opinion. signaled by the filing of the notice of the appeal. as witkin puts it, an appeal is perfected 8 remanded with direction to vacate the award of vocational rehabilitation allowance


All Content © 2007-2012 The Judicial View, L.L.C. All Right Reserved.
About The Judicial View ®  | Privacy Policy   |  Terms of Use   |  Contact Us  |  Advertise