PROCEEDING to review a decision of the Workers' Compensation Appeals Board. Annulled. WCAB Case Nos. LAO 671427 (ADJ 1898212) LAO 688269 (ADJ 957820).
The opinion of the court was delivered by: Mosk, J.
CERTIFIED FOR PUBLICATION
Beverly Hilton Hotel (Hotel) petitioned for writ of review of the decision of the Workers' Compensation Appeals Board (Board) finding that respondent Samson Boganim (Boganim) was entitled to vocational rehabilitation benefits under Labor Code*fn1 section 139.5. Effective January 1, 2009, however, Labor Code section 139.5 was repealed. (Stats. 2004, ch. 34, §§ 4, 5.)*fn2 We hold that because the Board's decision was not a final determination of Boganim's right to vocational rehabilitation benefits and because section 139.5 has been repealed, he is not entitled to those benefits. We therefore annul the Board's decision.
FACTUAL AND PROCEDURAL BACKGROUND
Boganim filed two claims for workers' compensation benefits for aninjury due to his employment as a security officer/supervisor at Hotel. Boganim claimed a specific injury on September 3, 1990, and a cumulative trauma injury for the period of July 15, 1986, to November 24, 1991.
On December 15, 2003, the Worker's Compensation Judge (WCJ) found both injuries compensable. On March 4, 2004, Boganim requested vocational rehabilitation services pursuant to former section 139.5. Hotel denied the request, and no services were offered. On February 24, 2005, Boganim filed a request for a determination by the Rehabilitation Unit*fn3 that he was entitled to vocational rehabilitation services and benefits. He based his request on the medical opinion of a psychiatrist, who had determined that Boganim was a qualified injured worker for purposes of vocational rehabilitation services.*fn4 The Rehabilitation Unit denied the request on the basis that the psychiatric claim was not compensable. Boganim made another request on December 13, 2005, for a determination from the Rehabilitation Unit of his entitlement to benefits, this time supported by another medical opinion reporting on Boganim's compensable injuries to his neck and back. Thereafter, on July 21, 2006, the Rehabilitation Unit issued a Determination that Boganim was entitled to vocational rehabilitation benefits and services.
Hotel appealed the Determination of the Rehabilitation Unit. A trial de novo was held at the local appeals board, and the Determination of the Rehabilitation Unit was upheld. In its January 31, 2008, Findings and Award, the WCJ found that the medical report evidenced a prima facie showing that Boganim was presumptively eligible for rehabilitation services as of July 27, 1997. The WCJ also found that Boganim was entitled to a vocational rehabilitation maintenance allowance at the temporary disability rate, pursuant to former section 4642 and former section 139.5, subdivision (2)(d), from July 27, 1998, or until Boganim met with an agreed qualified rehabilitation representative. In awarding retroactive vocational rehabilitation maintenance allowance, the WCJ concluded that Hotel never issued a Notice of Potential Eligibility for vocational rehabilitation services as required by former section 4637. Hotel filed a Petition for Reconsideration of the Findings and Award of January 31, 2008. After granting reconsideration, the Board, on October 7, 2008, affirmed the January 31, 2008, Findings and Award of the WCJ.
None of the parties raised before the Board the issue of whether as of and after January 1, 2009, Boganim had a valid award of vocational rehabilitation services or benefits. The Rehabilitation Unit Determination, the Findings and Award by the WCJ, and the decision by the Board on reconsideration were all issued before January 1, 2009, the effective repeal date of section 139.5. Thus, before the Board, this issue was not ripe. On November 20, 2008, Hotel filed a timely petition for review with this court. We requested that the parties brief the issue of the effect on the repeal of former section 139.5. On June 10, 2009, the Board, in an en banc opinion in another case, held that the repeal of former section 139.5 terminated any rights to vocational rehabilitation benefits of services provided for or by orders or awards that were not final before January 1, 2009. (Weiner v. Ralphs Co. (2009) 74 Cal.Comp.Cases 736.)
Hotel contends the repeal of section 139.5 ended all rights that would have derived from that statute, that there is no saving clause concerning the repealed statute, and that the law in effect at the time of this court's decision must be applied. Boganim contends that the repeal of section 139.5 as of January 1, 2009, did not affect awards affirmed by the Board before that date; section 5502, subdivision (b)(3) is a saving clause; and, based on public policy and the liberal construction of the Labor Code, as mandated by section 3200, an employee must have a remedy to enforce a right when an employer was aware of an obligation to provide benefits and failed to comply with that obligation.
A. Vocational Rehabilitation
The California Workers' Compensation Law (§ 3200 et seq.) is a statutory system enacted pursuant to a constitutional grant of power to the Legislature to establish a workers' compensation system. (Cal. Const. art. XIV, § 4; § 3201.) The right to workers' compensation benefits is "wholly statutory." (Johnson v. Workers' Comp. Appeals Bd. (1970) 2 Cal.3d 964, 972; Ruiz v. Industrial Acc. Com. (1955) 45 Cal.2d 409, 414.) As part of the workers' compensation benefits, section 139.5 was enacted in 1965 to provide for vocational rehabilitation programs in order to restore injured workers to suitable gainful employment for maximum self-support after their industrial injury. (Webb v. Workers' Comp. Appeals Bd. (Webb) (1980) 28 Cal.3d 621, 628 (Webb); Edgar v. Workers' Comp. Appeals Bd. (1998) 65 Cal.App.4th 1, 11-12.) Thereafter, the Legislature enacted several changes to the vocational rehabilitation system of benefits. The system evolved from a voluntary program to one in which the employer had a statutory obligation to provide benefits to qualified workers. (Webb, supra, 28 Cal.3d at p. 628.) As a result of legislation enactedin 2004, section 139.5 was made applicable only to injuries occurring before January 1, 2004 (former § 139.5, subd. (k), Stats. 2004, ch. 34, § 5), and was to remain in effect until January 1, 2009, unless the Legislature deleted or extended that date. (Former § 139.5, subd. (l), Stats. 2004, ch. 34, § 5; Medrano v. Workers' Comp. Appeals Bd. (2008) 167 Cal.App.4th 56, 65.) The Legislature did not delete or extend that date.
B. Extinguishment of Right to Vocational Rehabilitation Benefits
"[W]hen a pending action rests solely on a statutory basis, and when no rights have vested under the statute, "a repeal of such a statute without a saving clause will terminate all pending actions based thereon.'" (Governing Board v. Mann (Mann) (1977) 18 Cal.3d 819, 829.) """If final relief has not been granted before the repeal goes into effect it cannot be granted afterwards, even if a judgment has been entered and the cause is pending on appeal. The reviewing court must dispose of the case under the law in force when its decision is rendered."'" (Id. at p. 831; see Southern Service Co., Ltd. v. Los Angeles (1940) 15 Cal.2d 1, 11-12; Krause v. Rarity (1930) 210 Cal. 644, 653 ["a repeal of the statute conferring the right, prior to final judgment, would abolish the right and place the parties in the same position as if the statute never existed"]; Napa State Hospital v. Flaherty (1901) 134 Cal. 315, 317 ["It is a rule of almost universal application, that, where a right is created solely by ...