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Los Angeles County Fire Dep't v. Workers' Compensation Appeals Board

May 25, 2010

LOS ANGELES COUNTY FIRE DEPARTMENT, PETITIONER,
v.
WORKERS' COMPENSATION APPEALS BOARD AND CLIFTON NORTON, RESPONDENTS.



PROCEEDING to review a decision of the Workers' Compensation Appeals Board. Affirmed in part, reversed in part, and remanded with instructions. (W.C.A.B. Nos. ADJ875376/LBO0317449).

The opinion of the court was delivered by: Flier, J.

CERTIFIED FOR PUBLICATION

Clifton Norton (Norton), a battalion chief for the County of Los Angeles Fire Department (County), was injured at work and was awarded vocational rehabilitation maintenance allowance at the temporary disability indemnity "delay" rate from September 8, 2005, to August 28, 2007, under Labor Code former sections 139.5 and 4642.*fn1 On December 30, 2008, the County petitioned the Workers' Compensation Appeals Board (WCAB) for reconsideration and contended that Norton was not entitled to any maintenance allowance from September 8, 2005, to September 26, 2006, and, in any case, he was not entitled to receive a maintenance allowance at the significantly higher temporary disability indemnity "delay" rate for the entire period awarded. Former section 139.5 was repealed by operation of law on January 1, 2009. The WCAB affirmed the entire award and the County petitioned this court for a writ of review, contending that Norton's right to any maintenance allowance ended with repeal of former section 139.5. We agree with the County, except for that part of the maintenance allowance that was not included in its petition for reconsideration and, therefore, became final before the repeal of former section 139.5. We affirm in part, and reverse in part, and remand the matter to the WCAB for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Norton sustained work injuries to his neck, back and right arm on July 21, 1997, and to his cardiovascular system and hearing from April 9, 1973, to September 19, 2000. On June 29, 2004, the parties entered into stipulated awards for permanent disability, but the stipulation did not include vocational rehabilitation benefits.

Norton requested reinstatement of vocational rehabilitation benefits in letters dated September 8 and 26, 2005. On September 26, 2006, Norton filed a Request for Dispute Resolution with the Rehabilitation Unit (Unit). On March 5, 2007, the Unit determined that Norton's claim for vocational rehabilitation benefits was barred by the five-year statute of limitations.

Norton appealed to the workers' compensation administrative law judge (WCJ). On July 18, 2007, the WCJ found that the claim was not barred by the five-year statute of limitations and referred the matter to the Unit "for a determination of the benefits that are due." The County filed a petition for reconsideration of the statute of limitation finding with the WCAB, which denied reconsideration on September 10, 2007. The County did not file a petition for writ of review of the denial of reconsideration.

During this period, the parties entered into a settlement of prospective vocational rehabilitation services under former section 4646, a settlement approved by the Unit.

On March 12, 2008, the Unit issued another determination that Norton was entitled to past maintenance allowance at the temporary disability indemnity "delay" rate for the period of September 8, 2005, to August 28, 2007, under California Code of Regulations, title 8, former section 10125.1. The County appealed this decision to the WCJ.

The parties proceeded to trial before the WCJ, stipulated to the facts and submitted on the record. The County contended that Norton was not entitled to maintenance allowance until he had actively pursued vocational rehabilitation by filing for dispute resolution with the Unit, which occurred on September 26, 2006. Thus, the County argued, Norton was not entitled to maintenance allowance from September 8, 2005, to September 26, 2006. The County also contended that former section 139.5 did not provide for maintenance allowance at a greater rate than $246 per week, and former section 4642, which did, had been repealed.

On December 5, 2008, the WCJ issued findings and an order determining that Norton was entitled to maintenance allowance at the temporary disability indemnity "delay" rate as ordered by the Unit and denied the County's appeal. In the WCJ's opinion on decision, he explained that "Defendant does not dispute that it owes retroactive benefits," and that Norton had in fact requested vocational rehabilitation for the period between September 8, 2005, and September 26, 2006, but the County had failed to respond, request dispute resolution with the Unit or attempt to terminate benefits. The WCJ further decided that Norton was entitled to maintenance allowance at the temporary disability indemnity "delay" rate because former section 4642 continued to apply under City of Santa Rosa v. Workers' Comp. Appeals Bd. (2007) 72 Cal.Comp.Cases 122. The WCAB had ruled in City of Santa Rosa that former section 139.5, subdivision (c) expressly incorporated former section 4642, indicating the Legislature intended it to apply, and that California Code of Regulations, title 8, former section 10125.1 had not been amended or repealed.

On December 30, 2008, two days before the repeal of former section 139.5 went into effect, the County petitioned the WCAB for reconsideration. The County argued that even though Norton was deemed to be a qualified injured worker for vocational rehabilitation due to injury to his cardiovascular system and hearing, he had not actively pursued benefits or chosen to participate under former section 139.5, subdivision (c) until he filed for a dispute resolution with the Unit. The County also contended that Norton was not entitled to maintenance allowance at the temporary disability indemnity "delay" rate because former section 4642 had been repealed and, therefore, maintenance allowance was limited to a maximum of $246 per week under former section 139.5, subdivision (d)(1). The County requested that the WCAB grant reconsideration and vacate the WCJ's order awarding maintenance allowance at the "delay" rate and for the period from September 8, 2005, through September 26, 2006.

In a report on reconsideration, the WCJ detailed his reasons for his findings and order.

On January 30, 2009, the WCAB denied the County's petition for reconsideration based on the record and the WCJ's report. The County then filed its ...


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